Recent Blog Posts

Probable cause

Randall J. Craig — Thu, 17 May 2012 16:02:00 GMT

US v. Cervantes, No. 09-50521 (5-16-12)(Pregerson with Nelson; dissent by Ikuta). Usually defendant's fourth amendment motion is quixotic when it concerns an auto stop, an arrest, and impoundment of the vehicle, in which two kilos of cocaine were found and inventoried. Tilting at windmills?

Not so here. The defendant was observed leaving a so-called stash house, taking the long way home, and then, the next day, after some trips, driving his car again. The agent asked the local police to follow and make a lawful arrest to help investigate. The police observe the "failure to stop" and pulled defendant over. He couldn't find his license (located the next day), and so was arrested for driving without. But, before he was arrested, the car was impounded. The 9th reversed the denial of the fourth amendment motion, holding that there was no probable cause to stop the defendant after leaving the stash house. The conclusion that it was a house of ill-repute was a mere conclusion; no facts were given. As for taking the long way home, there could be many innocent reasons. Thus, leaving the house, with a white box, is not enough. As for the stop, the problem with that comes from the police failing to impound the car after the arrest. They impounded first, which violate s the California procedure. The police also acted pretextually. Lastly, the car posed no danger. Dissenting, Ikuta argues that the simple rule, that all police know, that a car can be impounded incident to arrest, has been smudged with this opinion. To her, and the police, the car did pose a threat, parked on the side of a four lane busy street, miles from the defendant's home, and without a passenger to drive it home. Moreover, the arrest was lawful, given the lack of license at the time. The police impounded incident to arrest; the arrest does not have to come first.

Latest in 8th Amendment challenges

Randall J. Craig — Wed, 16 May 2012 18:31:00 GMT

Lopez v. Brewer, No. 12-16084 (5-15-12)(McKeown with Rawlison, concurrence and dissent by Berzon). Disclosure: This is an Arizona FPD-CHU case.

Once again Arizona is mounting an execution under authority that awards total discretion to the Director of Corrections in how it is administered.

The Director changes the protocol from execution to execution, and as such, courts reviewing the state's methods are "on a rolling ship." The 9th faced another challenge to the protocol, and expresses, again, great frustration, and even anger, at the state's claims to be trusted that no harm will occur, that everything will go fine. In the context of whether a preliminary injunction should be granted, the 9th finds a lack of a serious question in terms of success on the merits. The 9th also affirms the denial of the 8th amendment challenge as to pain from the placement of the IVs (femoral cuts), and the equal protection challenge as to the altering protocols. The 9th does grant limited relief in requiring the state to provide access to counsel up to 9:00 am (the execution begins at 10).

Dissenting, Berzon excoriates the state for its failures of proof, its lack of transparency, its secretive "in my discretion" answer to how things will be done, and for its stonewalling. Berzon argues that a violation of due process occurs. As she ends her dissent:

Executing someone convicted of a capital crime is a grim endeavor.

Reviewing the details of impending executions to assure against unconstitutional executions is grim as well, a task judges would rather avoid. Yet, while we as judges cannot and should not micromanage executions, we do have an obligation to stand as a last bulwark against excessively painful administrations of the death penalty. To do that, we need to be presented with the relevant facts, gathered in some feasible fashion. As matters now stand, Arizona has made the gathering of such facts by condemned prisoners so difficult that meaningful judicial consideration at a relevant time is not possible. By doing so, Arizona has denied Lopez, and others awaiting execution in Arizona, due process of law. I would stay Lopez's execution until this denial of due process is corrected by one or more of the means I have indicated.

Latest in Post conviction relief

Randall J. Craig — Tue, 15 May 2012 18:47:00 GMT

Sexton v. Cozner, No. 10-35055 (5-13-12)(Tallman with Tashima and Ikuta).

