The Criminal Docket


 December 2010                            Criminal Docket Archive

Volume III, Number 13   

Ninth Circuit Reports

October 4, 2010
October 6, 2010
October 20, 2010 

October 22, 2010 
October 25, 2010 
October 26, 2010 
October 29, 2010 

October 4, 2010
United States v. Flores-Blanco, Case No. 09-50040 (S.D. Cal. Oct. 4, 2010)

Issues: Assertion of Fifth Amendment privilege by co-defendant exculpatory witness after his guilty plea, use immunity, admission of evidence pursuant to Federal Rule of Evidence 404(b), and sufficiency of the evidence to prove aiding and abetting violation of 8 U.S.C. § 1324(a)(2)(B)(ii) (bringing unauthorized alien into United States for financial gain) and conspiracy to bring alien into United States.

Facts: Defendant and co-defendant helped smuggle individuals from Mexico to the United States. The evidence at trial showed that defendant and co-defendant waited near the border, looked toward the border for several hours, and talked on their cell phones. Eventually, the co-defendant said while talking on his cell phone, "We're ready. Now, now." Defendant then walked to the border and signaled someone on the Mexico side, but fled after he saw a border patrol agent. Someone from Mexico then jumped over the border fence. The codefendant pleaded guilty, and his testimony would have exculpated defendant, but he asserted his rights under the Fifth Amendment. The district court refused to compel the government to grant him use immunity. At trial, the district court admitted evidence of defendant's involvement in alien smuggling two years before the charged offenses.

Holding: The district court did not err in refusing to compel the government to grant use immunity because defendant did not establish that: (1) the government intentionally caused codefendant to invoke his rights under the Fifth Amendment, or (2) the government granted immunity to government witnesses but denied it to witnesses whose testimony would have directly contradicted that of the government's witnesses. The district court did not plainly err by allowing co-defendant to assert his rights under the Fifth Amendment without: (1) inquiring into the reasons (since the danger of injurious disclosure was evidence), (2) further inquiry into the scope of the assertion, or (3) subjecting co-defendant to specific questions. Finally, the district court did not err in admitting evidence pursuant to Federal Rule of Evidence 404(b), and the evidence was sufficient to support the verdict. 

October 6, 2010
United States v. Garcia-Jimenez, Case No. 09-50304 (C.D. Cal. Oct. 6, 2010)

Issues: Defendant pleaded guilty to one count of being an alien found in the United States after deportation, in violation of 8 U.S.C. § 1326(a)(2). On appeal, defendant argued that the district court erred in: (1) imposing a two-level enhancement under U.S.S.G. § 4A1.1(d), which requires additional points "if the defendant committed the instant offense while under any criminal justice sentence, including . . . parole," and (2) adding one criminal history point under U.S.S.G. § 4A1.1(e), which requires additional points "if the defendant committed the instant offense less than two years after release from imprisonment on a sentence that counted under [U.S.S.G. § 4A1.1](a)."

Facts: Defendant was convicted in the California Superior Court in and for the County of Los Angeles on December 11, 2001 for second-degree robbery in violation of California Penal Code § 211. Defendant was sentenced to three years' imprisonment and was paroled on June 29, 2004. Defendant was deported on that same day and subsequently returned to the United States. Defendant was apprehended and sent back to custody on December 23, 2005 for violation of parole. He was then paroled again on June 20, 2006 and deported that same day. Defendant subsequently returned to the United States, and on December 3, 2006, he was arrested for firstdegree burglary in violation of California Penal Code § 459. On April 20, 2007, defendant was returned to custody for violating his parole, and he was paroled again on August 4, 2007, though he was not deported. Defendant was arraigned on the burglary charge on August 14, 2008, but the case was dismissed on August 28, 2007. On November 5, 2007, defendant began working at "Homeboy Industries" in Los Angeles, but he was arrested on January 15, 2008. On June 19, 2008, defendant was returned to custody for a parole violation relating to the original robbery charge, but he was discharged on June 28, 2008, because the statutory maximum on that charge had been reached. Then, defendant was arrested, and on April 6, 2009, he was transferred to the custody of the U.S. Department of Homeland Security, Immigration and Customs Enforcement. On May 9, 2009, the government charged defendant with being an alien unlawfully found within the United States following deportation, in violation of 8 U.S.C. § 1326(a) and (b)(2).

