Sunday, August 13, 2017

Case o' the Week: A Remarkable Feet (Ninth Rejects Podiatrist Qui Tam) - Van Dyck / Smith, Qui Tam, and Criminal Forfeiture

 No foot in the door for Relators.
United States v. Van Dyck, Nancy Smith, Intervenor 2017 WL 3428096 (9th Cir. Aug. 10, 2017), decision available here.

Players: Decision by Ninth Circuit Chief Judge Sidney Thomas, joined by Judge Murguia and D.J. McCalla.  

Facts: Van Dyck, a podiatriast, was convicted of health care fraud. Id. at *2. The district court entered a $1.23 forfeiture judgement against him: the estimated amount of fraudulent claims paid by the victim insurers. Id.
  “Relator Nancy Smith” was a medical assistant in Van Dyck’s office who (she claimed) helped investigators before the prosecution began. Id. at *1.
  During the investigation, Relators filed a qui tam action under the False Claims Act. Id. at *3. When the qui tam action was (partially) unsealed, the government declined to intervene. Id. at *3.
  The Relators then moved to intervene in the government’s criminal forfeiture action: the district court declined the request. Id.

Issue(s): “[W]e consider whether a criminal forfeiture action constitutes an ‘alternate remedy’ to a civil qui tam action under the False Claims Act, entitling a relator to intervene in the criminal action and recover a share of the proceeds . . . .” Id. at *1.
  “[I]t is an open question as to whether a criminal proceeding constitutes an ‘alternate remedy,’ and that [the Relators] are therefore entitled to protect their interests in the proceeds.” Id. at *4.

Held: We hold that it does not, and we affirm the district court’s order denying intervention.” Id. at *1.
  “The district court was entirely correct. Intervention would have violated the general rule against non-parties intervening in criminal proceedings; intervention was not permitted under the governing statute; and Realtors did not establish a sufficient interest in the forfeited funds. Relators lack standing to intervene.” Id. at *4.
  “The ‘alternate remedy’ provisions of the False Claims Act do not permit a relator to intervene in a criminal action for the purpose of asserting a right to the proceeds of that action.” Id. at *4. “[W]e need not reach the question in this case as to whether a criminal case constitutes an ‘alternate remedy,’ because the sole issue before us is whether Relators are entitled to intervene in the criminal proceeding. There is nothing in the False Claims Act that affords Relators the right to intervene in a criminal prosecution. The sole remedy afforded relators under the False Claims Act is to commence a ‘civil action.’” Id. at *4.

Of Note: These Relators are (technically) not out of the fight. The Chief explains, “Just because the criminal forfeiture action is over doesn’t mean that the Relators can’t go forward on their qui tam action.” Id. at *5.
  Of course (as Relators here complained), their late-to-the game qui tam action will be against a defendant who is effectively judgement proof: assets stripped to the bone by the voracious maw of criminal forfeiture.
  “Meh,” shrugs the Ninth: “That may well be a practical concern, but it does not provide Relators with the right to intervene in a criminal action.” Id. at *5.

How to Use: Qui tam seems an exotic civil beast irrelevant to our indigent clients. Van Dyck will hopefully keep it that way. The defense here were fighting a three-front battle: a criminal prosecution, criminal forfeiture proceedings, and a third-party qui tam action also hunting dough. A three-ring circus makes for complicated settlement discussions (note that ultimately the AUSA and the defense in Van Dyck shrugged and kicked the Relators out of negotiations. Id. at *3).
  Van Dyck radically undermines the financial incentive for qui tam actions against our clients. Qui tam actions makes the defense and government strange bedfellows: give Van Dyck to your AUSA, and collaborate to keep Relators from mucking-up already-complicated fraud cases.
For Further Reading: On the subject of strange bedfellows . . . law enforcement’s and prosecutors’ ravenous forfeiture appetite disrespects fundamental property rights. So says the ACLU – and the Koch Brothers. See article here
  Time for the defense bar to question whether aggressive local forfeiture initiatives are consistent with President Trump’s and Attorney General Sessions' national prosecution priorities.

