Wednesday, September 20, 2017

Browning v. Baker, No. 15-99002 (9-20-17)(Gould w/Wardlaw; dissent by Callahan).  The 9th gave habeas relief in this Nevada capital matter. The 9th found that in a prosecution for a robbery and murder in a Las Vegas jewelry store, the prosecution committed Brady violations.  The expectation of favorable treatment by a witness for his testimony, an observation of a shoeprint by an officer, and the victim's description of his assailant's hairstyle all were favorable to the petitioner.  The evidence should have been turned over.  The evidence was material.  As for AEDPA deference, the 9th finds that the Nevada Supreme Court's use of the Supremes precedent was objectively unreasonable. The 9th also granted relief for IAC as to representation.  There was no Napue violation (awareness of evidence). The petitioner's escape conviction was upheld; there was no error presented.  Dissenting, Callahan argues that AEDPA deference should control.

The decision is here:

Sunday, September 17, 2017

Case o' The Week: Ninth Seals the Deal - Doe and Closed Dockets for 5K Sentencings

  “Snitches get stitches sealed dockets.”

 United States v. John Doe, 2017 WL 3996799 (9th Cir. Sept. 12, 2017), opinion available here.

Players: Decision by Judge Christen, (mostly) joined by Judge Watford and DJ Soto.

Facts: John Doe (name changed for security) cooperated to work down a meth importation sentence. Id. at *2. He gave info on a narcotics conspiracy; it lead to at least one arrest. Id. Doe received a § 5K1.1 departure at sentencing, and moved to strike the 5K references in the docket and seal entries relating to his cooperation and sentencing. Id. at *2. The district court refused, concluding Doe had failed to rebut the “presumption of openness that arises pursuant to the First Amendment.” Id. at *3.

Issue(s): “Doe argues that the public has neither a First Amendment right nor a common law right of access to § 5K1.1-related documents.” Id. at *4.

Held: “We assume without deciding that there is such a right, and conclude that the facts of this case rebut any resulting presumption of openness.” Id. at *4.
  “Nothwithstanding the lack of more specific threats to Doe and his family, the court erred when I failed to find a substantial risk to compelling interests under the facts of this case.” Id. at *6. “Absent closure, the record establishes that there is a substantial probability of harm to compelling interests in Doe’s case.” Id. at *5. “Here, closure is warranted.” Id. at *7.
   “Assuming that a qualified First Amendment right of public access attached to the § 5K1.1 documents in this case, Doe successfully rebutted the presumption of openness. Accordingly, we REVERSE the denial of Doe's motion to seal and denial of Doe's motion to strike and replace the docket entry text mentioning § 5K1.1. We REMAND for sealing in accordance with this opinion.” Id. at *9.

Of Note: Big issues, swirling about this brief opinion. The subtext is a 2016 report of the Judiciary’s Committee on Court Administrationand Case Management (CCACM). The Committee detailed the harms suffered by cooperators, and reported the “show me your docket” gauntlet that our clients have to run in federal prisons. Id. at *6. The Committee has admirable concern for cooperator safety, but CCACM has also cooked up some radical new proposals – including shifting to a sealed sentencing supplement for all cases (including non- cooperators). Id. at *8.
  CCACM has been pushing for adoption of its controversial proposals by district courts, even before they’ve been approved by the Judicial Conference. In Doe, Judge Christen lauds CCACM’s general intentions, but notes the Committee’s proposals won’t fly given Ninth Circuit First Amendment precedent. Id. at *8, discussing In re Copley Press, Inc., 518 F.3d 1022, 1026-27 (9th Cir. 2008)).