Holding: The Court held that section 1326 is a continuing offense and that the district court did not err in finding that the government had proved by a preponderance of the evidence that defendant was present from the date of his illegal entry to his discovery, namely evidence that defendant was present for large portions of the time between his entry and discovery, as well as evidence showing that defendant had no reason to leave and instead had reasons to remain. Therefore, defendant committed the instant Section 1326 offense from the earliest date the evidence proved his presence in the United States, and since he was on parole on that date, the district court correctly increased his guidelines range pursuant to U.S.S.G. 4A1.1(d) because he committed the instant offense while "under any criminal justice sentence, including . . . parole[.]" The Court also held that imprisonment following parole violations counts for purpose of determining the date of defendant's "release from imprisonment" under U.S.S.G. § 4A1.1(e). Therefore, the district court correctly counted defendant's imprisonments for parole violations following his initial release on parole from his sentence for robbery for the purpose of determining when defendant was released from imprisonment on his sentence for robbery and, accordingly, correctly increased his base offense level pursuant to section 4A1.1(e).

October 20, 2010
United States v. Mitchell, Case No. 08-50429 (C.D. Cal. Oct. 20, 2010)

Issues: Prior convictions for purposes of status as a career offender under the United States Sentencing Guidelines, district court's discretion to depart downward based on crack/powder cocaine disparity.

Facts: Defendant pleaded guilty to a single count information charging him with
distributing a mixture containing 52.4 grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(III), resulting in a ten-year mandatory minimum sentence. The district court concluded that defendant was a career offender for purposes of the United States Sentencing Guidelines, resulting in a sentencing range of 262 to 327 months imprisonment. However, the district court departed downward 43 months on the basis of the crack/powder cocaine disparity and credited him for 39 months served in state custody. The district court sentenced defendant to 180 months imprisonment. The Ninth Circuit considered whether the district court properly classified defendant as a career offender and whether the district court had discretion to consider the crack/powder cocaine disparity at sentencing.

Holding: The district court property classified defendant as a career offender because possession of a weapon in jail is crime of violence, and possession of cocaine for sale is a controlled-substance crime. The Ninth Circuit did not resolve the question whether first-degree burglary in violation of California Penal Code § 459 qualifies as predicate crime, recognizing that the en banc court had decided to examine that issue. See United States v. Aguila-Montes, 594 F.3d 1080 (9th Cir. 2010). The Ninth Circuit also held that even when a defendant is sentenced as a career offender, district court may depart downward based on disparity between treatment of crack cocaine and powder cocaine in the guidelines. The district court is at liberty to reject any guideline on policy grounds but must act reasonably in doing so.

Concurrence: Judge O'Scannlain noted that a "closer review" may be in order when the district court varies from guidelines range in mine-run case, but that the Court has not yet defined nature of "closer review." 

October 22, 2010
United States v. Berry, Case No. 08-35002 (E.D. Wash. Oct. 22, 2010)

Issues: Relief under 28 U.S.C. § 2255 for newly discovered evidence and due process violations.

Facts: Almost ten years after he was convicted of two bank robberies, three bombings, and other offenses, defendant filed a petition under 28 U.S.C. § 2255 seeking a new trial based on newly discovered evidence. The newly discovered evidence consisted of: (1) evidence that a witness against defendant later had admitted that she had given false testimony in another case, and (2) evidence that the FBI had discontinued the use of CABL tests, which had been admitted against defendant to show that the buckshot he possessed was from the same source as the buckshot used in a pipe bombing of which he was convicted. Defendant also raised a due process violation in that the CABL evidence used at trial was so arbitrary so as to render his trial fundamentally unfair. Because defendant's motion sought a new trial, the district court treated it as a motion under Federal Rule of Criminal Procedure 33, following United States v. Jackson, 209 F.3d 1103 (9th Cir. 2000) (holding that a motion under section 2255 that presents evidentiary issues should be treated as Rule 33 motion). As a Rule 33 motion, defendant's motion was barred by the three-year time limit in Rule 33, but because this issue was not raised by the parties, the district court denied the motion on its merits. The district court recognized that the motion was timely under section 2255, per section 2255(f)(4) (providing that motion must be filed within one year of date when facts supporting claim were or could have been with due diligence discovered).

Holding: A section 2255 motion raising evidentiary issues should be treated as a motion for new trial under Rule 33, unless it is time-barred by Rule 33. If the government fails to assert untimeliness under Rule 33, the government waives the argument. On the merits, however, the district court correctly rejected defendant's argument that he is entitled to a new trial. Section 2255 may not be used as a chance at a second appeal. "Short of proof of actual innocence, claims solely based on new evidence are generally not cognizable on habeas." Newly discovered evidence merely relevant to guilt is not a ground for habeas relief. Thus, defendant's claim that newly discovered undermined weight of evidence against him was not cognizable under section 2255. The Ninth Circuit recognized that defendant's due process claim based on the use of the CABL evidence was cognizable. In order to prevail on an asserted due process violation arising from evidence used against a defendant at trial, a defendant must establish that the evidence was so arbitrary that the fact-finder and the adversary system were not competent to uncover, recognize, and take due account of its shortcomings. Admission of evidence of questionable probative value does not violate due process if the normal adversary process would expose its flaws. Use of the CABL evidence against defendant did not violate due process because the studies suggesting it should not be used as "stand alone" evidence did not establish that it is so fundamentally unreliable that its use at defendant's trial violated due process.