Steven Kalar, Federal Public Defender N.D. Cal. Website at


Labels: , ,

Friday, August 11, 2017

US v. Smith, No. 16-10160 (8-10-17)(Thomas w/Murguia & McCalla).  The 9th affirms the district court's order denying intervention by private parties seeking recovery of fraudulent proceeds.  Specifically, the 9th holds that a criminal forfeiture action does not constitute an "alternate remedy" to a civil qui tam (bringing an action on the government's behalf) by a private party (termed a relator) under the False Claims Act, entitling a relator to intervene in the criminal action and recover a share of the proceeds under 31 U.S.C. §3730(c)(5).

The decision is here:

Tuesday, August 08, 2017

Greenway v. Ryan, No. 14-15309 (8-8-17)(Per Curiam w/ Schroeder, Rawlinson, Bea)(Note: This is an Az FPD case).  The 9th declined to find that the Az Supreme Court or the trial court had used an erroneous legal standard and affirmed the denial of the petitioner's challenge to his capital convictions.  The 9th, in McKinney v. Ryan, 813 F.3d 708 (9th Cir. 2015)(en banc), had concluded that the state courts had "consistently" used the wrong legal standard in requiring a casual nexus between mitigation and the offense.  This was contrary to Lockett. This panel had asked for supplemental briefing in this case in light of McKinney.  The panel holds that in this case, neither the trial court nor the state supreme court required a nexus.  McKinney had said the courts had "consistently" applied the wrong standard; that did not mean they always did.  Here, the state courts had considered mitigation without applying a casual nexus test.

The decision is here:

Sunday, August 06, 2017

Case o' The Week: Blunt Words on Jury Nullification - Kleinman and Nullification Instructions

  Mary Jane + Rider Refrain = Jury Constrained. 

United States v. Kleinman, 895 F.3d 825 (9th Cir. 2017), decision available here.

Players: Decision by Judge Milan Smith, joined by Judge N.R. Smith and visiting Tenth Circuit Judge Ebel.

Facts: Kleiman ran California medical marijuana collectives. Id. at 830. The government alleged that a majority of the sales were done outside of the storefronts, unlawfully, using techniques found in “normal” illegal drug distribution conspiracies. Id.
  The case was dismissed stateside after Kleinman asserted the protections of California medical marijuana laws -- the feds then picked it up. Id.
  The district court emphasized during jury selection that the jury could not question any purported conflict between federal and state law on medical marijuana, and should consider the case under federal law only. Id. at 831. Kleinman was convicted after trial, and sentenced to 211 months. Id.
  After the conviction and sentence, Congress enacted an appropriations rider that prohibits DOJ from expending funds to prevent states from implementing their laws authorizing the use, distribution, possession, and cultivation of medical marijuana. Id.

Issue(s): “Kleinman argues that the anti-nullification jury instruction the district court gave prior to deliberations misstated the law and impermissibly divested the jury of its power to nullify.” Id. at 835.

Held:The last two sentences of the district court’s instructions could reasonably imply that the jury could be punished for nullification, or that nullification is a moot exercise because the verdict would be invalid . . . . Thus, the last two sentences of the instruction were erroneous.Id. at *837.

Of Note: Can DOJ spend funds to defend a Cali medical marijuana conviction on direct appeal
  The Ninth holds for the first time that the marijuana rider, and the limitations of McIntosh, “applies to continued expenditures on a direct appeal after conviction.” Id. at 832. 
  Before you move for forfeiture of an Appellate AUSA’s salary, however, read the pages of caveats that follow this new rule. Id. at 832- 835. In Kleinman, the Ninth didn’t remand for an evidentiary hearing on this issue, because there were convictions that violated state law, the arguments on those convictions were dispositive on all counts, and there were there was no relief in sight in any event. Id. at 834. 
  A nice McIntosh sentiment, the Kleinman holding, but in practice, a pretty fine needle to thread.

