9th Circuit News Feed

Judge Bybee (left) gives a big boost to defense immunity in an important decision that elaborates on the Williams test -- permitting the effects of the government's immunity decisions to establish a constitutional violation. See United States v. Straub, 2008 WL 3547541, (Aug. 15, 2008), decision available here.

Players: Decision by Judge Bybee, joined by Judges D.W. Nelson and Kleinfeld.

Facts: Straub, a member of Oregon’s “White Neck Crew,” allegedly dealt drugs and shot at other dealers as he stole from them. Id. at *1. An immunized government snitch pegged Straub as the shooter in one charged robbery. Id. The defense proffered an impeachment witness who would recount a bar confession wherein the snitch admitted to being the shooter. Id. at *2. This defense witness, however, wanted immunity – and the court refused to give it. Id. at *2-*3.

After conviction at trial, the Ninth remanded in a mem dispo for an evidentiary hearing on the need for court-ordered immunity. Id. at *3.

This hearing revealed that the government had offered “use immunity, informal immunity, sentence reductions, and even cash . . . to the prosecution’s other witnesses for their testimony against Straub” Id. at *5. Eleven of twelve government witnesses had gotten some sort of break. Id. The district court nonetheless stood by its initial denial of immunity, finding no evidence of prosecutorial misconduct. Id. at *7. Straub appealed again.

Issue(s): “Straub claims that the . . . court’s refusal to compel the prosecution to grant use immunity to [his] defense witness . . . violated his due process rights under the Fifth Amendment . . . .

We must address the question left open by Williams, whether a defendant requesting compelled use immunity on the ground that his witness has relevant testimony that directly contradicts that of an immunized prosecution witness must prove that the prosecution’s purpose in denying use immunity to the defense witness was to distort the fact-finding process, or merely that the prosecution’s selective denial of use immunity had the effect of distorting the fact-finding process.” Id. at *1.

Held: “Even where the government has not denied a defense witness immunity for the very purpose of distorting the fact-finding process, the government may have stacked the deck against the defendant in a way that has severely distorted the fact-finding process at trial . . . . Id. at *12.

"[W]here the government has liberally used its discretion to grant immunity to numerous witnesses, and the defendant’s witness could offer relevant testimony that would directly contradict that of an immunized government witness, the trial may become so fundamentally unfair that the defendant’s due process rights are implicated.” Id.

“We now hold that for a defendant to compel use immunity the defendant must show that: (1) the defense witness’s testimony was relevant; and (2) either (a) the prosecution intentionally caused the defense witness to invoke the Fifth Amendment right against self-incrimination with the purpose of distorting the fact-finding process; or (b) the prosecution granted immunity to a government witness in order to obtain that witness’s testimony, but denied immunity to a defense witness whose testimony would have directly contradicted that of the government witness, with the effect of so distorting the fact-finding process that the defendant was denied his due process right to a fundamentally fair trial.” Id. at *14.

"We reverse the district court's denial of Straub's request to compel use immunity." Id. at *18.

Of Note: Straub is a leading case on defense immunity with a valuable new rule for the most-likely trial scenarios.

In Williams v. Woodford, the Ninth held that a refusal to grant immunity rises to a constitutional violation when 1) the defense witness’s testimony is relevant, and 2) the prosecution’s refusal to grant immunity deliberately distorted the fact-finding process. 384 F.3d 567, 600 (9th Cir. 2004). Good luck, of course, getting a prosecutor to admit to “deliberate distortion.”

Straub’s new rule is that the defense can prove this second prong by showing that the effects of immunity for government witnesses – with no immunity for defense witnesses – “stacked the deck against the defendant.” Id. at *12. This is a much more manageable defense burden: proof of prosecutorial intent via proof of effects.

How to Use: Ask! The government here argued that the defense never formally requested use immunity. Id. at *16 n.9. Luckily, Judge Bybee rejects that complaint as too formalistic – but why run the risk? A brief letter or a formal request on the record for a government grant of immunity helps to block this government dodge.

For Further Reading: It helps to know the DOJ’s immunity rules when going down this road. They can be found here.




Image of Judge Jay Bybee from http://www.ibabuzz.com/politics/2008/02/13/circuit-judge-accused-of-pro-torture-bias/

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org.



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The government developed a sudden concern for defendants' rights to proper plea advisements in Garcia-Aguilar -- and Chief Judge Kozinski ain't buying it. Garcia-Aguilar v. United States District Court for the Southern District of California, 2008 WL 3009680 (9th Cir. Aug. 6, 2008), decision available here. This laudable San Diego Defender mandamus victory is a defense win in a quirky little corner of Section 1326 law, with some good ramifications for other defense strategies.

The case does, however, embrace a rule that promotes sloppy advisements during guilty pleas -- not a great development for Rule 11 practice.

Players: Nice win for San Diego Defenders Zandra Lopez, Michelle Betancourt, and Shaffy Moeel. Former San Diego AFPD David Zugman on the team with the briefing and on oral argument.

Facts: San Diego had “defective” § 1326 indictments, that failed to allege that an alien had been removed from the country after having been convicted of a felony. Id. at *1. The Ninth has held that this flaw is Apprendi error that (theoretically) limits a defendant’s exposure to two years. Id. at *2 (citing United States v. Covian-Sandoval, 462 F.3d 1090 (9th Cir. 2006)).

Garcia-Aguilar and other § 1326 defendants entered guilty pleas before the magistrates to these indictments. After the guilty pleas the government “belatedly” brought superseding indictments that alleged the necessary missing fact. Id. To fix its mistake, the government argued that the original guilty plea colloquies were defective, because the magistrates had advised the defendants they were looking at twenty years – when in reality, they were only looking at two years because of the “defective” indictment. Id.

On the government’s motion, the district courts refused to accept these unconditional guilty pleas. Id.

Issue(s): “We consider the district court’s refusal to accept defendants’ unconditional guilty pleas.” Id. at *1.

Held: “The district court shall accept defendant’s unconditional pleas to the original indictments.” Id. at *4.

Of Note: As Arizona Defender Jon Sands has noted, Chief Judge Kozinski gives us the following wonderful quote: “These consolidated cases show again why the ten most terrifying words in the English language may be, ‘I’m from the government and I’m here to help you.” Id. at *1. Hard to fault a decision that is both a defense win and that mocks the government.

The troubling holding, however, is that it doesn’t matter how badly a court screws up an advisement at a plea, as long as it gets the highest possible maximum sentence right. Id. at *2. (Here, the magistrates were eighteen years off). Why not just guess “life,” and avoid any potential Rule 11 error? When a plea advisement is just a wild stab at the worst-case-scenario, then it stops becoming an advisement altogether. This Garcia-Aguilar "advisement rule" isn’t new, and maybe its full scope will be limited to these odd facts, but the case doesn’t exactly encourage careful practice in the trial courts.

How to Use: Does this mandamus decision have application beyond this quirky corner of Section 1326 litigation? It does, in our post-Apprendi world. Occasionally the feds screw up an indictment and fail to allege a fact that increases a statutory maximum sentence. What happens if a defendant jumps on that defect and pleads guilty out of the gate? Game over – under Garcia-Aguilar, the government can’t supersede: “the government has no power to force the defendant to go through the ordeal again to serve its own purpose.” Id. at *3. If this results in a dramatically lower sentence for the defendant, then “so be it.” Id. at *4. Moreover, if the district court balks, mandamus lies to force the court to take the plea.

Of course, there’s a caveat or two. In Garcia-Aguilar, there were no other crimes with which to charge the defendant: illegal reentry was the only arrow in the government’s quiver. That’s usually not true, where many other potential charges (not Blockburger-barred) can be brought in a superceding indictment. (Think “receipt” of child porn versus straight “possession,” or a spare § 924(c) charge).

Moreover, Garcia-Aguilar and his other consolidated defendants aren’t out of the woods, yet. In United States v. Salazar-Lopez, for example, there was a similar problem with the indictment – but the Ninth “cured” it through the magic of harmless error analysis. 506 F.3d 748, 752 (9th Cir. 2007). Undoubtably those clever San Diegians have figured out how to skirt this problem, but the Salazar-Lopez harmless error “cure” illustrates that the “quick plea” strategy still carries with it some dangers.

For Further Reading: Can a court stall a defendant’s quick guilty plea, to let the government allege priors and to fix mistakes in the indictment? Yep. See 21 USC § 851(a)(1) (allowing delay for good cause); see also United States v. Duffy, 179 F.3d 1304, 1305 (11th Cir. 1999) (notice of priors filed by government during plea hearing timely).


Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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In an important decision that has real-world impact for our clients, Judge Fisher (left) emphasizes the discretion of a district court to fashion a sentence that avoids full custodial confinement. See United States v. Ruff, 2008 WL 2940535(9th Cir. Aug. 1, 2008), decision available here. The opinion sparks a vigorous dissent from Judge Gould, however, who articulates a worrisome skepticism about white collar sentences. See id.

Players: Interesting split: authored by Judge Fisher, joined Judge by Ikuta (W. Bush appointee), dissent by Judge Gould (Clinton appointee).

Facts: Ruff stole stuff. A hospital employee, he took over $640k worth of supplies and sold it on eBay. Id. at *1. When caught he confessed, and ultimately pled guilty to health care fraud, theft, and money laundering. Id. at *1. The PSR’s range was 30-37 months. Id.

At sentencing the judge worked through the § 3553(a) factors, noting Ruff’s employment history, his cooperation and remorse, his support from his siblings, the absence of risk to the public and the appropriateness of restitution, and Ruff’s mental health problems – including pathological compulsive gambling. Id. at *1. The court sentenced Ruff to a year and a day at a particular residential confinement facility, so Ruff could get work release, visit his son, and get counseling. Id. at *1.

When the judge discovered that this jail could only house Ruff if it was a condition of supervised release, he flipped the sentence to one day of BOP custody and three years supervised release – with a condition of a year and a day in the same facility. Id. at *2. The government appealed.

Issue(s): “The government insists that this modification overstepped the bounds of the district court’s sentencing authority.” Id. at *1.