October 25, 2010
United States v. Redlightning, Case No. 09-30122 (W.D. Wash. Oct. 25, 2010)

Issues: Custodial interrogation, prompt presentment, expert testimony, Federal Rule of Evidence 413, jury instructions, and prosecutorial misconduct.

Facts: In August 1987, the body of an unclothed woman was discovered in a river on an Indian reservation in Washington. Eighteen years later, Redlightning's partner's daughter implicated him. Redlightning, a 37-year old Vietnam War veteran at the time of the murder, had developed PTSD, diabetes, and was blind in one eye. Moreover, in 1990, he confessed to and was convicted of sexually abusing another woman. When contacted at home, defendant agreed to accompany the agents to the FBI's office. During questioning by a single officer, defendant denied that he was involved in the murder. He then agreed to take a polygraph. In response to the fifth question about whether he had sexually assaulted and murdered the victim, defendant said "yes." The FBI agent stopped the polygraph but continued the interview, and defendant ultimately signed a confession that included details of the murder, including that he had met the victim in a bar and had killed her after she refused to stop asking him questions about the Vietnam War. After the interview, the FBI agents drove defendant to his house to get his medicine, and then booked him to hold overnight. While being transported to the arraignment the next day, following the advice of the federal prosecutor, the FBI detoured back to their office and got a second confession. Defendant was arraigned at 2:30 p.m. that second day. At trial, defendant filed a motion to suppress his confessions, which was denied. At trial, the district court denied his request to introduce testimony from an expert on the "phenomenon of false confessions," and limited the testimony of his neuropsychologist to whether his medical conditions made him susceptible to giving a false confession.

Holding: The Ninth Circuit held defendant was not in custody during the initial questioning at the FBI office, and that nothing occurred before the point when defendant confessed that transformed the interview setting into custodial interrogation. The fact that defendant submitted to a polygraph exam, that the FBI never told defendant he was free to leave, and that the agents read him his Miranda rights did not change the calculus. Under the totality of the circumstances, a reasonable person would have felt free to end the interview. Because this initial confession was not the fruit of an unlawful arrest and because it provided probable cause for an arrest, the confession he gave the next day was likewise admissible. The Ninth Circuit also held that the government was not required to present defendant to a magistrate judge on the day he first confessed because it was reasonable to finish the interview, and because the drive to Seattle would have taken too long. In any event, the government was entitled to a six-hour safe harbor period under 18 U.S.C. 3501(c), and the interview on the first day ended within that six-hour window. Under Corley v. United States, 129 S. Ct. 1558 (2009), the six-hour safe harbor may be extended if the delay was reasonable considering the means of transportation and the distance to be traveled to the nearest available magistrate. It was reasonable and even "humane" for the officers to retrieve defendant's medication after the interview was over, and because no magistrate judge was then available, it was reasonable to have him booked and held overnight until 2:30 p.m. the next day when the magistrate judge was next available. Because the delay until the next day was reasonable, and because defendant was delivered before 2:30 p.m., the confession he made en route – although beyond the six-hour safe harbor – "did not run afoul of the prompt-presentment requirement." The Ninth Circuit held that the district court did not abuse its discretion in excluding the expert testimony regarding the "phenomenon of false confessions" after the expert himself revealed during the pretrial Daubert hearing that there was nothing in the record to support that the interrogation techniques used in this case would cause a defendant falsely to confess. That the expert learned from defense counsel that defendant claimed he was promised leniency if he confessed is an insufficient "factual" foundation even under Federal Rule of Evidence 703. Moreover, the Court faulted the defense for raising facts it claimed supplied the missing foundation for the first time on appeal, particularly where when the district court had granted the government's motion in limine only provisionally. The district court also did not abuse its discretion in excluding non-physician expert testimony that defendant's vision problems, diabetes, and "baseline psychological and mental status" somehow affected his cognitive functioning at the time that he confessed, though any such error would have been harmless. The district court properly rejected defendant's challenge to the exclusion of a now-dead woman's claim made to the investigating detective in 1989 (and later recanted) that her boyfriend had committed the murder. The Court agreed that the statement lacked the necessary guarantees of trustworthiness required for admission under Federal Rule of Evidence 807. The Court also held that, under Federal Rule of Evidence 413, admission of defendant's confession to the 1990 sexual assault – where defendant raped and tried to strangle a woman after she asked him questions about the Vietnam War – was proper to show that a defendant had the propensity to commit another sexual assault. To the extent that the district court admitted this evidence to show defendant had a propensity to truthfully confess, however, it erred. The error was harmless, however, because defendant did not object to its use for that purpose or request a proper limiting instruction. Finally, the Ninth Circuit rejected defendant's challenges to Ninth Circuit Model Jury Instruction 4.1 (defendant's confession) and defendant's claim that the district court plainly erred in allowing the prosecutor to argue in rebuttal closing that "people don't confess to things they don't do." The Court noted that it is "generally true" that people do not confess to crimes that they do not commit, and in any event, "[t]he prosecutor was providing argument, not evidence" and defendant had the opportunity in his own closing to argue that because of his physical and mental condition, his confession lacked credibility.