How to Use: Error - huzzah!
  Reversal? Not so much.
  Judge M. Smith explains that this jury nullification overstep was not structural error, because “there is no constitutional right to jury nullification.” Id. The Ninth assures us (without any harmless error analysis) that the “error was not structural and was harmless.” Id. at 838. Kleinman is now a lead decision on jury nullification (and specifically endorses the Rosenthal instruction that came out of Judge Breyer’s famous ND Cal case). Id. at 836-37. The Court also specifically rejects the Sixth Circuit’s nullification smack-down in Kryske. Id. at 837.
  Have Kleinman handy in your trial arsenal, to brush back AUSAs and D.J.’s keen on quashing a jury’s nullification power. (But be careful to say “power,” not “right!”)
For Further Reading: “Good people don’t smoke marijuana,” Attorney General Sessions explained to the Senate. The Attorney General is looking for “grown ups in charge in Washington to say marijuana is not the kind of thing that ought to be legalized.” See Washington Post article here
  The grown ups in the Senate have been unpersuaded, thus far.
  On July 27, despite A.G. Sessions’ objections, the Rohrabacher-Blumenauer amendment was adopted by the Senate Appropriations Committee for the FY 2018 appropriations bill. See article here
  Of course, there is now no hope that we’ll actually have a signed FY 2018 appropriations bill by the beginning of the new fiscal year on October 1: a continuing resolution (“C.R.”) seems inevitable.
  Will McIntosh / Kleinman remain relevant law, as budget breakdowns in Congress, the inevitable FY 2018 C.R. and A.G. Sessions’ steadfast opposition, roil through the summer?
   “Blunt” questions plague this “dis-jointed” political tangle.

Steven Kalar, Federal Public Defender N.D. Cal. Website at


Labels: , , ,

Tuesday, August 01, 2017

The Ninth Circuit denied relief to two death-row prisoners in the circuit. 

1. Clabourne v. Ryan, No. 09-99022 (Berzon, Clifton, Ikuta) --- The Ninth Circuit denied a petition for rehearing filed by an Arizona death-row prisoner in light of the grant of relief in McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015) (en banc). Judges Clifton and Ikuta did not see a reason to change the outcome of the case in light of McKinney; Judge Berzon would have granted penalty-phase relief under McKinney and remanded the case to the state courts for further proceedings. 

The opinions are here: 

2. Andrews v. Davis, Nos. 09-99012, -99013 (Ikuta with NR Smith; dissent by Murguia) --- Addressing a petition for rehearing, the panel replaced an opinion and reversed the grant of penalty-phase relief to a California death-row prisoner who alleged that he received ineffective assistance of counsel at sentencing.  

In state habeas proceedings, the California Supreme Court ordered an evidentiary hearing on the petitioner's penalty-phase IAC claim. That hearing took place over the course of six years. Ultimately, the California Supreme Court concluded that the petitioner received constitutionally adequate assistance of counsel at sentencing and that any inadequacy did not prejudice him. See In re Andrews, 52 P.3d 656 (Cal. 2002). Under AEDPA and Harrington v. Richter, 562 U.S. 86 (2011), the majority upheld the California Supreme Court's denial of relief. Judge Murguia dissented, pointing out that "the jurors who sentenced Andrews to death never knew that he was subjected for two years as a young teenager to brutal, inhumane, and degrading abuse by his state custodians at Mt. Meigs, a segregated reform school for 'Negro children' in Alabama. Had counsel presented this readily available mitigating evidence, there is a reasonable probability that at least one juror would have been moved to exercise mercy and spare Andrews's life." She decried the application of the AEDPA limitation on relief as "unconscionable." Dueling footnnotes throughout both opinions chastize the other side's application of the AEDPA limitation on relief. 

The decision is here:

Monday, July 31, 2017

United States v. Seminole, No. 16-30202 (Owens with Watford and Chhabria (N.D. Cal.)) --- The Ninth Circuit affirmed a conviction for assault of a domestic partner by strangulation under 18 U.S.C. § 113(a)(7). The defendant argued that the district court should not have compelled his wife, the victim of the charged crime, to testify against him under the marital privilege. In Wyatt v. United States, 362 U.S. 525 (1969), the Supreme Court held that the privilege does not apply when one spouse is the victim of a crime committed by the other spouse. The panel rejected the defendant's argument that Trammel v. United States, 445 U.S. 40 (1980), overruled Wyatt. The trial judge did not err in compelling the defendant's wife to testify against him at trial. 

Fans of Judge Owens will note that this opinion continues his lament against domestic violence in Indian country, which began with his dissent from denial of en banc rehearing in United States v. Bryant, No. 12-30177. 

The decision is here: 

Case o' The Week: Frustrated with the Whole Endeavor - Martinez-Lopez and Indivisible vs. Divisible Statutes

“Concurring in part and dissenting in part, but frustrated with the whole endeavor.”
   Judge Bybee’s candid assessment is a good preview for the Ninth’s latest foray into Taylor categorical / modified categorical sentencing.
  United States v. Martinez-Lopez, 2017 WL 3203552 (9th Cir. July 28, 2017) (en banc) decision available here.