Held: “We disagree. Applying the requisite deferential standard of review, we conclude that the district court did not abuse its discretion and that the sentence it imposed is reasonable.” Id. at *1.

Of Note: Judge Gould isn’t happy. Id. at *4 (Gould, J., dissenting) (“Ruff’s sentence with only one day of imprisonment is not reasonable and we should say so in no uncertain terms.”) The gist of his dissent is that Ruff is a white collar criminal, the whole sentence had been manipulated so Ruff could go to a residential confinement center, and that courts are too soft on white collar crime. Id. at *5-*6. “It seems inescapable that we as a court need to spend more time thinking about the appropriate punishment for white collar crime.” Id. at *6.

In response, Judge Fisher counters with a great collection of low sentences given in a range of crimes. See id. at *3 & n.1. He concedes that “more time thinking about the appropriate punishment for white collar crime” may be appropriate, but counters that Ruff’s case wasn’t treated any differently than other crimes. Id.

Judge Gould’s dissent is worrisome. There are plenty of “liberal” judges who are tired of meting out decades of mandatory-minimum sentences to minority drug defendants, and probation to white, white collar criminals. Of course, unfair and unjust sentences for drug crimes do not require the same unfair and unjust sentences for all crimes. With mortgage fraud cases exploding, however, Gould’s trend bodes ill for our future white collar clients.

How to Use: The important Ruff rule? With the proper § 3553(a) showing, a district court can craft a sentence to control the conditions of confinement and to provide alternatives to incarceration. One of these questions that we had as Apprendi law developed was whether this new sentencing power would let a judge get into the nitty-gritty of custodial conditions.

Turns out, after Gall and Ruff, it does – and with the right § 3553(a) showing, these sentences are safe on appeal. Use Ruff to push for split sentences, home confinement, and intermittent confinement. As in Ruff, use “conditions of supervised release” as the stick to make the mulish BOP actually follow the district court’s orders.

For Further Reading: By happy coincidence, our fellow blogger Steve Sady has just finished his magnum opus “The Sentencing Commission, The Bureau of Prisons, And The Need For Full Implementation Of Existing Ameliorative Statutes To Address Unwarranted And Unauthorized Over-Incarceration.” See blog posting here.

It is excellent.

Sady’s article and Ruff are the keys out of hard custodial time for many of our clients: use both in your next sentencing memo.


Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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Did the subject of a warrantless car search have the skill of Houdini and the strength of Hercules? See decision at *20.

The Ninth ain't buying it, in a wonderful decision that restores some of the battered Fourth Amendment protections associated with car searches. United States v. Caseres, No. 06-50546, 2008 LEXIS 15575 (9th Cir. July 21, 2008), decision available here.

Players: Important win by CD Cal AFPD Jonathan Libby. Decision by Judge Pregerson, joined by Judges Bright (8th Cir.) and Wardlaw.

Facts: An unmarked L.A. cop car tailed Caseres’s car for blocks at 9:45 p.m. The cops were suspicious of Caseres’s failure to signal a turn and the car’s tinted windows. Id. at *2. [Ed. note: see what Whren has wrought!]

When Caseres lawfully parked, a uniformed cop got out and told Caseres to stop as he walked toward his house. Id. at *3. “Fuck you, I’m home,” the defendant replied. Id. As the cop tried to stall for time Caseres opined, “I’m going to kick your fuckin’ ass,” which earned him a shot of pepper spray, which then devolved into a footchase. Id. at *4-*5.

“Well after” he had been taken into custody, the cops searched his car and found a gun and ammo. Id. Caseres was charged with § 922(g), and entered a conditional plea to preserve his suppression motion. Id. at *6.

Issue(s): “We must decide whether Lt. Murphy had a reasonable basis to detain Caseres, and whether the warrantless search of the passenger compartment of Caseres’s car was constitutional as a search incident to a valid arrest, an inventory search, or a parole search.” Id. at *6.

Held: 1. Incident to Arrest? “The district court improperly held that the search of Caseres’s car was constitutionally permissible as a search incident to arrest. [W]e conclude that the search of Caseres’s car was characterized by neither the spatial nor the temporal proximity to the place and time of the arrest required to constitute a valid search incident to arrest.” Id. at *11.

2. Inventory Search? “We reverse and hold that the police lacked the authority to impound and conduct an inventory search of Caseres’s car – which was lawfully parked on the street two houses away from his residence – because doing so did not serve any community caretaking purpose.” Id. at *25.

3. Parole Search: “Because the record does not establish that Lt. Murphy was aware that Cal. Pen. Code § 3607 applied before he ordered the search of Caseres’s car, the search is not justified by the state’s interest in supervising probationers.” Id. at *30-*31 (emphasis in original).

Of Note: Because there’s so much of value to mine in Caseres, the parole search issue is an easily-overlooked nugget. Note that Caseres was on parole, and the cops knew it before the search. Id. at *29. In California, parolees for offenses committed after January 1, 1997, must agree to a warrantless search condition. Id. at *29. Here, however, the cop didn’t determine whether Caseres was on California parole, for a post-‘97 offense, before the car search. Id. at *29.

Hence a good, common-sense rule: the cops have to know the subject is on parole and has a search condition before that favorite excuse works for a warrantless search. Id. at *30-*31.

How to Use: The “search incident to arrest” holding is probably the rule with the broadest potential application in Caseres. The Court reviews the confusing law on this warrant exception. Id. at *12. In sum, there’s much conflicting law on the temporal and spatial limitations permitted to still permit a search. (“So much for bright lines.”) Id. at *23.

Caseres gathers the different scenarios, and concludes that – in this case – the defendant had been gone from the car too long, and was too far away, to justify the search. Caseres should be the starting point for this fact-intensive analysis in future “incident to arrest” search cases.

For Further Reading: Unfortunately, it is Judge – and not Justice – Pregerson, so he can’t decide the big issue: “whether law enforcement officers must demonstrate a need to preserve evidence relating to the crime of conviction to justify a warrantless vehicular search incident to arrest.” Id. at *20.

That’s the question the Supremes have up in Arizona v. Gant, 128 S. Ct. 1443 (2008). What the Honorable H.P. can do is to emphasize that Belton – the vehicle search case – has been “sharply criticized” by many Justices. Id. at *12 & n.5.

Judge Pregerson’s footnote five is the starting point for the right result in Gant. Of course, the right result is not always the SCOTUS outcome. See "Simple Justice" blog commentary here.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org


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In a great decision invoking our beloved "rule of lenity," Judge Silverman holds that the aggravated identity theft statute - 18 USC Section 1028A -- requires proof that the defendant knew that the card used came from a real person. United States v. Miranda-Lopez, __ F.3d __, 2008 WL 2762392 (9th Cir. July 17, 2008), decision available here.

Players: Decision by Judge Silverman joined by Judge Berzon; dissent by Judge Bybee.

Facts: El Salvadorean Miranda-Lopez was arrested at the border when he was stopped in a car with two other men. (WL star cites not yet available). Miranda-Lopez’s identification card – in the name of “Garcia-Fregoso” – didn’t match his face or fingerprint. He was arrested and tried for illegal reentry and for aggravated identity theft, under 18 USC § 1028A. (Note that § 1028A carries a two-year mandatory minimum consecutive sentence).

The jury instructions did not require the government to prove that Miranda-Lopez knew that the I.D. actually belonged to another real person. The defense brought several Rule 29 motions before the verdict, but did not raise this “knowledge” challenge. The district court denied these motions and there was a guilty verdict – but the judge mused that the real § 1028 issue was this “knowledge” question.

Catching the hint, the defense finally raised the mens rea issue in post-verdict Rule 29 motion. The trial court denied the motion, holding the knowledge issue had been waived because it had not been articulated by the defense before the jury verdict.

Issue(s): “The issue here is whether the defendant must know that the identification he uses belongs to another person. In other words, does the adverb, ‘knowingly’ in the statute modify ‘of another person’ or merely ‘transfers, possesses, or uses’?”

Held: “Today we join the D.C. Circuit in holding that the crime of aggravated identity theft, 18 U.S.C. § 1028A(a)(1), requires proof that, among other things, the defendant knew that the means of identification belonged to another person. It is not enough to prove only that the defendant knew he was using a false document.”

Of Note: This is a great decision on a horrible statute, but the opinion is also of interest for its Rule 29 remedy. The majority and dissent agree that the sufficiency of the § 1028A jury instruction should be reviewed for plain error – and that there was not plain error because of (then) ambiguities in the law. Nonetheless, the panel remands for reconsideration of the Rule 29 motion, because Miranda-Lopez had finally raised the “knowledge” issue in a brief a week after trial. The panel holds, “Miranda-Lopez did not waive the issue by failing to raise it until after the jury was discharged.”

This is interesting Rule 29 law: it means the defense needn’t specify its theory of dismissal during pre-verdict Rule 29 motions in order to preserve legal arguments for dismissal (though the panel does observe, here, that the prescient trial court was on sua sponte notice about the mens rea issue).

How to Use: The two-year mand-min sentence of Section 1028A is the new hammer joyfully abused by lazy or fearful prosecutors to coerce pleas in otherwise triable cases. Miranda-Lopez creates a welcome new defense to this hated statute. Look for new model jury instructions on Section 1028A offenses in light of Miranda-Lopez, and make sure to submit revised instructions until the Ninth's model instruction committee gets around to this task.

Note, though, that this defense can still be challenging: as Judge Silverman muses, the new mens rea requirement “is not an insurmountable burden [for the government], especially in a case where the identification document contains someone else’s photo and does not appear to be a fake.”

For Further Reading: Boston AFPD Martin Richey has written an excellent outline on identity theft and aggravated identity theft, available here. Martin there chronicles a circuit split over the mens rea requirement at issue in Miranda-Lopez. The Fourth, the Eighth, and the Eleventh Circuits have found no “knowledge of real person” element. The D.C., and now, the Ninth Circuits require this mens rea element.

Let’s hope the Supremes let this split deepen a bit before snooping around this issue.