The 9th affirms the denial of petitioner's claims. The petitioner plead to two counts of intentional murder, rather than aggravated murder, for which he received two terms, running consecutive, of at least 25 years each (a total of 50). The court appointed counsel allowed petitioner to argue that counsel committed IAC in his plea and sentence. The 9th held that counsel was not ineffective in his advice regarding the plea, and the plea colloquy established a knowing plea. The petitioner knew the sentences could be run consecutive or concurrently. Counsel's argument at sentencing focusing on prior childhood abuse at the hands of a relative was strategic, even if it upset family. The 9th also had an opportunity to consider the recent Martinez case concerning IAC of PCR counsel. The 9th broadened the court appointment counsel to include a claim of IAC against PCR counsel, where petitioner asked for a limited remand to establish such ineffectiveness. The 9th denied the request, although admitting that in other instances, if the record is bare as to the actions of PCR counsel, a remand could be warranted. Here, PCR counsel could not be considered ineffective for failing to raise an IAC claim against trial counsel, given that the 9th found that any such claim would be meritless.

Latest in Hearsay Evidence from the 9th Circuit

Randall J. Craig — Mon, 14 May 2012 17:46:00 GMT

US v. Hieng, No. 09-10401 (5-11-12)(Wallace with Bybee; concurrence by Berzon). This weekend, if you are pulling weeds from your garden, reflect taht you are engaged in a present sense impression. How? Well, according to the 9th, yanking up marijuana plants, and keeping a mental tally, is a present sense impression, because that is how we tick off things (cf one opinion, two lattes, three strikes?). But wait, I am getting ahead of the opinion. This case deals with marijuana cultivation of over a 1000 plants.

It also seemingly has a 1001 evidence issues. The defendant, when confronted, sputtered that he didn't know the plants were growing in the vineyard (grapes of wrath they weren't) because he was just a renter who spent nights on the property (it got dark out there). He also gave some other statements that could be used against him (small plants don't smell).

He turned down a deal, after a proffer meeting, and went to trial. Upon conviction, he got 10 years. On appeal, he raised some interesting evidentiary and confrontation issues. Back to the plants, and present sense impression. where he argued that the agent's testimony as to the number of plants (for the mandatory minimum) was hearsay. The testimony was that that the agents yanked or cut the plants, walking the rows, and kept a mental tally, which the agents reported to teh agent in charge, who tallied them up, and wrote it down. To come into evidence, the number of plants yanked and tallied had to meet the evidentiary exceptions. Like some sort of legal "inception," the first level was the present sense impression (lets see, one plant, two plants three plants etc) and then when given to the agent, it became his recorded present sense impression of their present sense impressions made while fresh in his mind. His report was a recorded recollection (5082). Berzon, in her concurrence, takes issue with this, fearing that the present sense impression was not so present, as one had to remember the count, and there was a period of time when "thought" entered into it (how many did I yank? and why does it matter?). She believes that the majority is stretching the exception, and points out that the parties nor teh court thought it applied. She would let it in under the reliability exception of FRE 807, excusing lack of pretrial notice because of the notice given in trial. Expect to see this case cited whenever agents have numbers at stake.

.Another interesting issue is the interplay between Crawford and evidence when it comes to interpreters. In the matter of a defense statement, must the interpreter be available for confrontation? After all, the defendant is there and it is his statement. The 9th, under the pre-Crawford Nazemian precedent, considers an interpreter a language conduit, and need not be subject to cross examination, unless the issue of factual inaccuracies come up, and then the interpreter is a declarent. . The majority carefully parses the issue, under a plain error review, and resolves that Nazemian remains binding, for now. Berzon concurs in the admission, under plain error review, and because the interpreter was in court and could have been called. However, Berzon cautions that an act of translation is an art, and much less rigorous than a lab report, such as in Bullcoming. She believes this should resolved en banc, with, it seems, the defendant having the right to confront the interpreter.

The issues keep on coming in this case. The next concerns the use of the defendants proffer statements to impeach him. The defendant did not object at trial, but argues now that the court sua sponte should have asked if he had waived his rights under Fed R Crim P 11(f) and FRE 410. The gov't did not have a written plea or proffer letter, but argued that in such a setting, the defendant would have waived as a condition. The 9th lets it in, because that is the practice of getting such waivers, and there was no objection, and the court should not have a duty to sua sponte inquiry.

Still, a written proffer is the better practice.

Ineffective assistance of counsel

Randall J. Craig — Mon, 14 May 2012 17:43:00 GMT

Thomas v. Chappell, No. 09-99024 (5-10-12)(Graber with Bea; dissent by O'Scannlain). "Bo did it!" At least that is what petitioner claimed when prosecuted for two murders that occurred in 1985 in a homeless encampment near San Francisco bay. The petitioner was last seen with the victims, had been traveling with them, had partied with them, and had a high powered rifle that matched the bullet wounds. He also made some strange comments, and asked a friend to hold a rifle cleaning kit for him. But, there was no motive, no direct witness evidence, the petitioner had reported the rifle stolen, and there was evidence that someone else (Bo) did it. The problem was that defense counsel failed to find the witnesses that placed Bo at the scene, and having him make some comments that could be construed as guilty knowledge. The state supreme court had found counsel ineffective, but held no prejudice. The district court found prejudice and granted the writ. The 9th affirmed, also holding that prejudice existed. It was a close question at trial without the witnesses (five day jury deliberation) and the 9th concluded that the state court constitutionally erred in not finding prejudice. Dissenting, O'Scannlain argued that the majority made the case closer than it was, and that the evidence supported petitioner's guilt.

Latest in probation cases from the 9th Circuit

Randall J. Craig — Mon, 14 May 2012 17:40:00 GMT

US v. Vallee, No. 11-30131 (5-10-12)(Callahan with Hug and D. Nelson).

Does a judge have to sign a summons for a SR violation? "No," said the 9th, because the court read and signed the petition, and ordered a summons

be issued. Here the defendant was oh-so-close to finishing out his SR

term. He was in the final month when he was arrested for drunk driving.

The order was issued four days before his term was to expire. The defendant didn't show for the hearing, and was arrested later, after his SR expired. It was tolled, even though the court didn't sign the summons, because the court did sign the petition and ordered the summons be issued.

The Fed R Crim P do not specifically state who must sign a SR warrant.

Rule 4 states that judges must sign summons on complaints; Rule 9 states that a clerk must sign summons on indictments. Since Rule 9 allows for summons to be signed in some instances by clerks, it can be assumed that Congress, by requiring a court to sign a SR petition, does not require a judge's signature for a SR violation summons or warrant. The 7th Cir.takes a similar approach.

Latest in the 9th Circuit

Randall J. Craig — Mon, 14 May 2012 17:33:00 GMT

US v. Zhou, No. 10-50231 (5-10-12)(M. Smith with Kleinfeld and Sammartino, D.J.) An infinite number of law clerks, conducting an infinite number of Westlaw searches, eventually would connect the Second Amendment, Leo Tolstoy and James Taylor in a paragraph search, but the odds are that the wait would be long. Better would be to look up this opinion, where the amendment, author, and singer are used to signify the importance of "and."

And what is the Second Amendment, "War and Peace", and "Fire and Rain"

doing? Is this an opinion about firearms and intellectual property? Nope.

The 9th deals with a HIPPA violation, and the knowledge required. 42 USC 1320d concerns violating access to a patient's records. The misdemeanor offense requires that the information be obtained "knowingly and in violation of this part...." The defendant a health research assistant, who was let go, subsequently accessed patient records. He was charged. He moved to dismiss the charge because it did not allege that the defendant knew that the statute prohibited him from obtaining health information.

The 9th held that the statute did not require specific intent; rather, the "knowingly" requirement referred to the fact of obtaining information, and the "and" then meant that such obtaining violated HIPPA. The 9th goes through the statute, the language, and the precedent concerning "knowingly"

followed by an "and". The examples used on p. 5045 show the value of "and" (i.e. "keep bear arms," "War Peace" and "Fire Rain.") Yes, a strange

trio--query: did each member of the panel pick one, or did the clerks weigh in? In any event, why a Russian author? And why does the opinion say that Taylor singing "Fire and Rain" without the "and" ," would have "confusingly crooned" the song? Crooned? Really? Still, he's got a friend in the 9th, which shows how how sweet it is to be cited by them.

Latest court rulings regarding testimonial evidence

Randall J. Craig — Mon, 14 May 2012 17:11:00 GMT

In United States v. Hieng, 09-10401 which was an appeal from: C.D. Cal. (Wanger, J.) and argued & submitted: 8/30/11 to the Court panel in San Francisco, it was upheld a jury conviction and sentence for conspiracy to manufacture and distribute more than 1,000 marijuana plants and for manufacturing and cultivating, and aiding and abetting the cultivation of more than 1,000 marijuana plants.

The panel held that the district court committed no plain error in failing to inquire, sua sponte, whether the defendant had waived his rights under Fed. R. Crim. P. 11(f) and Fed. R. Evid. 410 not to have statements he made during proffer discussions used against him. The panel wrote that the district court may have reasonably presumed that the defendant's failure to object meant that he agreed that his statements were admissible.

The panel rejected the defendant's Sixth Amendment Confrontation Clause challenge to the district court's conclusion, prior to the selection of the jury, that the interpreter who translated for the defendant during his post-arrest interview was not a percipient or fact witness and therefore did not need to testify. The panel held that under United States v.

Nazemian, 948 F.2d 522 (9th Cir. 1991), the district court properly treated the interpreter as a mere language conduit for the defendant, and that the defendant therefore did not have any constitutional right to confront the interpreter. The panel wrote that this court's approach to interpreted statements is not clearly inconsistent with the Supreme Court's Crawford line of cases and that Nazemian remains binding.

The panel held that in allowing a detective's testimony to prove, based on hearsay reports, the total number of marijuana plants eradicated by detectives, the panel improperly applied a "reliability" exception. The panel held, however, that each of the three level of hearsay levels at issue conformed to an established hearsay exception: reports from other detectives are admissible under the present sense impression exception, Fed. R. Evid. 803(1); a tally sheet is admissible under the exception for recorded collections, Fed. R. Evid. 803(5); and the defendant's formal report is also admissible as a recorded collection.

The panel held that in denying the defendant safety-valve relief from the statutory minimum sentence, the district court did not clearly err in finding that the defendant failed to prove that he truthfully provided to the government all the information and evidence he had.

Latest news in theft!

Randall J. Craig — Wed, 25 Apr 2012 21:25:00 GMT

US v. Milovanovic, No. 08-30381 (4-24-12)(en banc)(Tallman writing; Clifton concurring). Sitting en banc, the 9th considers what exactly is required for theft of honest services under the mail fraud statutes. The context was an alleged bribery scheme where Serbian translators in a state administered commercial license test gave the answers to the test, allowing unqualified nonresident drivers to pass. The indictment was dismissed on the basis of the scope of the fiduciary relationship and the need for economic harm. The 9th reverses, holding that (1) a fiduciary relationship is an element of honest services mail fraud, but that it does not need to be a classic or formal fiduciary relationship, but one of comparable loyalty, trust and confidence, the material breach of which, with the intent to defraud, deprives the victim of the intangible right to honest services (bribe and kickback situations). (2) The foreseeable risk of economic harm is not required when evaluating a breach of honest services fiduciary duty, but instead the test of fraudulent intent and materiality.

Lastly, and case specific, (3), the superseding indictment properly states an offense of honest services fraud. Concurring, Clifton feels that the 9th does not have to spell out all the permutations of what is a fiduciary duty, but leave it as a trust relationship.

Latest in Sexual Abuse Cases

Randall J. Craig — Sat, 02 Apr 2011 19:17:00 GMT

US vs. Fasthorse, No. 10-30093 (4-1-11)(M. Smith with Graeber and Fisher). The defendant appeals a conviction for sexual abuse under 18 USC 2242(2)(B). The defendant argues there is insufficient evidence and the sentence of 130 months is unreasonable. The 9th affirms both conviction and sentence. The victim in the case admits drinking and smoking medical marijuana during the night. When she woke up, she testified, the defendant was on top of her, having sex. The defendant argued consent. The evidence revolved around credibility, and the jury found the victim credible. "Waking up," reasoned the 9th, implies no consent. The sentence was within the guidelines, and the court supported the sentence with appropriate reasons.