Earl Warren Building, home of the California Supreme Court, San Francisco, California

Players: Decision by Judge Tallman, joined by Judges Kozinski, O’Scannlain, McKeown, Clifton, Bybee, Callahan and Bea.
  Judge Berzon, CJ Thomas, and Judge Reinhardt concurring in part. Partial concurrence and partial dissent by Judge Bybee. 
  Judges Reinhardt and CJ Thomas dissenting in part.
  Hard fought appeal by CD Cal Deputy Public Defenders David Menninger and Matthew Larsen, with Defender amicus by Assistant Federal Defenders Vincent Brunkow and Kara Hartzler, Federal Defenders of San Diego, Inc.

Facts: Mr. Martinez-Lopez was convicted of illegal reentry following deportation, in violation of 8 USC § 1326. Id. at *2. The court treated a California H&S Code § 11352 (drug prior) as divisible, employed the modified categorical approach, determined it was a +16 offense level offense under (the old) reentry guidelines, and sentenced him to 77 months. Id.
  The case went on banc: during the litigation the Supreme Court decided Mathis v. United States, 136 S. Ct. 2243 (2016).

Issue(s): “We took this case en banc to revisit the divisibility of California drug statutes.” Id. at *1.
  “On appeal, Martinez-Lopez argues that section 11352 is indivisible with regard to both its controlled substance requirement and its actus rea requirement.” Id. at *2.

Held:We disagree, and conclude that both requirements are elements under Mathis, thus rendering section 11352 divisible and subject to the modified categorical approach. Because Martinez-Lopez previously pled guilty to selling cocaine, which qualifies as a drug trafficking offense under the guidelines . . . we affirm.” Id. at *2.

Of Note: What are the elements of § 11352? On that answer much hinges: elements determine the "divisibility" of a statute, and divisibility determines whether a federal court can muck about prior conviction records in a modified categorical approach (which translates into radically more time for our clients). 
  Judge Berzon, an expert in this area of law (see Descamps), balks at Judge Tallman’s categorization of the actus rea component of § 11352 as an “element.” See id. at *9 (Berzon, J., concurring). A majority of the California Supreme Court did not so hold in People v. Patterson, 778 P.2d 549 (1989)id. at *12, and nary a single Cali court has cited Patterson for the proposition claimed in the majority opinion, id. at *13. 
  In a recommendation that would do a Federalist proud, Judge Berzon suggests that the Ninth Circuit not presume to tell the State of California what California law means. Instead, the Ninth should ask. Id. at *19.
   Penning this from the federal building in San Francisco, across the street from the home of the California Supreme Court, the irony of this dilemma is palpable. The
Tenderloin Neighbors: the California Supreme Court, and the Ninth Circuit Court of Appeals
California Supreme Court is a whopping .4 miles from the Ninth Circuit, here in the City by the Bay. The Justices and Judges could have trudged through the Tenderloin, met at Philz, and hashed it out over a cup of joe. Or, as Judge Berzon less flippantly suggested, the Ninth could have certified this state law issue to the Cal Supreme Court for a definitive answer on whether the actus rea in Cal H&S Code § 11352 is a means, or an element. Id. at *20.
  Recall that Judge Berzon’s formidable arguments in Aguila Montes de Oca ultimately prevailed in Descamps. Knock wood that SCOTUS again recognizes that she has the better argument in Martinez-Lopez.

How to Use: When this case went en banc we mused a bit about the potential downstream effects of Martinez-Lopez. See blog entry here
  As to the immediate impact, note that Martinez-Lopez was sentenced under the November 1, 2012 edition of the guidelines. Id. at *2 & n.2. The November 1, 2016 (current) version of this guideline, § 2L1.2, is no longer plagued with this specific offense adjustment. See USSG Sec. 2L-X (Nov. 1, 2016), available here.
     Like the recent Chavez-Cuevas case, , Martinez-Lopez is, in some sense, an instant relic – it involves a guideline which no longer exists.
For Further Reading: When Martinez-Lopez went en banc, we also wondered what impact the (at that point unknown) Ninth Justice would have on the Supreme Court’s Taylor jurisprudence. See blog entry here
  Now, with Justice Gorsuch on the Court, it is worth a revisit to Professor Evan Lee’s thoughtful post on the tight SCOTUS majority in Mathis (and the potential impact of a fed-up Kennedy on the Taylor line of law). See SCOTUS blog here

Image of the walk from the Ninth Circuit Court of Appeals to the California Supreme Court, in San Francisco, from Google Maps.