How to Use: As noted above, CCCACM’s “seal it all” proposal won’t work in light of Copley Press. However, Judge Christen explains, “nothing in our precedent prevents district courts from adopting some variation of the practices recommended by the CCACM Report, as long as district courts decide motions to seal or redact on a case-by-case basis. Without running afoul of Copley Press, district courts could include cooperation information in a sealed supplement if the presumption of openness is overcome. Our precedent also allows the presumptive sealing of documents attached to a motion to seal while district courts consider whether the documents should be made public.” Id. at *8.
   Anticipate district courts mulling Doe in cooperator cases – the opinion is a must read before a § 5K1.1 sentencing. 
  And if your client is the target of cooperation (and you’re skeptical of the government’s Brady / Giglio compliance), worry about what the Judiciary’s good-hearted efforts to protect cooperators will mean for your efforts to investigate the government’s witnesses against your client.
For Further Reading: Why does CCACMS’s obsession with sentencing secrecy make the defense bar nervous? 
  There are at least six million reasons . . .  See Matt Apuzo, “’I Smell Cash’: How the A.T.F. Spent Millions UncheckedA pair of Informants got $6 million and agents spent freely. The Justice Department fought to keep records of the operation secret,” available here. 

   How did the NYT break such this remarkable story of federal law enforcement abuse, dirty informants (and, by all appearance, corruption)? “The Times intervened in an ongoing fraud lawsuit over the activity and successfully argued that a judge should unseal them.” Id. (emphasis added)
   A sobering reminder of why the First Amendment matters, and an (outrageous) example of the dangers of sealing.

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Steven Kalar, Federal Public Defender ND Cal. Website at


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Friday, September 15, 2017

US v. Hernandez Martinez, No. 17-50026 (9-15-17)(Ikuta w/Fletcher & Barker).  This is a significant 1326 sentencing case under the 2016 amended  2L1.2 guidelines.  The 9th holds that the enhancement for 2L1.2(b)(2)(B) will depend on the sentence imposed before the first order of deportation/removal. The 9th joins the 5th in this interpretation. (Note that the Az district courts have been taking a contrary position).

The defendant was convicted of a felony in 2003 (lewd acts with a child). The state sentenced him to one year and five years of probation.  The defendant was then deported.  He returned without authorization, and faced a probation violation.  He received three years.  He was then deported.  In 2016, he was in the United States again, got another state sentence (a misdemeanor) and a 1326 charge.  The court applied the amended 2016 guidelines, and gave him an adjustment because his prior felony was imposed before he was deported. The adjustment was +8 levels because the court characterized the sentence as being more than 2 years. The defendant argued in court, and on appeal, that the state conviction did not trigger the +8 enhancement because he was sentenced to only a year of prison before his first deportation.  The issue is:  how to calculate the sentence length.

The 9th holds that under 2L1.2(b)(2)(B) the qualifying sentence must be imposed before the first deportation.  The 9th reasoned that the 2016 amendment is best read as continuing the Commission's prior interpretation of when first imposed.  The 9th examined the policy statements, and history of various amendments, especially the 2012 amendment, which had clarified that sentence imposed before deportation is what counts.  The 2016 amendment introduces ambiguity, but to the 9th's mind, did not reverse the prior clarification.  The 9th looked at the text which closely matches the 2012 amendment; any change was necessary for other reasons, and there was no suggestion of adopting the previous minority, and rejected, position. Finally, the 9th embraces the 5th's interpretation along the same lines.

As the 9th states:    "We conclude that when viewed in its historical context, the amended [] 2L1.29b)(2)(B) is best read as carrying forward the Commission's prior, unambiguous conclusion that a qualifying sentence must be imposed before the defendant's first order of deportation or removal." P. 14.

In so writing, the 9th also drops a footnote declining the government's request to use the interpretation set forth in  a "Primer on the Immigration Guidelines" published by the USSC.  The 9th comments that the Primer expressly disavows any authority to represent the official position; and most telling, "its unreasoned interpretation lacks persuasive power." P. 14-15, n.2.

The decision is here:
Atwood v. Ryan, No. 14-99002 (9-13-17)(Ikuta w/McKeown & Callahan)(Note:  This is an Az FPD case).  The 9th affirmed the denial of petitioner's capital habeas claims. AEDPA, as usual, cast its "state court's reasonableness" pall over the decision.

Petitioner had a prior conviction for lewd and lascivious conduct.  It was punishable, at the time of the offense, by life imprisonment.  Subsequently, the state legislature reduced the term of imprisonment.  This reduction meant, argued petitioner, that this conviction was improperly used as an aggravator.  As such, the class was of defendants was broader than required under capital jurisprudence and thus arbitrary. The 9th rejected this contention, finding that the state court's interpretation of future dangerousness or proclivity was reasonable.

The 9th also rejected the argument for an evidentiary hearing on police misconduct.  The contention that the police planted evidence (actually a paint smear on the bumper) was not, to the court, credible enough for a hearing.  The 9th agreed.

There was no IAC in the forensic approach as to time of death; nor IAC in the failure to present mental health evidence in the sentencing phase.  The 9th explained that counsel's concern that such evidence might open doors to an unfavorable diagnosis was a legitimate decision.  The petitioner also supposedly did not want such evidence presented.

On the Martinez claim, the 9th found no IAC by the state PCR counsel.

The decision is here:

Thursday, September 14, 2017

Cain v. Chappel, No. 13-9908 (9-13-17)(Rawlinson w/O'Scannlain & Collins).  The 9th affirmed the denial of a capital habeas petition.  The 9th concluded that the petitioner had received adequate notice of the special circumstance of the homicide, attempted rape.  The 9th found the state supreme court's finding of notice reasonable, the quasi-notice of rape or attempted rape, the factual basis, and counsel's lack of surprise. The 9th also found no IAC in counsel's concession of guilt in the guilt phase stage as the strategy was to save his life and the facts beyond challenge; no IAC in failure to object to the special circumstance in the second amended information because counsel was aware of the underlying charge; and no IAC in failure to investigate or present mental health or diminished capacity defenses. In terms of sentencing, there was no IAC in failure to present mental health and voluntary diminishment. There were risks in presenting such topics.  The Atkins claim was also denied.

The decision is here:
US v. Spatig, No. 15-30322 (9-13-17)(McKeown w/Murphy & Nguyen). "Good fences make good neighbors" is how the 9th starts this Opinion, but then noting that fences don't help much when someone is storing hazardous and combustible materials where he shouldn't be.  Here, the defendant retired from his job refinishing cement floors, but seemingly didn't stop work, or storing his leftover and discounted paints, finishes, and other materials at his home.  Complaints from neighbors led to a warning by city officials --don't store.  However, the defendant continued storing. When the county officials were called again, because of the condition of the property, they discovered thousands of cans of paint and other materials.  The site became a toxic cleanup: EPA officials had to don hazmat suits to remove all the materials.

In affirming the conviction for a violation of the Resource Conservation and Recovery Act, 42 USC 6928(d)(2)(A), the 9th found no error in the district court precluding evidence of defendant's diminished capacity.  (The defense was a mental or knowledge one). This was, concluded the 9th, not a specific intent offense. The 9th notes that the statute requires "knowingly," which is usually taken as general intent. The defendant has to know he is storing something, but the offense does not require a specific aim, particular purpose or achievable objective. Past cases dealing with this statute assumed general intent.  This decision also aligns with other subsections and with the model penal code.

The 9th affirmed the sentence as well against a guidelines challenge. The 9th found no error in an enhancing adjustment for substantial cleanup costs.  The amount was close to $500,000.

The opinion is an interesting read, with the opinion having some sly touches (past cases "paint" the statute as a general intent crime, and the aforementioned "fences"). Recently, in McChesney, the same author started with "he said/she said" in the first sentence.

The decision is here:

Tuesday, September 12, 2017

US v. Doe, No. 15-50259 (9-12-17)(Christen w/Watford & Soto). Do you represent defendants who cooperate? Do you represent defendants against whom there is cooperation? If so, and that should be everyone practicing federal criminal law, this is an important case.  It doesn't deal with substantive criminal law and procedure; rather, it deals with the issue of sealing filings and documents related cooperation departures.

The 9th reverses the district court's denial of a motion to seal those documents.  The court had refused to seal cooperation documents, including the departure memo. The court found a qualified first amendment right for public access that was not rebutted. The court also said that most cooperation was meaningless, and that the risks were small.

On appeal, the 9th reverses.  The 9th assumes without deciding that there is a qualified first amendment public right to access.  However, the defendant rebutted the presumption given his cooperation against the Mexican cartel, several other defendants both in and out of custody, and threats made to him and his family.

Of note is the discussion ongoing on whether courts should create dummy dockets, or have an entry that is sealed in every case, to prevent certain filings to red flag cooperation.  Cooperators are at risk in the BOP and the courts have been trying to protect them. The panel discussed the Court Committee on Administration and Court Management's (CCACM) report on cooperators and the grave risks they face.  CCACM advocates the process, in place in many districts, of having a sealed supplement or portion in filings and in sentencings to camouflage whether there has been cooperation. This procedure though is not without controversy, as it endorses sealed proceedings in every criminal matter, secrets information from the public and press, and creates misleading entries. It effectively hides cooperation in the dark.

The panel acknowledges that 9th precedent bars all the recommendations of CCACM. Specifically, In re Coply Press, Inc., 518 F.3d 1072. (9th Cir. 2008), states that the public has a qualified right of access to certain documents.  There must be an individualized assessment. That is a fight possibly down the road.

Watford here does not join the section of the opinion that deals with the government's interest in secreting its ongoing investigations.

The decision is here:

Monday, September 11, 2017

US v. Barragan et al, No. 13-50516 (9-8-17)(Hurwitz w/Lipez & Bea). This is a long opinion affirming the convictions, and nearly all the sentences, in a RICO gang prosecution.  The appeals raise a complete spectrum of issues.  It is a useful guide to approaching a RICO or gang conspiracy case.  Of special note, for all cases, was the 9th finding error in a prosecutor's closing remarks to the jury that they should say "no more." The 9th equates this with the improper "send a message" argument. However, although there was error, it was deemed harmless.

The decision is here:

Taniko v. Williams, No. 15-16967 (9-8-17)(Reinhardt w/Kozinski & Berg). The 9th reversed the district court's judgment that petitioner's federal habeas was untimely. The state trial court had entered a Second Amended Judgment after a remand from the State Supreme Court. The district court had used an earlier judgment to start the timely filing period.  This was error because the time runs from the judgment under which the petitioner is being held.  In Magwood v. Patterson, 561 US 320 (2010), the Supreme Court reached the same conclusion.

Congrats to AFPD Jonathan Kirshbaum of the FPD Nev office (Las Vegas).

The decision is here:
US v. McChesney, No. 16-30052 (9-11-17)(McKeown w/Callahan & Ikuta). The 9th affirms the district court's denial of a motion for a new trial.  The defendant, after conviction for a gun heist, argued that his ex-girlfriend had accosted jurors and made disparaging remarks about him, and that he should "go to prison." This issue was raised in the first appeal, and the 9th remanded for an evidentiary hearing "to dig a little deeper." The court dug deeper, and found that the allegations were not credible.  Court staff heard no such haranguing; jurors reported no contact with anyone about the case; and defense witnesses' stories did not align.  The 9th found the district court had not erred in finding "no credible evidence" any improper contact occurred. The defendant did not carry his burden.

As for other issues raised, the 9th held that the district court did not commit error in not recalling the jurors for live testimony.  This was a case where it was not required.  The court used a questionnaire instead as a way to contact the jurors years after the trial.  There was no error in the defendant not being present when procedures were discussed for the hearing.  It was a close call, especially as it related to objections to a questionnaire, but any error was harmless.  The district court did not abuse its discretion in failing to recuse itself.  Finally, defendant waived any error in the failure to preserve surveillance video as it was not raised in the first appeal.

The decision is here:

Sunday, September 10, 2017

Case o' The Week: Title III for Parolee - Gutierrez and Necessity Showings in Title III Wiretaps

 Necessity is the Mother of Invention (and the absent, Deadbeat Dad of Title III).
United States v. Jesus Barragan, 2017 U.S. App. LEXIS 17388 (9th Cir. September 8, 2107), decision available here.

Players: Decision by Judge Hurwitz, joined by Judge Bea and visiting First Circuit Judge Lipez.  

Facts: Feds obtained a Title III order, tapped, then charged Mexican Mafia members in a RICO case. Id. at *6. One defendant was “Bullet” Gutierrez. Id. 
  When the RICO investigation began, Gutierrez was in custody. Id. The wiretap sought interception of Gutierrez despite the fact that he was then on parole – and was already monitored – during the tap. Id. at *15-*16. The fact that Gutierrez was on parole, and was monitored, was omitted from the wiretap affidavit. 
  “Gutierrez moved to suppress the wiretap evidence and for a hearing pursuant to Franks . . . , on whether [the requesting agent’s] affidavit was materially misleading.” Id. at *13. The Title III challenge was denied. Id.

Issue(s): “Gutierrez argues that (1) suppression was required because the affidavit failed to show that a wiretap was necessary, and (2) a Franks hearing was required because the affidavit contained false information.” Id. at *12-*13.

Held: “[Re: necessity]: Overall, the [agent’s] affidavit explained in reasonable detail why traditional investigative procedures had reached their limit.” Id. at *15. [T]he fact that Gutierrez knew that he was being monitored suggests, if anything, that he would have been more discreet in communicating with conspirators, reinforcing the need for a wiretap.” Id. “The fact that the task force had some degree of success without a wiretap did not extinguish the need for a wiretap.” Id. at *16. 
  “Although the affidavit omitted the fact that Gutierrez was subject to monitoring as a condition of his parole, the district court would still have been reasonable to find the wiretap necessary had this fact been included.” Id. at *17 (internal quotations and citations omitted in all quoted language above).  

Of Note: Those who fight to protect the privacy interests guaranteed by Title III limitations will find Barragan disheartening. The agent/affiant who sought the wiretap omitted an important fact in the necessity showing of his affidavit: Gutierrez was on active parole, subject to the monitoring provisions associated with California parole, and could have been stopped, searched, and otherwise generally harassed by law enforcement (effectively at will). 
  Under traditional Title III analysis, omission of that important fact would be a Franks error, that undermined the “necessity” showing for the wire. (Whether the omission of that fact was fatal to the necessity showing is a different subject -- that would normally be the heart of the appellate analysis).
   But in Barragan, the Ninth oddly speculates that Gutierrez’s monitoring on parole supported the need for a wire. Id. at *16. The logic is hard to reconcile with Title III’s necessity requirements: is the Ninth saying that when law enforcement has more tools to investigate a suspect (like parole monitoring conditions), a wiretap is more necessary because the suspect will be more circumspect?
  There is no citation for this new correlation, and with no Franks evidentiary hearing in the case, there are no facts supporting this assumption. A discussion in Barragan that will haunt future Title III necessity litigation.

How to Use: Judge Hurwitz couches his musings on parole monitoring with the caveat that it “suggests, if anything, that [Gutierrez] would have been more discrete.” Id. at *15-*16 (emphasis added). The Court goes on, however, to conclude that it would not have been fatal to the affidavit, given the agent’s detailed discussion of other investigative techniques. Id. at *16.
  Read fairly, this “parole monitoring” discussion is, at most, unfortunate dicta: fight this issue in future Title III litigation.
For Further Reading: President Trump’s first Ninth Circuit nominee is Assistant United States Attorney Ryan Bounds, of Oregon. See Press Release here. 
D. Oregon AUSA Ryan Bounds
  Last week Oregon Senators Jeff Merkley and Ron Wyden wrote to the President. The Senators explained they do not intend to return blue slips supporting this nomination. See letter here. 
  It is notable that the first Ninth Circuit nominee that the President seeks to send to the Senate would arrive sans blue slips. 
  Battles between the branches loom.

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


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