Immigration

Randall J. Craig — Thu, 31 Mar 2011 17:20:00 GMT

US vs. Bonilla, No. 09-10307 (3-11-11)(Reinhardt with Berzon and Pollak, Sr. D.J., E.D. Pa). In Padilla, the Supremes made clear that the defendant must be advised of the immigration consequences to a guilty plea.

Here, the defendant, a legal resident who had been in the country thirty years, faced a count of possessing an unregistered firearm and being a felon in possession. He had mental issues, and so his wife (a US citizen) frequently spoke for him. he asked his lawyer what the immigration consequences were, and she said probably deportation. After he pled straight up, he learned that he was facing certain deportation for agg felonies. He then moved to withdraw his guilty plea. the district court denied the plea, stating that he knew there would be some consequences. On appeal, the 9th reversed and remanded. The 9th stressed that the standard for moving to withdraw was a "fair and just" reason, which was to be liberally construed. Here, the defendant and his wife inquired about the consequences before the plea, and were not told of the dire consequences; it was only afterwards that the full extent of the consequences of the guilty plea came through. Moreover, the defendant plead straight up, and so did not receive some great benefit in accepting a plea. The fact that court felt that the defendant would have pled guilty anyway doesn't cut it.

Padilla is clear that the real consequences of the plea must be disclosed.

Although the lawyer failed to get him the information, believing he was a citizen, the lawyer did come through afterwards and admitted a mistake.

Sex Offenses

Randall J. Craig — Wed, 30 Mar 2011 20:38:00 GMT

US vs. Fernandes, No. 09-30135 (3-14-11)(Per curiam with Thomas, Graber, and Tallman). Must a court order a defendant convicted of abusive sexual contact under 18 USC 2244(b) to register as a sex offender? The defendant here worked as a security officer at a national park when he fondled and groped an intoxicated female employee in her room without her permission. The court sentenced the defendant to probation, but refused to require registration. The court explained felt that there was no need for registration as the defendant had no priors, and would be unlikely to repeat such an offense. It doesn't matter, explains the 9th, which reverses and amends with instructions to put registration as a condition.

Under the statutes, the defendant was convicted of a sexual offense, he is defined as a sexual offender, and so he must register. There is no discretion afforded. The defendant's arguments about discretion under Booker and parsimony do not trump a congressional mandate. The constitutional challenge is also denied.

Update in Death Penalty Cases

Randall J. Craig — Tue, 29 Mar 2011 21:58:00 GMT

WASHINGTON (AFP) The US Supreme Court on Monday rejected a final appeal request from high-profile death row inmate Troy Davis, who was seeking a new trial after witnesses recanted their testimony against him. The Supreme Court denied the request for an appeal hearing submitted by lawyers on behalf of Davis, a 42-year-old convicted of murdering a police officer in the southern state of Georgia ...

Latest in Brady

Randall J. Craig — Sun, 27 Mar 2011 17:37:00 GMT

US vs. Kohring, No. 08-30170 (3-11-11)(Thomas with Tashima, partial concurrence and partial dissent by B. Fletcher). The defendant here was a former state representative charged and convicted of public corruption as part of the undercover operation that also involved Senator Ted Stevens.

Stevens had his charges dismissed because of the gov't's withholding of Brady and Giglio evidence. While this case was on appeal, and the Stevens mess came out, the gov't disclosed information, and suggested that the case be remanded for the Brady. The 9th remanded for the district court to see if there was a Brady violation, and whether it was prejudicial. The district court found in fact that Brady was withheld, but considered it immaterial because it didn't go to the actual bribery. On appeal, the 9th reversed and remanded for a new trial. The 9th noted that the Brady information went to the character of the chief cooperating witness (Allen), his motives, bias, ability to remember, truthfulness, and there was also evidence that exculpated the defendant. The 9th wrote a treatise on how this evidence could (and should) be used. B. Fletcher concurred, and only dissented because she thought the withholding was flagrant and intentional, and she would dismiss with prejudice.

Latest immigration news

Randall J. Craig — Sun, 27 Mar 2011 17:35:00 GMT

Padilla is clear that the real consequences of the plea must be disclosed.

Although the lawyer failed to get him the information, believing he was a citizen, the lawyer did come through afterwards and admitted a mistake.