Steven Kalar, Federal Public Defender N.D. Cal. Website at


Labels: , , , , , , ,

Friday, July 28, 2017

United States v. Martinez-Lopez, No. 14-50014 (Tallman for the 9-2 en banc panel; Berzon concurring and dissenting; Bybee, concurring and dissenting but frustrated) --- The Ninth Circuit affirmed a sentence for illegal reentry, holding that a violation of Cal. Health & Safety Code § 11352 can qualify for the +16 enhancement under former U.S.S.G. § 2L1.2 as a "drug trafficking offense" because both the list of substances punished under the statute and the acts punished under the statute were separate elements of the crime under Mathis v. United States, 136 S. Ct. 2243 (2016), and Descamps v. United States, 133 S. Ct. 2273 (2013). 

Section 11352 of the California Health & Safety Code punishes drug trafficking. It punishes various acts in relation to drug trafficking -- transportation, importation, sale, furnishing, administering, or giving away, or offering to do any of those things. It also punishes these acts with respect to a list of drugs, some of which are on the federal schedules and some of which are not. As a result, the Ninth Circuit has held that § 11352 is overbroad with respect to the federal definition of "drug trafficking offense." The question the panel had to resolve here was whether the statute was divisible with respect to the acts and the drugs, such that a federal sentencing court could look to the documents relating to the prior conviction in order to determine whether the defendant had been convicted of a "drug trafficking offense" as defined by the Sentencing Guidelines. 

In Mathis, the Supreme Court said that this inquiry would be "easy" when state law already held that a jury must unanimously decide which of the statutory alternatives meets an element of the crime under state law. Here, the en banc panel found two decisions of the California Supreme Court that made this inquiry easy with respect to § 11352. As to the list-of-drugs aspect of the case, the panel said that in In re Adams, 536 P.2d 473 (Cal. 1975), the California Supreme Court had held that a violation of § 11352 happens with respect to one drug on the statutory list -- simultaneous possession of different drugs on the list constitutes different crimes under § 11352. And as to the acts punished under § 11352, the panel said that in People v. Patterson, 778 P.2d 549 (Cal. 1989), the California Supreme Court held that each of the alternative acts listed in § 11352 constitutes a separate crime. Thus the modified categorical approach was available to determine whether the defendant's prior conviction under § 11352 qualified for the +16 enhancement. 

Here, it plainly did. The defendant pleaded guilty to selling .42 grams of cocaine base, and was convicted under § 11352 based on these admissions during the change-of-plea colloquy. Thus, his prior conviction qualified as a "drug trafficking offense" under former U.S.S.G. § 2L1.2(b)(1)(A). The panel also held that the 77-month sentence, at the low end of the Guidelines range, was substantively reasonable. 

Judge Berzon, whose views about the categorical approach carried the day in Descamps, concurred in the outcome but criticized Judge Tallman's deployment of Mathis. She did not believe that the California Supreme Court had answered the actus reus question so clearly in Patterson as Judge Tallman said it did. Patterson, she said, did not directly address the question whether a California jury must unanimously determine that the defendant committed one of the alternative acts punished under § 11352. Her review of decisions of the California Court of Appeal that applied Patterson bolstered her assessment. Rather than having the federal courts guess about what state law means, Judge Berzon would have certified the question to the California Supreme Court. On the other hand, Judge Berzon did agree with Judge Tallman about the question regarding the statutory list of drugs and his reading of Adams.  

Judge Bybee, "frustrated with the whole endeavor," did not agree with Judge Tallman that the actus reus question was clearly resolved by Patterson. 

Judge Reinhardt, joined by Chief Judge Thomas, disagreed with Judge Berzon and Judge Tallman about both aspects of § 11352 based on his reading of California decisional law, and would have certified both questions to the California Supreme Court. 

Kudos to DFPD David Menninger of Los Angeles and AFPDs Vince Brunkow and Kara Hartzler of San Diego for their vigorous advocacy on behalf of the defense in this case. 

The decision is here: