Sunday, December 17, 2017

Case o' The Week: A Present in the Johnson Stocking - Jones, Arizona Armed Robbery, and ACCA "Crime of Violence"

 Merry Christmas, and Happy New Year, Mr. Jones.
United States v. Rick Allen Jones, 2017 WL 6395827 (9th Cir. Dec. 15, 2017), decision available here.



Players: Per curiam decision with Judges M. Smith, Motz, and Nguyen. 
  Big win for AFPD Keith Hilzendeger, District of Arizona.

Facts: Jones pleaded guilty to 18 USC § 922(g)(1). Id. at *1. The court found he had been convicted of at least three violent felonies, and sentenced him under the ACCA. Id. 
  After the Supreme Court’s 2015 Johnson decision and Welch, Jones filed a § 2255 motion attacking these priors. Id. 
  The district court denied the motion.

Issue(s): “Of Jones’s five prior felony convictions, three were for armed robbery under Arizona Revised Statutes § 13-1904. Therefore, whether Jones is subject to the ACCA’s fifteen-year mandatory minimum sentence depends on whether these convictions qualify as violent felonies.” Id. (footnotes omitted).  

Held:We conclude that [the holding in United States v. Molinar, 2017 WL 5760565 (9th Cir. Nov. 29, 2017)] applies equally to the question of whether Arizona armed robbery is a “violent felony” under the ACCA's force clause. The ACCA’s force clause is identical to the Sentencing Guidelines’ force clause, and we see no reason to analyze these provisions differently. . . . .The fact that Johnson I specifically defined “physical force” with respect to the ACCA's force clause (which definition was extended by Molinar to the Sentencing Guidelines' force clause) further bolsters our conclusion. See Johnson I, 559 U.S. at 135. Therefore, we hold that Arizona armed robbery does not categorically qualify as a violent felony under the ACCA's force clause.” Id. at *2.

Of Note: The holding above was the first half of this admirable win: Arizona armed robbery not a C.O.V. under the ACCA’s force clause. What about the “enumerated felonies” clause, and the wacky government theory that “generic extortion” is the same as “generic robbery?” Another defense win: “Arizona armed robbery also does not qualify as a violent felony under the ACCA’s enumerated felonies clause.” Id. at *3.
  A clean Ninth sweep makes for a great Christmas for Mr. Jones, and a Happy New Year resentencing.  

How to Use: Jones reverses that damnable whipsaw that has long sliced against our clients. 


  After years of suffering adverse guideline decisions extended to the ACCA, and vice versa, the Court now flips that approach and extends a favorable Johnson guideline analysis to our benefit, in the context of the ACCA. Id. at *2 ("The ACCA's force clause is identical to the Sentencing Guidelines' force clause, and we see no reason to analyze these provisions differently.") 
  Jones is a good reminder to mine both veins of law - Guidelines and ACCA - when mounting a Johnson challenge.
                                               
For Further Reading: The big shoe yet to drop in the Johnson saga is Dimaya.
 You’ll recall that great Ninth decision applied Johnson to a civil statute – 18 USC § 16(b) – that defines “crime of violence” in the context of immigration. Judge Reinhardt persuasively explained that the same due process principles that drove the vagueness analysis in Johnson applied with equal force to this important immigration definition, in Dimaya. See blog entry here
  The SCOTUS case was carried over onto Court’s October 2017 term, to give Justice Gorsuch a chance to weigh in. As of this writing, we’re waiting anxiously for the decision (note at least one veteran observer reads the tea leaves favorably). See SCOTUS blog here
  When will we know the outcome? “Opinions are typically released on Tuesday and Wednesday mornings and on the third Monday of each sitting, when the Court takes the Bench but no arguments are heard.” See Suorene Court website here
  Last Spring the Court handed its final decisions at the end of June.  See article here Pundits predict a 5-4 decision in Dimaya, which takes a little longer to write, but the Court also had this case the previous term – so it has had much time to start hammering on an earlier draft.
   Punchline? Look for the decision sometime in the next 195 days . . .




Image of whipsaw from https://openclipart.org/image/2400px/svg_to_png/19727/wasat-Whipsaw.png 



Steven Kalar, Federal Public Defender, Northern District of California. Website at www.ndcalfpd.org


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Thursday, December 14, 2017

US v. Werle, No. 16-30181 (12-13-17)(per curiam w/O’Scannlain, Tallman, and Watford).

The 9th finds that a Washington state conviction for felony harassment is a COV under the Sentencing Guidelines. 

The 9th focuses solely on the felony harassment, the subsection of conviction, because the general harassment statute is categorically overbroad. The divisible subsection requires a threat to kill. Such a threat has a mens rea of intent and so qualifies. 

The 9th rejects defendant’s arguments that the threat may be too far in the future to be viable or evidence intent; that it may be negligent; and that it may not require force such as poison.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/12/13/16-30181.pdf

Sunday, December 10, 2017

Case o' The Week: Expert Case A Bitter Pill to Swallow - Diaz and Expert Testimony on Ultimate Legal Issue

  A doc prescribes 5 million opiate pills in four years.
  (Yet the government still needs an expert to opine on the ultimate legal issue: that this was “outside the usual course of professional practice?”)
United States v. Julio Diaz, 2017 WL 6030724 (9th Cir. Dec. 6, 2017), decision available here.

Players: Decision by Judge Christen, joined by Judges Kleinfeld and Graber. 
  Hard-fought appeal by former CD Cal AFPD Davina Chen.  

Facts: Dr. Diaz operated a clinic that served geriatric patients. Id. at *1. Over four years, he wrote 50,000 prescriptions and distributed over 5 million opiate pills – some patients were prescribed over 60 tablets a day. Id.
  He went to trial on 79 counts of unlawfully distributing controlled prescription drugs, in violation of 21 USC § 841(a)(1). Id. Among other things, that statute requires proof that the distribution of the drugs was “outside the usual course of professional practice and without a legitimate medical purpose.” Id. (citation omitted).
  At trial, a government expert testified without defense objection that Dr. Diaz’s prescriptions were written “outside the usual course of medical practice” and “without a legitimate purpose.” Id.
  Diaz was convicted on all counts, and sentenced to the maximum Guideline range: 327 months. Id.

Issue(s): “Diaz timely appeals, arguing that Dr. Chavez impermissibly offered opinion testimony as to a legal conclusion.” Id.  

Held: “We hold that if the terms used by an expert witness do not have a specialized meaning in law and do not represent an attempt to instruct the jury on the law, or how to apply the law to the facts of the case, the testimony is not an impermissible legal conclusion.” Id. at *3.
  “[The government’s expert’s] testimony passed muster under Rules 702 and 704, and the district court did not plainly err by admitting it into evidence.” Id. at *4.  

Of Note: Julio Diaz joins a long list of disappointing expert testimony cases. AUSAs will try to stretch the opinion to argue that “professional” experts can opine at will as to all legal conclusions. Judge Christen, however, strictly limits this “ultimate issue” testimony to a doc’s testimony on “legitimate medical purpose” – a term (we’re told) that does not have a “separate, distinct, and specialized meaning in law.” Id. at *3. The Ninth quotes favorably from a Fourth Circuit case, which distinguished this permitted physician testimony from – for example – testimony about “extortion, deadly force, fiduciary, and unreasonably dangerous.” Id. (quoting United States v. McIver, 470 F.3d 550,561-62 (4th Cir. 2006)). Invoke Diaz’s internal limitations to help prevent further erosion of the vulnerable bulwarks of FRE 702 and 704.

How to Use: While this is a plan error case, there is no plain error analysis in the opinion – just a cursory acknowledgement at the outset, id. at *2, and the “no plain error” holding at the end, id. at *4. Absent is any explanation of how the Court’s decision jives with the Olano plain error prongs. From ambiguity, opportunity. If the government offers similar doctor testimony in your trial, object and (try) to distinguish Julio Diaz as an extraordinarily deferential, plain error review decision.
                                               
For Further Reading: What a difference perspective makes. For those in the trenches of indigent criminal defense, the American Bar Association can sometimes seem like a conservative organization – filled with former AUSAs who sit on the ABA’s white collar and criminal justice committees. Senate Republicans, however, have a decidedly opposite view – they “have declared war on the American Bar Association.” See Republicans step up defense of ‘not qualified’ judicial nominees, available here at Politico.
   Four of President Trump’s judicial candidates have earned a “not qualified” rating from the ABA. The ABA’s role (or lack thereof) in judicial vetting will faces an upcoming test with a Senate procedural vote on Mr. Leonard Steven Grasz. Mr. Grasz is nominated for the Eighth Circuit Court of Appeals, and received a unanimous “not qualified” stamp from the ABAs evaluators. Id.
  Will be interesting to see what role (if any) the ABA plays in the Trump candidates for the vacant Ninth Circuit seats.





Steven Kalar, Federal Public Defender Northern District of California. Website at www.ndcalfpd.org

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Friday, December 08, 2017

US v. Valdivia-Flores, No. 15-50384 (12-7-17)(O'Scannlain w/Marquez; O'Scannlain concurring; Rawlinson dissenting).

The 9th reversed a 1326 judgment and remanded because the defendant's Washington prior was not an aggravated felony.  Seems pretty cut and dried? Well, it gets interesting.

The 9th first found that the defendant's waiver of rights to seek judicial review was not considered and knowing.  The form was confusing as to what he could challenge, and under what basis.

Once the defendant cleared the procedural hurdle, the 9th looked at his conviction for drug trafficking.  The 9th was shocked to discover that the state aiding and abetting statute was broader than the federal statute.  It required only knowledge, and not specific intent.  The federal statute and most other state statutes, require the defendant to intend to act, not just merely know his acts could help or further.  As such, since all jurisdictions have eliminated the distinction between the principal liability and aiding and abetting, the conviction of the latter is like a conviction for the former.  Thus the conviction could be under both theories.  The statute was not divisible in this regard.  Because it was not divisible, the modified categorical approach cannot be used.

As observed by Davina Chen, a longtime CJA counsel, this may allow us to argue that most convictions in the mere knowledge aiding and abetting states should not be agg felonies.  The states appear to be Indiana, Iowa, Massachusetts, Nebraska, Oklahoma, and Washington.

It does not even matter if the defendant was the only participant, because a jury could have found on separate theories.  Because the statute is overbroad on its face, the defendant here and elsewhere need not show that there is any actual conduct that is broader than the generic statute.

Concurring, O'Scannlain expresses frustration at the overbreadth and the expansion of the categorical approach.

Dissenting, Rawlinson argues that the majority goes looking for trouble.  The statute in question was drug trafficking; the majority should not have considered aiding and abetting.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/12/07/15-50384.pdf

Thursday, December 07, 2017

US v. Diaz, No. 15-50538 (12-6-17)(Christen w/Kleinfeld & Graber). 

How far can an expert go in pronouncing a legal conclusion?  Pretty far.  Here, in a drug distributing prosecution involving a doctor prescribing opiate pills, the prosecutor had to prove there was no legitimate reason for the defendant doctor to prescribe the drugs. To prove that element, the prosecution expert testified that the prescriptions were written "outside the usual course of medical practice" and "without a legitimate purpose."  Counsel did not object.  This mirrored the jury instruction language.  On appeal from the 79 counts, the defendant argued that the expert offered a legal conclusion.  The 9th affirmed the convictions.  Under Fed R Evid 702 and 704, the panel observed that sometimes it is "impossible" for an expert to render an opinion without resorting to the same language that is the applicable legal standard. "We hold that if the terms used by an expert witness do not have a specialized meaning in law and do not represent an attempt to instruct the jury on the law, or how to apply the law to the facts of the case, the testimony is not an impermissible legal conclusion." (10). The 9th joins other circuits in this conclusion.

This opinion is important if you have expert cases, and the experts are going to go forth into areas of intent and meaning.  Remember, this was decided using plain error.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/12/06/15-50538.pdf

 
Rowland v. Chappell, No. 12-99004 (12-6-17)(Owens w/Wardlaw & Clifton).

AEDPA's "extreme deference" to state court decisions resulted in the affirming of a denial of a capital petition.  The 9th agreed with the state Supreme Court that IAC occurred in the late retention of a psychiatrist days before the penalty phase began, and with inadequate preparation.  The 9th deferred to the state supreme court that there was no prejudice.  Likewise, with inappropriate statements by the prosecutor in closing, the 9th again deferred to the state supreme court's conclusion that constitutional rights were not violated.  The 9th agreed with the state supreme court that there was no conflict arising when the defense counsel had a close personal relationship and friendship with the chief investigating officer.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/12/06/12-99004.pdf

Monday, December 04, 2017

US v. Murillo-Alvarado, No. 14-50354 (12-4-17) (Clifton w/Friedland & Chen).

A holding foretold by precedent.  In a sentencing appeal from a 1326 conviction, the 9th finds that Cal Health & Safety Code 11351, possession or purchase for sale of a designated controlled substance, is divisible.  The 9th, in US v. Martinez-Lopez, 864 F.3d 1034 (9th Cir. 2017) (en banc), had concluded that section 11352 of that code, very similar to 11351, relating to transportation, was divisible.  Based on that reasoning, divisibility is applied here. The government could use a modified categorical approach, which it did successfully, and proved that the defendant sold cocaine. This is a drug trafficking offense under the guidelines and the +16 level enhancement is affirmed.

Saturday, December 02, 2017

Judge o' The Week: The Honorable Judge Harry Pregerson

  I’m invoking author’s privilege to pay tribute to Judge Harry Pregerson, for whom I clerked. He passed away last week.


  At the memorial service on Friday eloquent speakers struggled with their tasks before a huge (and teary) crowd. Think of that that trope of blind men describing their parts of an elephant – it was a life far too big to take in with any one grab. I’ll therefore mull one small corner of the Pregerson pachyderm: Harry the Judge.
  In the Ninth the senior active member of a three-judge panel assigns the job of writing the majority disposition. That senior judge can accordingly horde a juicy plum of an opinion to write for themselves. Appointed by Carter in 1979, the very senior Judge Pregerson often controlled this valuable power of the pen. 
 So what high-profile appeals did he assign himself to write? 
  Inevitably, he took the Social Security benefit cases, the immigration appeals, the guideline arguments – legions of obscure and “unimportant” opinions that some of his colleagues may have been secretly relieved to dodge. Sure, he’d tackle cutting-edge con law cases, and yes, his decisions have made the New York Times. His real passions, however, were disability insurance benefits and the absurd intricacies of the Immigration and Nationality Act. The less powerful, prestigious and newsworthy the plaintiff or criminal defendant, the more likely that appeal would end up on the desk of a Pregerson clerk to help with a draft. See e.g., Tackett v. Apfel, 180 F.3d 1094 (9th Cir. 1999) (Admin law judge required to call vocational expert for a disability claim) (citing, coincidentally, the persuasive authority of other J. Pregerson disability decisions!)
  Lipman is a notable example of this opinion cherry-picking. Michael Lipman got twenty-one months for illegal reentry. See United States v. Lipman, 133 F.3d 726, 728 (9th Cir. 1998). He had “numerous” felony convictions. Id. Lipman argued his guideline sentence should have been lower because he had been assimilated into American society. Id. Honestly, who really cares about the Lipmans in our world – undocumented aliens who have racked up multiple felony priors and are convicted of illegal reentry?
  Harry cared. Harry really cared.
  In Lipman, the Judge explained that cultural assimilation is a valid departure basis from the (then) mandatory guidelines. Id. at 732. This 19-year old opinion is now a quirky little corner of the increasingly-irrelevant sentencing guidelines. Yet judicial recognition of this important facet of our clients’ humanity has made a real difference for hundreds of assimilated undocumented aliens facing harsh federal sentences.
  Pregerson cared about the little guy. He even cared when the little guy was – well, a bit of a schmuck. The Judge was a proud Marine, a Purple Heart recipient who was grievously wounded on Okinawa in WWII. Yet in two published cases Judge Pregerson came out swinging hard on behalf of our nutty clients who lied about receiving Purple Hearts. See e.g. Blog entry here see also blog entry here . Remarkable opinions, written by a jurist and a veteran still limping from the shrapnel he carried.
  I am one of the one hundred and fifty lawyers who proudly serve in Harry’s Clerk Corps (he never discharged us from duty). We clerks know that Judge Pregerson’s legal legacy isn’t a single bold constitutional opinion, or his brave feuds with a misguided SCOTUS. His true judicial legacies are the innumerable, obscure opinions of which you’ve never heard -- the “unimportant” dispos that made a world of difference to the poor, to immigrants, to our indigent clients facing unjust laws and punitive sentencing guidelines.
  Gandhi allegedly observed that “a nation’s greatness is measured by how it treats its weakest members.” That’s an equally good yardstick for a judicial career. By that standard (and by many others), the Ninth Circuit’s Honorable Judge Harry Pregerson was one of the greatest.
  Semper fidelis, HP.  





Image of Marine Harry Pregerson from Memorial Service, Shrine Auditorium, December 1, 2017.

Steven Kalar, Federal Public Defender Northern District of California. Website at www.ndcalfpd.org


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