Image of the Honorable Barry Silverman from the Sandra Day O'Connor School of Law, at http://www.law.asu.edu/?id=1218

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org


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A slow week in the Ninth has us stretching back a bit to the intriguing July 1st decision of Kawashima v. Mukasey, __ F.3d __, 2008 WL 2579212 (9th Cir. July 1, 2008), decision available here. Though technically an immigration case, Kawashima is an important decision in the criminal context as well -- particularly in fraud cases involving non-citizens. Beware, however, that Taylor issues are bouncing around en banc (and possibly, cert.) reviews -- and a developing little Fifth/Ninth Circuit split doesn't help matters.

Players: “Special” cert. petition – er, concurrence – by Judges O’Scannlain and Callahan.

Facts: Akio and Fusako Kawashima were Japanese citizens and US Legal Permanent Residents. Id. at *1. Mr. Kawashima pleaded guilty to “false statement on a tax return,” and his plea agreement said the actual tax loss was $245,126. Id. The INS tried to remove him, alleging this was an agg felony because it was a fraud offense with a loss amount over $10,000. Id.; see also 8 USC § 1101(a)(43)(M)(i). The I.J. and the B.I.A. agreed – as did this Ninth Circuit panel, the first go-around. Id.

The day after the panel's first decision, the Ninth decided Navarro-Lopez v. Gonzalez, 503 F.3d 1063 (9th Cir. 2007) (en banc) (blog here), and the panel (grudgingly) revisited its original Kawashima decision.

Issue(s): 1. Is tax fraud categorically an aggravated felony, when the statute does not contain an element that the fraud loss be over $10,000?

2. Can the court look the documents of conviction, to determine if the fraud loss was over $10,000 and – therefore – was an aggravated felony?

Held: 1. “[The tax fraud statute does not] required proof of monetary loss in excess of $10,000 . . . and is “too broad to be a categorical match.” Id. at *2. [T]he Kawashimas’ prior convictions do not qualify as aggravated felonies under the categorical approach.” Id.

2. “[B]ecause the statutes to which the Kawashimas pled guilty to violating do not require proof of any particular monetary loss, we do not examine the record of their convictions to determine whether they necessarily pled guilty to causing a loss in excess of $10,000.” Id. at *5.

Of Note: Much is bubbling in the jurisprudential goo of the Taylor categorical analysis. The Kawashima panel’s reluctant concession that tax fraud can never qualify as an agg felony is followed by a “special concurrence” that reads a lot like a cert. petition (let's whistle past the graveyard).

Here’s three other big Taylor issues that are percolating in the Circuits. First, say the statute of conviction is missing an element that the “generic” offense requires – like here, a loss amount over $10k. Can the court look at the plea agreement of the crime of conviction, find that the loss clearly exceeded this amount, and hold that the conviction is an agg felony? No, after Judge Harry Pregerson’s wonderful en banc decision in Navarro-Lopez – but one has to concede that a chunk of the Court is not keen on that rule.

Issue two: assuming that the Court finally gets around to the modified categorical approach, can it use cruddy evidence like minute orders in its analysis? The Ninth is considering that question now, in the Snellenberger en banc case.

Finally, is the California burglary statute similar to the federal tax fraud statute – a crime that can never be a categorical agg felony because it is missing an element? “Yep,” argues appellate guru Steve Hubachek in a righteous Federal Defender amicus in Snellenberger (and he’s right).

How to Use: Kawashima is an immigration case with important criminal ramifications. First, does this case relieve defense counsel of agg felony worries in fraud cases? Traditionally, non-citizens defendants have had to beg, plead, snitch and fold to dodge fraud convictions that would have been agg felonies. Maybe this decision takes away one arrow from the government’s quiver, allowing more non-citizen fraud defendants to fight their cases? Deserves more thought.

The case also illustrates that one can’t take enhancement priors for granted after Taylor. Here, a tax fraud of over $200k isn’t a “fraud over $10,000” in the agg felony analysis. In the Snellenberger amicus, Hubacheck persuasively argues that a California burglary isn’t a Career Offender predicate “burglary” because the California crime doesn’t have the “unprivileged entry” element required in the federal statute. These close Taylor analyses aren’t easy or intuitive, but their outcomes can be the single most important issue in a defendant’s or alien’s case.

For Further Reading: As our Texas colleague Brad Bogan has noted, Kawashima marks a squirrely split between the Fifth and Ninth Circuits. See Fifth Circuit blog here. The Fifth agrees with the Ninth’s good Taylor rule in Navarro-Lopez, but nonetheless holds that in an agg felony analysis the amount of a fraud can be found by a review of the underlying conviction documents (maybe this is a modified, modified-categorical analysis? A revised modified-categorical analysis?). See Arguellas-Olivares v. Mukasey, 526 F.3d 171 (5th Cir. 2008) (decision here, blogged here).

Confused yet?

Thanks to Arizona AFPD Brian Rademacher, for alerting the Defender community to the Kawashima decision.

Steven Kalar, Senior Litigator N.D. Cal. F.P.D. Website at www.ndcalfpd.org

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The Sentencing Commission has invited federal defenders to participate in its Symposium on Alternatives to Incarceration in Washington, D.C., on July 14 and 15, 2008. In preparation for the symposium, we have prepared an article entitled The Sentencing Commission, The Bureau of Prisons, And The Need For Full Implementation Of Existing Ameliorative Statutes To Address Unwarranted And Unauthorized Over-Incarceration, which is available here. We explain how sentences are being executed to require more actual custody time, at the cost of hundreds of millions of dollars, due the failure to fully implement statutes that provide for good time credits, incentives for substance abuse treatment and boot camp participation, sentence reductions for “extraordinary and compelling circumstances,” credit for time in custody and concurrent time, and community corrections. The article not only provides estimated savings from full implementation of ameliorative statutes, we also trace the litigation history, which provides an update for our litigation outline, which is available here. The hard-to-find supporting documents are posted here.

Edwin Starr's classic tune, "War" isn't quite the apt fit suggested in the title of this blog entry: the Ninth's recent sentencing decision in Warr is "good for" a little something -- though it takes a close read to find the silver lining in this dark cloud. United States v. Warr, __ F.3d. __, 2008 WL 2598891 (9th Cir. July 2, 2008), decision available here.

Players: Decision by Judge Tallman, joined by Kleinfeld and Tashima.

Facts: Jonah Warr was a mentally-ill 19-year old who started up to twenty forest fires in Montana. Id. at *1, *2. After pleading guilty to nine counts of arson, he proceeded to sentencing with a guideline range of 70-87 months. Id. at *2.

Montana District Judge Molloy departed upwards to 120 months with a § 3553(a) variance. Id. at *4. Among the factors used by Judge Molloy was a Bureau of Prisons study on recidivism that posited younger offenders rescinded more often – the court estimated that Warr “had a two-out-of-three chance of recidivating.” Id. at *3. Those odds weighed in favor of a longer sentence. Id.

The court had not noticed or disclosed the BOP report to the parties before sentencing. Id.

Issue(s): “Warr takes issue with the district court’s apparent reliance on the Bureau of Prisons’ study. According to Warr, this reliance was problematic because the study was not part of the record, it did not take into account mental illness, and it was not provided to the parties in advance of the sentencing hearing.” Id. at *8.

Held: “Because the district court relied on this study, it should have notified Warr of it before the sentencing hearing.” Id. at *9. [But, ultimately, the sentence is upheld on plain error review.]

Of Note: When we first heralded the Apprendi revolution, some of our grizzled colleagues warned against greater discretion for a sentencing court. Warr vindicates those warnings. Judge Tallman here trumpets the district court’s discussion of the § 3553(a) factors as a “model of thoroughness and careful deliberation.” Id. at *6. With all due respect, that isn’t the impression the opinion gives. For example, the sentencing court poached (negative) diagnoses from the defendant’s shrink to increase the sentence, but rejected the shrink’s treatment recommendations (without explanation). Id. at *7.

Policy wonks can debate the overall impact of Booker, but Warr illustrates that among the victories there will be some losers under an advisory guideline system.

How to Use: June brought us the lousy Supreme Court decision in Irizarry v. United States, 128 S. Ct. 2198 (2008). In Irizarry, the Court held that Federal Rule of Criminal Procedure 32(h) does not require notice of a court’s intent to impose a § 3553(a) upward variance. Id. at 2200. (Contrast this to an upward departure from the guideline range, which does require notice). Warr’s one redeeming holding is that – Irizarry aside – a sentencing court must provide notice of facts used to impose an upwards variance. Id. at *8.

Here, the district court erred because it did not provide advance notice of the BOP study before it used it to impose an upward § 3553(a) variance. Warr lost on appeal, however, because the defense didn’t object at sentencing, leading to plain error review. Avoid plain error – object when the district court ruminates on facts, articles, and private phone calls to the Sentencing Commission or to the BOP that weren’t part of the sentencing process.

This principle might also extend to the government’s new cynical gambit of “instructing” Article III judges to review child pornography with agents before sentencing. (A bald ploy to inflame emotions at sentencing – particularly when there is no factual dispute over the nature of the images). Cite Warr, and insist on being there – maybe with the client? – during this review.

For Further Reading: Eleven years ago an en banc court of the Ninth decided United States v. Sablan, 114 F.3d 913 (9th Cir. 1997). This opinion upheld a whopping sixteen-level upward departure for a Guam case involving a grenade lobbed towards a post office. Id. at 914. Bad news for Sablan, but – oddly – an important development for the defense bar. Sablan signaled increased discretion to depart from the guidelines, and was later cited in support of the district court’s broad discretion to depart downwards. See e.g., United States v. Lipman, 133 F.3d 726, 730 (9th Cir. 1998).

Warr is the Sablan for the post-Booker era. Note that a 38% upwards § 3553(a) variance survived “reasonableness” review in Warr. Use the Tao of Warr to support the 38% downwards variance in your next sentencing case.


Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org.


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As we mourn the passing of Ninth Circuit Judge Warren Ferguson (left), one of his younger colleagues (Judge Kim Wardlaw, right) continues his admirable legacy by holding the government to the full proof requirements of Section 111. See United States v. Chapman, __ F.3d __, 2008 WL 2485566 (9th Cir. June 23, 2008), decision available here.


Players: Great win by San Diego Assistant Federal Defender Steven Barth.

Facts: Chapman allegedly “cut in line” at a border checkpoint. Id. at *1. Border agents stopped him, told him to move out of line, and when he refused, tried to physically “escort” him out of line. Id. Chapman “tensed up,” and “took a rigid stance” when the agents tried to cuff him. Id. An agent struck him in the thigh with a baton. Chapman told the agent, “hit me again,” the agent did so “to no effect” – so the agent pepper sprayed him and cuffed him. Id. (Ed. note: All this for (allegedly) cutting in line?)

Chapman didn’t attempt to strike the agent or use profanity. Id. Chapman was charged with 18 USC § 111(a), “resisting and impeding” a federal officer. Id. He was convicted at a bench trial of a misdemeanor; the court denied the motion for acquittal. Id. at *2.

Issue(s): Is an “assault” “required for a § 111 conviction?” Id. at *5.

Held: “[W]e . . . hold, as suggested by the majority of our sister circuits, that convictions under this statute require at least some form of assault. Section 111(a) creates two distinct offenses, a misdemeanor and a felony, and Congress has distinguished between these two offenses using language that is only meaningful when describing assaults.” Id. at *5. “Because § 111(a) allows misdemeanor convictions only where the acts constitute simple assault, and because Chapman’s nonviolent civil disobedience did not constitute a simple assault, we reverse and vacate the judgment of conviction.” Id. at *1.

Of Note: Districts with federal parks, recreation areas, military bases and reservations see a fair share of Section 111 prosecutions. Like Section 1326 cases, this opinion illustrates that a simple crime – a Section 111 offense – can raise extraordinarily complicated legal issues.

Judge Wardlaw’s analysis wasn’t made any easier by the Section 111 statute itself, which was “inartfully drafted,” id. at *3, or authority from other circuits that was “hardly a model of clarity,” id. at *5. In a thoughtful opinion Judge Wardlaw cuts through this confusion and creates a simple rule: a misdemeanor Section111 conviction requires a simple assault – not merely resisting arrest, and not merely disobeying orders. (An assault is “either a willful attempt to inflict injury upon the person of another, or . . . a threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm.” Id. at *4.)

How to Use: The good news is, we’ve been arguing Wardlaw’s new rule for years in § 111 cases. The bad news is, Chapman deals with an old version of the statute. A new, amended version became effective January 7, 2008. See id. at *1 & n.2.

The amendment changes the penalty subsection of § 111(a), which defines what constitutes a felony offense under the statute. See “Court Security Improvement Act of 2007,” PL 110-177, 2008 HR 660 (2007). While Chapman analyzed the old statute, nothing in the amended ‘08 version seems to affect the decision’s holding that a misdemeanor § 111 offense requires simple assault.

For Further Reading: As noted above, Judge Warren Ferguson died last week, at the age of 87. He was elevated from the C.D. Cal. bench by Carter in ‘79, and took senior status in ‘86. He served in the Army, in North Africa and Italy in WWII. He lost his son, Jack, during Vietnam.

Judge Ferguson actively sought clerks who were committed to “social justice.” His opinions reflected his passion for justice: in Chase, he strongly championed the right of an indigent defendant to retain an expert. In Luong, he rejected the government’s attempt to hide behind the good faith exception to salvage a warrant lacking in probable cause. In Snellenberger, he refused to allow criminal minutes and abstracts of judgment as fodder for the “modified categorical” sentencing analysis. In his compelling Clark dissent he warned,

The Constitution cannot be interpreted according to the principle that the end justifies the means. The sexual abuse of children abroad is despicable, but we should not, and need not, refashion our Constitution to address it.

Ferguson was a great judge and a great champion for the poor, for minorities, and for the oppressed. He will be sorely missed.

Above image of Judge Warren Ferguson from Cal Law, here.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org



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Ever notice that cops behaving badly create the best defense decisions? For example, cops beat the daylights out of Rodney King, get convicted, and generate the Supreme Court's seminal case on sentencing departures. Koon v. United States, 518 U.S. 81 (1996). Prison guards terrorize inmates, are convicted, and generate the seminal decision on bail pending appeal. United States v. Garcia, 340 F.3d 1013 (9th Cir. 2003). And now, in Quon, a SWAT cop uses his work pager to send sexually-explicit texts (and lots of them), and generates the nation's leading decision on Fourth Amendment protections in digital content. Quon v. Arch Wireless, __ F.3d __, 2008 WL 2440559 (9th Cir. June 18, 2008), decision available here. Keep up the good work, Lads and Lassies in Blue.

Ribbing aside for a moment, Quon is an important and well-written decision that merits a very close read by anyone one interested in privacy issues, Fourth Amendment protections, and how those concerns play out in the new digital era.

Players: Another great decision by Judge Wardlaw, joined by Judge Pregerson and District Judge Ronald Leighton.

Facts: SWAT Cop Quon was given a pager by the City of Ontario, with an allotted number of characters. Id. at *1. He repeatedly exceeded his allotment and paid for the overages. Id. at *3. No one read the texts when this happened. Id. The cop in charge of the pager account got tired of billing Quon personally for the overages, so the Police Department got transcripts of Quon’s texts from service provider Arch Wireless. Id. at *3-*4. Turns out the texts included personal, sexually-explicit messages. Id. at *4. Quon and others to whom he texted and from whom we was texted sued Arch, the City, and police supervisors. Quon appealed (civil) Rule 59 motions from the federal district court. Id.

Issue(s): “Do users of text messaging services such as those provided by Arch Wireless have a reasonable expectation of privacy in their text messages stored on the service provider’s network?” Id. at *10.

Held: “We hold that they do.” Id. “[U]sers do have a reasonable expectation of privacy in the content of their text messages vis-a-vis the service provider.” Id. at *11.

Of Note: Quon is rich with holdings that will keep law reviews busy for years. Judge Wardlaw pragmatically analogizes a text message (and, by extension, e-mail) to snail mail. The Fourth doesn’t protect the address on an envelope, but does protect the contents of the letter within. Id. Similarly, the “address” of a digital message (the phone number or e-mail address) is not protected by the Fourth, but the content of the message is. Id.

(Aside: OK, bring on the anonymous comments questioning why this snail mail analogy is apt in Quon, but the analogy of a computer to a briefcase is not persuasive in Giberson. I'll respond and explain. Here's a hint: in Quon, Judge Wardlaw correctly focuses on the privacy interest in content. In Giberson, Judge Wallace (incorrectly, in our view) focuses on the 'storage' aspect of a computer at the expense of many other characteristics of a computer that raise privacy concerns. Keep an eye out for the Giberson en banc petition).

Note also that it isn’t only the subscriber of the pager that has a privacy interest in Quon – so do the others who texted him and who received texts from him! Id. at *12 (holding that other plaintiffs who received and sent the texts had a Fourth Amendment privacy interest).

There are, admittedly, some caveats. Here, because of some fact-specific practices Quon wasn’t on notice that his texts would be read. He thus had an expectation of privacy. On different facts that expectation may not be the same. Nonetheless, Quon will be a cornerstone case for Fourth Amendment litigation in the digital age.

How to Use: Quon’s rule is that the content of messages – phone calls, letters, e-mails or texts – are protected by the Fourth Amendment. In Quon, the content was improperly obtained from the text/pager service provider. In another case, the content may be improperly obtained by a cop’s warrantless search of an iPhone, Blackberry, P.D.A., or pager, seized during an arrest.

(We think) the Fourth Amendment prohibits warrantless searches of electronic devices recovered from a person during an arrest. The Northern District of California's own Judge Illston so held in United States v. Park, 2007 WL 1521573 (N.D. Cal. May 23, 2008) (ord.). The reasoning of Quon proves her both correct, and prescient.

Our challenge after Quon is to push the definition of Fourth Amendment “content.” E-mails and pager text messages are protected content. Subject lines in e-mails should be considered content as well, and instant messages too. IP addresses and URLs? An IP address isn’t “content,” thanks to the poorly-reasoned Forrester decision. See blog here. But, as even Forrester concedes, a URL might be. Id.

For Further Reading: Those clever digital-privacy gurus at the Electronic Frontier Foundation nailed Quon as a Big Case the minute it hit the web. For Jennifer Grannick’s very thoughtful dissection of the decision – including its many holdings and broad implications – visit her post here. As Grannick astutely opines, “Wow.”

The decision itself relies heavily on a law review article, Orin S. Kerr, A User’s Guide to the Stored Communications Act, and a Legislator's Guide to Amending It, 72 GEO. WASH. L. REV. 1208, 1209-13 (2004). Professor Kerr has blogged the Quon decision here. As the good prof explains,

The reasoning [in Quon] is broad: It pretty clearly indicates that there is a default of a reasonable expectation of privacy in not only text messages but also e-mails. It also further cements the emerging content/non-content distinction that I have been expecting courts to grab on to for some sort of certainty in this area.

Id.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org


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Looking for cheap witticisms at the Ninth's expense, gleaned from last week's headlines? Ain't nothin' here. Y'all best be movin' on, compadre.

We instead focus on the interesting, though disappointing, decision on loss calculations from Judge Reinhardt (right). United States v. Santos, __ F.3d __, 2008 WL 2312391 (9th Cir. June 6, 2008), decision available here.

Players: Hard-fought appeal by (then) ED Cal AFPD, (now) ND Cal AFPD Ned Smock.

Facts: Santos and a co-conspirator used checks stolen from the mail as templates to produce counterfeit checks. (WL star cites not yet available). The counterfeit checks were then cashed by others. Santos pleaded guilty to various charges.

The PSR hit him with almost $300k in loss, adding both the value of the stolen checks and the value of the counterfeit checks. The district court rejected Santos’s complaint that only the value of the counterfeit checks should count and sentenced the defendant to seventy-seven months.

Issue(s): “Whether a district court may use the face value of stolen checks in estimating the intended loss of a counterfeit scheme is a matter of first impression in this circuit.” . . . “Santos argues that the district court erred in using the total face value of the stolen checks, rather than the counterfeit checks, to determine intended loss for the purposes of a sentencing enhancement under § 2B1.1(b)(1) of the United States Sentencing Guidelines (“U.S.S.G.”).”

Held: “We agree with the approach of the Third and Eleventh Circuits. Absent evidence to the contrary, the district court may reasonably infer that the participants in a counterfeiting scheme intend to take as much as they know they can. Thus, where the scheme involves using stolen checks as templates for counterfeiting, the face value of the stolen checks is ‘probative’ of the defendants’ intended loss, as it is the amount that the participants know is in the accounts from which they are drawing.” . . . .“Adopting the approach of the Eleventh Circuit in United States v. Grant, 431 F.3d 760 (11th Cir.2005), we hold that, in cases such as this, a district court may reasonably infer, absent a showing to the contrary, that the defendant intended to cause loss up to the full face value of the stolen checks. Because the district court did not clearly err in finding that Santos intended to cash counterfeit checks up to the face amount of the stolen checks, we affirm its application of a 12-level enhancement under § 2B1.1(b)(1)(G).”

Of Note: This is a new rule for the Ninth, imported from the Eleventh. Here’s the Grant rule on calculating loss, quoted favorably in Santos:

“[W]e hold when an individual possesses a stolen check, or a photocopy of a stolen check, for the purpose of counterfeiting, the district court does not clearly err when it uses the full face value of that stolen check in making a reasonable calculation of the intended loss. Although a district court cannot equate the full face value of stolen checks with intended loss as a matter of law in every case, it can still find a defendant intended to utilize the full face value of stolen checks. Where the Government presents evidence indicating the defendant intended to utilize the full face value of the checks, and the defendant fails to present countervailing evidence, a district court is especially justified in including the checks’ full face value in its intended loss calculation.”

How to Use: Santos isn’t a blank check on loss calculation (pardon the pun). Judge Reinhardt cautions that a “court may not mechanically assume that the face value of the stolen checks is the intended loss . . . . Rather, it must consider the evidence, if any, presented by the defendant tending to show that he did not intend to produce counterfeit checks up to the full face value of the stolen checks.”

Read footnote seven of Santos carefully – Judge Reinhardt gives us a number of other examples of how a defendant may not have intended to steal through counterfeiting the entire amount of stolen checks.

For Further Reading: Seems like the dust had settled on loss-calculation law, but new fraud schemes drive new rules. The Ninth recently gave us the great loss-calculation decision of United States v. Crandall, 525 F.3d 907(9th Cir. 2008), discussing loss in the real estate context.

For the party line on loss calculations (but useful nonetheless), see the Commission’s training outline here.

Steven Kalar, Senior Litigator, N.D. Cal. FPD. Website at www.ndcalfpd.org

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Wiretap guru Judge Betty Fletcher (left) brings us a disappointing Title III decision this week in United States v. Rivera, __ F.3d __, 2008 WL 2229944 (9th Cir. June 2, 2008), decision available here.

Though we're not big fans of the opinion, we're huge fans of the Judge: here's hoping for a very speedy recovery.

Players: Decision by Judge Betty Fletcher, joined by Judges Kleinfeld and Gould.

Facts: DEA agents in Washington investigated a Washington drug conspiracy for nineteen months, and developed a number of snitches. Id. at *1. The feds got three wiretaps, one of which was challenged in this appeal. The district court rejected Franks, necessity, and minimization challenges; appellants were convicted after plea or trial.

Issue(s): “Defendants argue that the government failed to show necessity for a wiretap on two telephones and failed to properly minimize the various wiretaps it used in its investigation of the conspiracy.” Id. at *1.

Held: 1. Franks: “[W]e conclude that the affidavit supporting the wiretap application contains a ‘full and complete statement’ as required by 18 USC § 2518(1)(c).”

2. Necessity: “While we agree with Defendants that the government could have – and perhaps should have – further utilized traditional investigative techniques before applying for the wiretap, we may not reverse simply because we might have decided not to grant the wiretap. We review the issuing court’s decision to grant the wiretap for an abuse of discretion . . . . and we conclude that the issuing court did not abuse its discretion here.” Id. at *8.

3. Minimization: “[W]e conclude that the DEA’s monitoring procedures and its training of the monitors did not fall sort of the requirements of 18 U.S.C. § 2518(5).” Id. at *11.

Of Note: Rivera offers no new rules or big principles for wiretap litigation. Instead, it is another hash mark in the spectrum of cases that will be used to gauge the legality of wiretaps. While a disappointing outcome, Rivera is an interesting read. The decision surveys the Ninth’s Title III litigation, discussing facts that have supported – or undermined – previous wiretaps.

Rivera’s author, Judge Betty Fletcher, is one of the Ninth’s (and the country’s) experts in the field: she also wrote the important decisions of Ippolito, 774 F.2d 1482 (9th Cir. 1985), and Blackmon, 273 F.3d 1204 (9th Cir. 2001). Notably, Fletcher’s colleagues on Rivera – Judges Kleinfeld and Gould – were also on the panel for the very good wiretap decision in Gonzalez, Inc., 412 F.3d 1102 (9th Cir. 2005) (authored by Judge D.W. Nelson). Interesting that a handful of judges have been so influential in wiretap jurisprudence.

How to Use: For better or worse, Rivera now becomes the first step for wiretap litigation. As noted above, the case analyzes the Ninth’s wiretap precedent (by the Judge who wrote half of the decisions in the field). Rivera is also a fairly exhaustive recap of wiretap challenges: Franks omissions as to the efficacy of traditional investigations, id. at *3-*4; physical surveillance, id. at *5, use of the grand jury, id. at *6, use of agents, trash runs, interviews, pen registers and trap-and-trace devices, id. at *6; GPS, id. at *7; and the scope of the goals central to a necessity challenge, id. at *7-*8.

Unfortunately, the case re-issues that horrible blank check from McGuire: a wiretap is “necessary” even when the main players are known, if the feds seek to learn the conspiracy’s suppliers, distributors, and other known and unknown members. Id. at *8. The only bright spot is the decision’s endorsement of financial investigation as a traditional investigation technique – a mild break from previous authority. Id. at *6.

For Further Reading: At the recent Defender’s conference in New Orleans, and at our upcoming CJA seminar, the brainy folks at the Electronic Frontier Foundation (EFF) are teaching us the terrifying ways that feds are crawling into our private lives through the use of new technologies and new authorizing statutes. See discussion here.

How about some legal ju-jitsu, in the Title III context? Why shouldn’t cell phone location tracking, e-mail subpoenas, net surveillance, triggerfish antennas, pen trap databases, and other new technologies be bundled in the “traditional investigative techniques” that undermine wiretap “necessity?” One gets a whiff of that in the brief GPS discussion in Rivera – this may be the next big step in wiretap litigation.


Image of Judge Betty Fletcher from http://www.acslaw.org/chapters/lawyer/pugetsound

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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Senior Judge Wallace (left) authors a devastating opinion on the Fourth Amendment and computers. United States v. Giberson, __ F.3d __, 2008 WL 2221008 (9th Cir. May 30, 2008), decision available here.

The opinion's casual extension of the "open container" Fourth Amendment exception to computers merits en banc review.

Players: Hard-fought appeal by Nevada AFPD Jason Carr.

Facts: Giberson was suspected of creating fake ID’s. [WL page cites not yet available.] The first search warrant authorized seizure of records and documents; though it didn’t mention computers, the feds seized Giberson’s anyway.

The second warrant authorized a search of the hard drive mirror image for records relating to the fake ID cards; the forensic examiner found child porn.

A third warrant authorized a search for child porn; 700 images were found.

Issue(s): 1. Particularity of Search Warrant: “[W]hether a warrant that describes particular documents authorizes the seizure of a computer where, as here, the searching agents reasonably believed that documents specified in the warrant would be found stored in the computer.”

2. Scope of Forensic Search: “Giberson also argues that the evidence obtained from the search of his computer should have been suppressed because the government did not sufficiently limit its search to relevant documents.”

Held: 1. Particularity: “Here, numerous documents relating to the production of fake I.D.’s were found in and around Giberson’s computer and were arguably created on and printed from it. It was therefore reasonable for officers to believe that the items they were authorized to seized would be found in the computer, and they acted within the scope of the warrant when they seized the computer.”

2. Scope of Forensic Search: “[I]n this case, based on the technology available to him for search Giberson’s computer, [the forensic analyst’s] search was reasonable; the pornographic material he inadvertently discovered while search for the documents enumerated in the warrant was properly used as a basis for the third warrant authorizing the search for child pornography.”

Of Note: In a cursory analysis Giberson appears to extend the profoundly disturbing Fourth Amendment “container” theory to computers:
Computers, like briefcases and cassette tapes, can be repositories for documents and records. We have not yet had occasion to determine, in an opinion, whether computers are an exception to the general principle that a warrant authorizing the seizure of particular documents also authorizes the search of a container likely to contain those documents. We hold that, in this case, where there was ample evidence that the documents authorized in the warrant could be found on Giberson’s computer, the officers did not exceed the scope of the warrant when they seized the computer.
For that paragraph alone, this case cries out for en banc review.

How to Use: In Giberson the agents seized the computer, then obtained a second warrant to search the mirrored hard drive. As the Court explains, “[The agents’] actions were particularly appropriate because the agents merely secured the computer while they waited to get a second warrant that would specifically authorize searching the computer’s files.” The decision (arguably) does not stand for the proposition that a validly-seized computer can be searched without a warrant, and without goal-driven analysis, for any data the agents happens to think is of interest.

For Further Reading: Giberson is an important (and bad) decision that (again) ignores the realities of technology by applying hoary old Fourth Amendment analogies (a computer is akin to a briefcase?) Only Judge Schroeder on the Giberson panel was an active Circuit judge (she sat with Senior Judge Wallace, and District Judge Benitez).

Giberson is reminiscent of the lousy Kelley decision, with a visiting Justice; or the lousy Barken decision, with a visiting senior circuit judge; or the lousy Hosvaldo Lopez case, authored by a visiting district judge; or the lousy Crews case, authored by a visiting senior, district judge.

See a trend?

Here’s hoping for a slew of new ‘09 appointments, to stave off these strangers to the Ninth. For an interesting discussion of the curious impact of visiting judges, see Sara C. Benesh, The Contribution of “Extra” Judges, 48 AZLR 301 (2006).


Steven Kalar, Senior Litigator N.D. Cal. Website at www.ndcalfpd.org

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The Ninth zinged us. In a rare show of efficiency, we had the following Santana memo finished last Thursday. The Court, of course, then issued the important Giberson decision on Friday (blogged above). It pays to procrastinate.

Here is the bonus Case o' The Week memo on Santana and a prisoner's long wait (left) to be picked up for a supervised release violation. United States v. Santana, __ F.3d __, 2008 WL 2178132 (9th Cir. May 27, 2008), decision available here.

Players: Hard-fought case by San Diego AFPD Zandra L. Lopez.

Facts: While on supervised release, Santana picked up a state case for which he got three days jail time. It was 121 days between his last day of state custody, and when the feds finally got around to getting him to his initial appearance. (Time spent in custody on the federal warrant, of course.). Santana moved for dismissal based on this delay: the district court denied the motion.

Issue(s): “Santana argues that his right to prompt disposition of the government’s petition to revoke his supervised release was violated by the government’s unjustified delays in executing the warrant for his arrest and in bringing him before a judge for his initial appearance.”

Held: “[Given the “short” length of delay,] the Court holds that the very recent Mendoza presumed prejudice rule is not appropriate.” “The Mendoza analysis being inappropriate, we apply our ordinary test in supervised release revocation cases and search for actual prejudice. . . . At oral argument, Santana’s counsel admitted that he received full credit against his sentence for the time he spent in pre-revocation incarceration. Santana has not identified any other prejudice, aside from the anxiety of awaiting his revocation proceedings. In this case, even though the delay appears attributable to the government’s neglect, in light of the lack of actual prejudice, we conclude that the four-month delay did not violate Santana’s due process rights or his rights under Rule 32.1.”

Of Note: The Court in Santana recaps the Speedy Trial Clause analysis, but cautions about how far that analogy goes in the Due Process analysis for supervised release proceedings:
Barker v. Wingo, 407 U.S. 514, 530 (1972), held that analysis under the Speedy Trial clause requires balancing the factors of length of delay, reason for the delay, the defendant’s timely protest of delay, and prejudice to the defendant. . . . Barker identified three types of actual prejudice: oppressive pre-trial incarceration, unnecessary anxiety of the accused, and impairment of the accused’s ability to mount a defense. 407 U.S. at 532. The longer the delay, the less the showing of prejudice required, until an extremely lengthy delay attributable to government negligence creates a ‘strong presumption that [the defendant] suffered prejudice,’ which the government has the burden to rebut. Mendoza, 2008 WL 1970339, at *5. We hasten to say that a reasonable time for proceeding to a full-scale criminal trial is not the same as a reasonable time for revocation proceedings, and therefore Speedy Trial Clause authority should not be applied in revocation proceedings as if it were directly controlling.
How to Use: Probation and AUSAs have been known to deliberately stall getting supervised release defendants back before the district court, as a way to guarantee custodial time regardless of the outcome of the Form 12 sentencing hearing. (What judge would ever undercut a custodial sentence that has already been served in transit?) Santana encourages this shoddy practice.

We should start building a prejudice record with Apprendi “sentencing memos” explaining the need for a below-guideline sentence while the client is waiting to be transported. Maybe this could be styled as a “Due Process Demand for Speedy Prosecution?” Maybe served on the U.S. Marshal as well? These motions would put everyone on notice, converting the feds’ “negligent” delay to “deliberate” delay. (Remember Barker’s “reason for delay” factor above . . . .)

For Further Reading: The best defense analysis of supervised release is a pair of very thoughtful articles written by AFPD Douglas Morris in The Champion, available here.



Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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Finding something positive in the Medellin decision is a challenge: the Supreme Court rejected a state death row prisoner’s claim under the Vienna Convention because the consulate-notification treaty provisions are non-self-executing, so state procedural default rules governed, despite the judgment of the International Court of Justice that the case should have been reviewed to determine whether the violation was prejudicial regardless of procedural default. But part III of the opinion includes some strong language rejecting Executive Branch law-making that seems to run counter to expansion of Executive power through administrative rule-making and presidential signing statements.

In 2004, the International Court of Justice in the Hague found in the Avena case that 51 aliens on American death rows had not been advised of their rights to contact their consulates after arrest, as required by the Vienna Convention. In Sanchez-Llamas, a case brought by a non-Avena prisoner, the Supreme Court held that normal state default rules applied to a Vienna Convention claim by an Oregon prisoner regardless of Avena. Then the President, in a somewhat unenthusiastic effort to comply with international obligations, issued a Memorandum to the Attorney General stating that the United States would comply with the International Court of Justice’s Avena decision “by having State courts give effect to its decision in accordance with the general principles of comity.”

With the Presidential Memorandum in hand, Mr. Medellin, a named prisoner in Avena, went back to the Texas post-conviction court, asserting that the use of his post-arrest statements violated the Vienna Convention. The Texas court said the claim was defaulted in his successive petition because neither the Presidential Memorandum nor the Avena decision displaced state law on procedural defaults. This put the federal government in a tight spot: the States are trying to kill the Avena prisoners; the prisoners are trying to avoid being killed by invoking federal treaties; and the federal government wants the States to kill the prisoners but does not want to look like it is ignoring the treaty approved by Congress and signed by the President.

The Solicitor General’s amicus brief presented the federal argument in two parts. First, he argued that the Court should defer to the Executive Branch’s evaluation that the Vienna Convention was not self-executing (the treaty needed further legislative action to allow an individual to enforce its provisions). Second, the Solicitor General argued that the Presidential Memorandum had the force of law, requiring the States to reevaluate the prisoners’ Vienna Convention claims on the merits.

The first part of Chief Justice Roberts’ opinion is predictable: after a quasi-fascinating exploration of when treaty obligations are “self-executing” (the treaty has automatic domestic effect as federal law upon ratification) or “non-self-executing” (domestic effect of the international obligation depends upon further implementing congressional action), the Court determined that the State’s default rules govern. In doing so, the majority applied the rules of statutory construction, looking to the natural meaning of the words and the treaty’s context. The Solicitor General’s position was noted in passing, acknowledging the "great weight" given to the Executive Branch’s determination that the treaty is non-self-executing. Justice Breyer, joined by Justices Ginsburg and Souter, construed the Vienna Convention to be self-executing based on factors gleaned from precedent in construing treaties. Justice Stevens concurred with the suggestion – foreshadowing his Baze repudiation of the death penalty – that the State commute the sentence to ameliorate the international awkwardness of the ruling.

Finally we get to the potentially useful part. In the part III of Chief Justice Roberts’ opinion, the Court firmly and decisively rejected the Solicitor General’s argument regarding the Presidential Memorandum. In deferring to the State’s default rules and the earlier Sanchez-Llamas opinion, the Court used some pretty strong language on the limitations of Executive power.
• The Court cited to the Hamdan case on Guantánamo prisoners for the “fundamental constitutional principal” that Congress makes laws and the President executes them;
• The Court found that the characteristic of self-executing or non-self-executing exists at the time of ratification and cannot be changed by subsequent Presidential action;
• The Court cited James Madison for the proposition that, under the system of checks and balances, “[t]he magistrate in whom the whole executive power resides cannot of himself make a law.”
The Court then found that, under the Youngstown Steel analysis for authorized Executive action, there was neither an invitation in congressional silence for the Executive to fill a gap nor authority in the President’s separate foreign affairs authority to federally trump the State’s default rule.

Part III of the opinion, while protective of the States, is also a distinct limitation on the Executive power asserted by the Solicitor General. The Presidential Memorandum seems to provide a direct analog to presidential signing statements as well as some instances of Executive construction of penal statutes under administrative law. For example, the Bureau of Prisons’ belated construction of the federal good time credit statute (12.8% of sentence imposed) could not survive an analysis that required the penal statute to mean what it said upon enactment or, at the latest, once construed by the Sentencing Commission (15% of sentence imposed)(as blogged here). Medellin’s utility in addressing presidential signing statements is ironic because Justice Alito, a member of the majority, was an early architect of the device to expand Executive power (as discussed here).

The respect for the text as written by Congress and the clear statement regarding the absence of Executive law-making authority may be useful in litigation where the Executive Branch attempts to expand the meaning of statutes beyond their plain meaning. We may be able to use Medellin in conjunction with the approach to the rules of statutory construction discussed here after the Watson case. As is so often the case, Federal Defenders must look for the gems among the dross.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon

Finding something positive in the Medellin decision is a challenge: the Supreme Court rejected a state death row prisoner’s claim under the Vienna Convention because the consulate-notification treaty provisions are non-self-executing, so state procedural default rules governed, despite the judgment of the International Court of Justice that the case should have been reviewed to determine whether the violation was prejudicial regardless of procedural default. But part III of the opinion includes some strong language rejecting Executive Branch law-making that seems to run counter to expansion of Executive power through administrative rule-making and presidential signing statements.

In 2004, the International Court of Justice in the Hague found in the Avena case that 51 aliens on American death rows had not been advised of their rights to contact their consulates after arrest, as required by the Vienna Convention. In Sanchez-Llamas, a case brought by a non-Avena prisoner, the Supreme Court held that normal state default rules applied to a Vienna Convention claim by an Oregon prisoner regardless of Avena. Then the President, in a somewhat unenthusiastic effort to comply with international obligations, issued a Memorandum to the Attorney General stating that the United States would comply with the International Court of Justice’s Avena decision “by having State courts give effect to its decisionin accordance with the general principles of comity.”

With the Presidential Memorandum in hand, Mr. Medellin, a named prisoner in Avena, went back to the Texas post-conviction court, asserting that the use of his post-arrest statements violated the Vienna Convention. The Texas court said the claim was defaulted in his successive petition because neither the Presidential Memorandum nor the Avena decision displaced state law on procedural defaults. This put the federal government in a tight spot: the States are trying to kill the Avena prisoners; the prisoners are trying to avoid being killed by invoking federal treaties; and the federal government wants the States to kill the prisoners but does not want to look like it is ignoring the treaty approved by Congress and signed by the President.

The Solicitor General’s amicus brief presented the federal argument in two parts. First, he argued that the Court should defer to the Executive Branch’s evaluation that the Vienna Convention was not self-executing (the treaty needed further legislative action to allow an individual to enforce its provisions). Second, the Solicitor General argued that the Presidential Memorandum had the force of law, requiring the States to reevaluate the prisoners’ Vienna Convention claims on the merits.

The first part of Chief Justice Roberts’ opinion is predictable: after a quasi-fascinating exploration of when treaty obligations are “self-executing” (the treaty has automatic domestic effect as federal law upon ratification) or “non-self-executing” (domestic effect of the international obligation depends upon further implementing congressional action), the Court determined that the State’s default rules govern. In doing so, the majority applied the rules of statutory construction, looking to the natural meaning of the words and the treaty’s context. The Solicitor General’s position was noted in passing, acknowledging the "great weight" given to the Executive Branch’s determination that the treaty is non-self-executing. Justice Breyer, joined by Justices Ginsburg and Souter, construed the Vienna Convention to be self-executing based on factors gleaned from precedent in construing treaties. Justice Stevens concurred with the suggestion – foreshadowing his Baze repudiation of the death penalty – that the State commute the sentence to ameliorate the international awkwardness of the ruling.

Finally we get to the potentially useful part. In the part III of Chief Justice Roberts’ opinion, the Court firmly and decisively rejected the Solicitor General’s argument regarding the Presidential Memorandum. In deferring to the State’s default rules and the earlier Sanchez-Llamas opinion, the Court used some pretty strong language on the limitations of Executive power.
• The Court cited to the Hamdan case on Guantánamo prisoners for the “fundamental constitutional principal” that Congress makes laws and the President executes them;
• The Court found that the characteristic of self-executing or non-self-executing exists at the time of ratification and cannot be changed by subsequent Presidential action;
• The Court cited James Madison for the proposition that, under the system of checks and balances, “[t]he magistrate in whom the whole executive power resides cannot of himself make a law.”
The Court then found that, under the Youngstown Steel analysis for authorized Executive action, there was neither an invitation in congressional silence for the Executive to fill a gap nor authority in the President’s separate foreign affairs authority to federally trump the State’s default rule.

Part III of the opinion, while protective of the States, is also a distinct limitation on Executive power asserted by the Solicitor General. The Presidential Memorandum seems to provide a direct analog to presidential signing statements as well as some instances of Executive construction of penal statutes under administrative law. For example, the Bureau of Prisons’ belated construction of the federal good time credit statute (12.8% of sentence imposed) could not survive an analysis that required the penal statute to mean what it said upon enactment or, at the latest, once construed by the Sentencing Commission (15% of sentence imposed)(as blogged here). Medellin’s utility in addressing presidential signing statements is ironic because Justice Alito, a member of the majority, was an early architect of the device to expand Executive power (as discussed here).

The respect for the text as written by Congress and the clear statement regarding the absence of Executive law-making authority may be useful in litigation where the Executive Branch attempts to expand the meaning of statutes beyond their plain meaning. We may be able to use Medellin in conjunction with the approach to the rules of statutory construction discussed here after the Watson case. As is so often the case, Federal Defenders must look for the gems among the dross.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon

We cheat this week and reach back a bit to discuss the very interesting decision in United States v. Crandall, __ F.3d. __ , 2008 WL 2025071 (9th Cir. May 13, 2008), decision available here. While Crandall is a "condo conversion" case, it is destined to become one of the Ninth's leading cases for the tsunami of federal mortgage fraud prosecutions on the horizon.

Players: Decision by visiting Alaska District Judge Holland.

Facts: Crandall and cohorts conspired in condo conversions. Id. at *1. The scheme was to concoct fraudulent “stock cooperatives” to hold apartments, exploit a regulatory loophole, and avoid lengthy condo conversion requirements. Id. The feds charged mail, wire, and “honest services” fraud. Id. At trial, the defense unsuccessfully sought a mens rea instruction that required “knowing and conscious” engagement in “criminal wrongdoing.” Id. at *3. The defendants were convicted.

They were sentenced using loss amounts based on USSG § 2B1.1, comment. n. 2(F)(v)(III) – a rule for “regulatory scheme” frauds that permits no offset for “the value of those items or services.”

Issue(s): 1. Mens Rea: “Defendants argue that their convictions must be reversed because the district court erred in declining to give their proposed ‘intent to defraud’ instructions.” Id. at *3.

2. Sentencing Loss Amounts: “Defendants argue that their sentences must be vacated because the district court erred in relying on . . . 2(F)(v)(III) to calculate the loss caused by the fraud.” Id.

Held: 1. Mens Rea: “Defendants’ proposed ‘intent to defraud’ jury instruction was not supported by law. Arthur Anderson [an obstruction case upon which the defense had relied] did not involve either the mail or wire fraud statute and there is no indication that the Court intended its holding as to the mens rea requirement for obstruction of justice to extend to other federal statutes.” Id. at *3.

2. Sentencing Loss Amounts: “The district court erred in relying on Application Note 2(F)(v)(III) to calculate loss.” Id. at *4. “[T]he use of [this rule] was not a realistic, economic approach to calculating the loss caused by the fraud.” Id. (emphasis added).

Of Note: Crandall will be a key case in the wave of impending mortgage fraud prosecutions. Its mens rea holding, unfortunately, isn’t great. The Court emphasizes that “‘[T]he ‘intent to defraud’ instruction that was given adequately covered the defense theory of lack of intent.” Id. at *3 & n.4. That model instruction states, “An intent to defraud is an intent to deceive or cheat.” Id. The difference between the Ninth’s model instruction, and the proposed defense instruction, was the (rejected) requirement that the defendant “knowingly and consciously engaged in criminal wrongdoing.” This mens rea holding will haunt future mortgage fraud prosecutions.

Crandall also bears out our cynical ‘06 prediction that the feds would abuse the “honest services” fraud statute by broadly charging non-government employees with that offense. See COTW blog here, discussing United States v. Williams, 441 F.3d 716 (9th Cir. 2006).

How to Use: Crandall redeems its mens rea misstep with a valuable discussion of loss amount calculations for sentencing. First, the decision rejects the district court’s refusal to off-set the value of the condos: a critical holding where, for example, foreclosure sales can recoup much of the fraud “loss.”

Second, the decision correctly emphasizes a “realistic, economic approach” to loss calculations: again, critical to shaving offense levels off of economic fraud cases. Finally, the case suggests several good theories for calculating loss amounts in real estate fraud cases:

i) a “fair market appraisal” to determine “actual loss” to the victim;

ii) a “cost of repair” theory, using the price needed to get the apartments converted to condos, and;

iii) a “gain” theory – what the defendants gained by the sale of the condos, less what they paid for the apartments. Id. at *6.

Worry, though, about footnote 8: it appears to limit loss evaluation to the time of the fraud, instead of permitting the offset of subsequent gains (like a rising real estate market). Id. at *6.

For Further Reading: “Mortgage fraud” is the prosecution du jour in the ND Cal – and many other federal districts as well. Here’s a good website that collects cases and sentences on these prosecutions.

For the FBI’s spin on these cases (and a very useful overview) visit the Bureau's webpage here.


Map above from http://www.fbi.gov/publications/fraud/mortgage_fraud06.htm.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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The Ninth's en banc decision in W.R. Grace is the most important criminal decision to be issued in -- a week. See United States v. W.R. Grace, __ F.3d __, 2008 WL 2052204 (9th Cir. May 15, 2008) (en banc), decision available here. Coming hard on the heels of the equally excellent Chapman decision, W.R. Grace overrules the Ninth Circuit's old Hicks opinion and affirms a district court's broad discretion to create -- and to enforce -- case management and discovery orders.

Players: Decision by Judge Fisher; zinger of a concurrence by Judge Hawkins.

Facts: Mining company W.R. Grace and its officers were charged criminally for illegally disposing asbestos in Montana. Id. at *1. To handle the huge numbers of witnesses, after a case management conference the district court entered an order with discovery deadlines. The government blew the deadlines – natch. Id. at *2. The court then limited the government’s witness list for trial to what had been disclosed to date. Id. at *2. The government took an interlocutory appeal. A three-judge panel reversed the limitation order under Hicks, and the case went en banc. Id. at *3.

Issue(s): “[D]id the district court in this case have the authority to order pretrial disclosure by the government of its final list of witnesses and evidentiary documents and to exclude witnesses and evidence not timely disclosed in compliance with such orders?” Id. at *1.

Held: “[W] hold that the district court did have the authority to issue and enforce its pretrial orders compelling the government to disclose its witness list and did not abuse its discretion in doing so. We therefore also overrule ... Hicks, ... to the extent that it purported to deny the district court such authority.” Id.

Of Note: For most practitioners, the new discovery rule of W.R. Grace will have the greatest impact. Another important issue in the case, however, is procedure necessary for the government to seek a § 3731 interlocutory appeal.

Traditionally, the Ninth has required the government to elaborate on its assertion that an interlocutory appeal relates to evidence that is substantial proof of material issues, and that the appeal isn’t pursued for to delay. See, e.g., United States v. Loud Hawk, 628 F.3d 1139 (9th Cir. 1979) (en banc). In W.R. Grace, the Ninth abandoned the Loud Hawk rule and will find jurisdiction to consider the government’s interlocutory appeal on a perfunctory “certification” from the U.S. Attorney. Id. at *4.

This new rule is troubling, particularly given the slow pace of the Ninth’s decisions and the fact that our clients often remain in custody while the government takes an interlocutory appeal and seeks en banc review. Judges Hawkins, Pregerson and Wardlaw get this, and dissent from the § 3731 holding in a particularly forceful, persuasive and lengthy analysis. (Check-out id. at *21 n. 9, citing John McKay, Train Wreck at the Justice Department: An Eyewitness Account, 31 Seattle U.L. Rev. 265 (2008)) .

How to Use: Chapman (blog here) and W.R. Grace – decided a week apart – have done more for the effective defense of complex criminal cases than any other Ninth decision in the last several years.

Recall that Chapman upheld the sanction of dismissal of an indictment with prejudice, for the AUSA’s “reckless disregard” of his constitutional discovery obligations. 2008 WL 1946744 (9th Cir. May 6, 2008). In W.R. Grace, the Ninth finally restores power to the district courts to manage their own docket and avoid being gamed by the government.

Marvel at the remarkable case management order that was upheld in W.R. Grace: a finalized government witness list due a year before trial! Granted, the government in this order retained the right to amend its list for rebuttal witnesses, but nonetheless, W.R. Grace represents a sea change in the district court’s ability to force the government to not hide the evidentiary ball.

In any case destined for trial, a very early discovery motion using Chapman and W.R. Grace is in order – along with a request for an early case management conference and (now enforceable) discovery order.

[An important aside: the Ninth expressly doesn’t reach the issue of whether defense witnesses are subject to the same rules. See id. at *7 n. 7.]

For Further Reading: Remember the Ninth's horrible Fort decision, where a bizarre reading of Rule 16 limited disclosure of state police reports in a federal gang case? See 478 F.3d 1099 (Mar. 8, 2007) (blog available here). In Fort, District Judge Alsup (right) had made a number of highly critical findings about the discovery conduct of the AUSAs. See id. at 1108 & n.10.

What Fort denied, Grace now returns – Judge Alsup and his district court colleagues suddenly find themselves armed with extraordinarily powerful tools to respond to the government’s attempts to keep the defense “in the dark.” To quote Martha Stewart, “it’s a good thing.”


Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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Can an AUSA's reckless disregard for his or her constitutional discovery obligations serve as a basis for a dismissal of an indictment -- with prejudice? Yep, after a great discovery decision last week by Judge Kim Wardlaw (left). United States v. Chapman __ F.3d __, 2008 WL 1946744 (9th Cir. May 6, 2008), decision available here.

Players: Decision by Judge Kim Wardlaw; joined by Judges Hawkins and O’Scannlain.

Facts: Chapman was prosecuted for running a “box job;” a stock-fraud scheme involving shell corporations and dummy directors. Id. at *1. Although in ‘04 the government promised to disclose Brady, Giglio, and Jencks information prior to trial, in ‘06 – the day before trial – it suddenly revealed for the first time it would call its case agent for whom no discovery had been disclosed. Id. As the trial progressed, priors of two prosecution witnesses were disclosed for the first time on direct. Id. When this happened a third time during trial, the government disclosed (for the first time) over 650 pages of rap sheets, plea agreements, and cooperation agreements. Id. at *3. A frustrated district judge declared a mistrial, and after briefing on the discovery violations dismissed the indictment. Id.

Issue(s): “The district court dismissed an indictment . . . after the prosecution admitted that it failed to meet its obligations to disclose over 650 pages of documents to the defense. We must decide whether the government’s appeal of the dismissal is precluded by the Double Jeopardy Clause . . . [and] whether the dismissal was proper.” Id. at *1.

Held: 1. Double Jeopardy: “[W]e hold that the ‘manifest necessity’ exception [to the Double Jeopardy Clause] applies to this case . . . .” Id. at *5.“We conclude that the Double Jeopardy Clause does not bar the government’s appeal under the circumstances presented here . . . .” Id. at *1.

2. Discovery Sanction: “[W]e affirm as to . . . the dismissal of the indictment . . . .” Id. at *1.

Of Note: Chapman stands out for the Ninth’s endorsement of a severe discovery sanction, but the case is also of interest for its discussion of the “manifest necessity” concept for mistrials and Double Jeopardy. In essence, if there is a mistrial after the jury is empaneled but before a verdict, a defendant can be tried again for the same crime if 1) “he consents to the dismissal,” or 2) “if the district court determines that the dismissal was required by ‘manifest necessity.’” Id. at *5. The classic example of “manifest necessity” is a deadlocked jury – but as shown here, the doctrine can defeat a Double Jeopardy claim when there is a mistrial because of government misconduct. Id. at *6. It is a complicated concept: for example, evidence that the government sought a mistrial to gain tactical advantage earns the “strictest scrutiny” on appeal, instead of a review for “abuse of discretion.” Id. Chapman is worth a spot in a trial binder to remind of Double Jeopardy ramifications of a mistrial, and how to make the appellate record when a mistrial arises.

How to Use: The Very Important Rule of Chapman is this:

A district court can exercise its supervisory powers and dismiss an indictment with prejudice even when the AUSA has committed no intentional discovery violation, if there is “reckless disregard for the prosecution’s constitutional obligations.” Id. at *9.

This is heady stuff – particularly because one of the AUSA’s major sins here was his failure to keep a discovery log. It is rare to catch a prosecutor in a deliberate discovery violation, but sloppy, “inadvertent” failures to disclose are as commonplace as government discovery logs are rare. Particularly in complex, large-discovery cases – like wiretaps, big fraud conspiracies, and SEC-related prosecutions – Chapman finally puts some teeth in criminal discovery rules. In these big cases, the Chapman opinion should figure prominently in initial discovery letters and defense discovery motions.

For Further Reading: The federal bench has been buzzing about the recent Qualcomm civil discovery sanctions: over $9 million in fines and a half-dozen attorneys referred to the California State Bar for disciplinary action. See Qualcomm v. Broadcom, 05 CV 1958-RMB (BLM), Ord. (S.D. Ca. Jan. 7. 2008), see blog discussing Qualcomm discovery sanctions here.

By contrast, what happened to the AUSA(s) after their "flagrant" discovery violations in Chapman? Actually, who were the AUSAs in Chapman? A liberal latté on me, for anyone who finds their names in the opinion. (Wasn’t it just a week ago that the Ninth lectured us on the “public’s right to know” the names of wrong-doers in published opinions? See United States v. Stoterau, 2008 WL 1868997 (9th Cir. Apr. 29, 2008)).


Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org


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In a very disappointing decision, Judge Ikuta upholds a laundry-list of supervised release conditions for child porn cases; and, specifically, polygraphs and Abel screening. See United States v. Stoterau, __ F.3d __, 2008 WL 1868997 (9th Cir. Apr. 29, 2008), decision available here. This is a particularly troubling tolerance of the Abel hocus-pocus, which one court has described as having factors that could have been cooked up at Hogwarts.

Players: Hard-fought appeal by CD Cal AFPDs Jonathan Libby and Kathryn Young.

Facts: 26-year-old Stoterau convinced 14-year old John Doe into posing for sexually-explicit pictures, which were then uploaded to a web-site. Id. at *1. Customers visiting this site would contact Stoterau, and Stoterau would drive the boy to their locations. Id. Doe would have sex with the customers for money, and Stoterau would get a cut. Id.

Stoterau was charged with and pleaded guilty to transporting child porn. Id. He raised many challenges to both his sentence and conditions of supervised release.

Issue(s): (Among many other issues): “Condition 12 [of supervised release] . . . specifies that Stoterau must submit to polygraph and Abel testing.” Id. at *8. (“Abel testing is a diagnostic exam for sex offenders that studies ‘visual reaction time.’”) Id. at *9.

Held: 1. Regarding polygraphs: “[T]he polygraph prong of Condition 12 does not infringe on Stoterau’s Fifth Amendment rights because Stoterau will retain these rights during his polygraph exams . . . if Stoterau receives a question during his polygraph exam which calls for him to provide an answer that would incriminate him in a future criminal proceeding, Stoterau retains the right to invoke the Fifth Amendment privilege and remain silent.” Id. at *8. “Stoterau is not entitled to receive Miranda warnings before undergoing polygraph examination pursuant to Condition 12 of his supervised release.” Id. at *9.

2. Regarding Abel Screening: “[W]e conclude that Abel testing does not implicate a particularly significant liberty interest, and thus does not require the district court to make the heightened findings required by Williams and Weber [the “antipsychotic drugs” and “penile plethysmograph” decisions.] Id. at *10.

Of Note: Judge Ikuta’s Stoterau decision (joined by Judges Wallace and Gould) is so disappointing on so many fronts it is hard to know where to start. The decision interprets relevant conduct broadly, id. at *3, tolerates a perfunctory recital of the Section 3553 analysis by the sentencing court, id. at *4-*5, gives de facto “reasonableness” deference to an in-guideline sentence, id. at *6-*7, does not fairly grapple with the junk science known as “Abel testing,” id. at *11, allows broad distribution of the PSR despite the shrink-patient privilege, id. at *15, and refuses to use a pseudonym in the opinion to protect the defendant while he is in custody, id. at *18. The opinion is grim – but important – reading for a child-porn client weighing his options and evaluating the value of a (c)(1)(C) deal.

How to Use: Abel screening has all the scientific rigor of phrenology. The Abel test is based on a trick: the person tested thinks they’re evaluating the attractiveness of projected images. “The subject is supposed to think that the paper-and-pencil test is the actual test, but the critical portion of the test calculates how long the subject gazes at the slide. It is this measure of [visual reaction time] that is used to determine the subject’s sexual interest in the various categories of adults and children shown in the slides.” Id. at *9.

If the subject knows the trick, though, the test doesn’t work – as recently conceded by Sharper Future in a case here in the Northern District of California. Thus, make sure every child porn client carefully reads page *9 of Stoterau, and thoroughly explain Abel screening in detail before supervision – well-informed clients cannot be effectively Abel-tested. In a sweet irony, a decision that touts “the public’s common law right of access to judicial proceedings,” id. at *17, can be used to nullify the very testing method that it tolerates on supervised release.

For Further Reading: Dr. Gene Abel has a full-service shop: for the low-low price of $250 you can get “certified” and pick from a laundry lists of handy official-sounding “clinical certifications.” See price list here. The good doc is teaching at a one-day training on May 17th in San Francisco. See plug here. Let’s go! A real scientist shouldn't mind a few members of the defense bar taking notes, right?

Here’s a great article to discuss at the San Francisco training, reporting one court’s description of the Abel test’s proprietary formulas: “For all we know, they and their components could be mathematically based, founded upon indisputable empirical research, or simply the magic of young Harry Potter's mixing potions at the Hogwarts School of Witchcraft and Wizardry.” Article available here.



Steven Kalar, Senior Litigator at N.D. Cal. FPD. Website at www.ndcalfpd.org

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