October 26, 2010
United States v. Vela, Case No. 08-50121 (S.D. Cal. Oct. 26, 2010) 

Issues: Appellate jurisdiction, insanity, 18 U.S.C. § 111

Facts: Defendant – charged with intentionally assaulting a federal officer – asserted at trial that he was not guilty by reason of insanity. The jury found him not guilty by reason of insanity, and the district court ordered him civilly committed. Defendant then appealed, arguing (1) the indictment was deficient; (2) the district court erred in excluding his diminished capacity defense; and (3) the statute – 18 U.S.C. § 111(b) – facially violates Apprendi.

Holding: The Ninth Circuit rejected the government's argument that the appellate court lacked jurisdiction over this "acquittal." As a matter of first impression, the Court concluded that, under 28 U.S.C. § 1291, it has jurisdiction over an appeal from a "not guilty by reason of insanity" finding even though defendant has never been convicted and sentenced. Rejecting the conviction/sentence requirement for "finality," the Court concluded instead that "finality coincides with the termination of the criminal proceedings" and that when a defendant is found not guilty by reason of insanity, "the docketing of the verdict amounts to a judgment because the criminal proceeding has come to an end and no criminal sentence will follow." Because defendant raised issues "quite apart from the verdict of not guilty by reason of insanity," the Court found it "both appropriate and efficient that he be entitled to raise those issues on this appeal." However, the Ninth Circuit affirmed on the merits, as the majority found no "willfulness" mens rea requirement for a section 111 violation, and it reiterated its holding in United States v. Jim, 865 F.2d 211 (9th Cir. 1989) that assault on a federal officer is a general intent crime, meaning that the indictment was correct and that defendant was not entitled to present a diminished capacity defense. As to the alleged Apprendi problem, the panel concluded that factual prerequisites in the statute's "enhanced penalty" provision are not sentencing factors as its pre-Apprendi decisions had held, but rather are elements of the offense that must be proved to the jury. Here, the jury was instructed that it was required to find that defendant used a dangerous or deadly weapon and/or inflicted bodily injury.

Dissent: Judge N.R. Smith dissented on the jurisdictional issue, noting that the case ended in an acquittal, not a conviction and imposition of sentence, and thus defendant was not entitled to appeal the district court's adverse rulings.

McNeal v. Adams, Case No. 08-16472 (E.D. Cal. Oct. 26, 2010) 

Issue: Right to counsel

Facts: Defendant claimed that he was deprived of counsel during a critical stage of the proceedings – i.e., during a hearing on a motion to compel production of a DNA sample – and thus his conviction for sexually assaulting his girlfriend's minor daughter that relied on DNA evidence should be vacated.

Holding: After determining that defendant had exhausted his rights in state court, the panel affirmed the district court's determination that the state court decisions were not contrary to clearly established federal law because the Supreme Court has never held that a hearing on a motion to compel a DNA sample is a critical stage of the proceeding. Moreover, the state court decisions were not an unreasonable application of federal law because the hearing itself did not involve "significant consequences" given that defense counsel was aware of the proceeding and could have objected to DNA sample before it was taken, or certainly to its admissibility at trial. Joining the Eighth Circuit, the panel held that, as with the taking of handwriting samples, fingerprints or blood samples, a defendant does have the right to counsel before the taking of a DNA sample.

Concurrence: Judge Berzon concurred in the judgment, but noted that Court did not need decide whether, on the merits, the defendant had a right to counsel at this stage.

Williams v. Ryan, Case No. 10-99013 (D. Ariz. Oct. 26, 2010)

Issue: Exculpatory evidence, mitigation at the penalty phase

Facts: Defendant was convicted and sentenced to death for murdering his former girlfriend and a later robbery/attempted murder of another woman. Two years after the convictions were affirmed, the state turned over a packet of jailhouse letters written before defendant's trial which suggested that defendant did not actually commit the murder but instead paid someone else to do it. Defense counsel located the witnesses identified in the letters and submitted their declarations in district court as part of a Brady claim (the state habeas proceedings had already been completed). The district court summarily denied the claim on the merits. The district court also denied defendant's claim based on the state's refusal to provide mental health assistance at sentencing and held that the state court was correct to reject defendant's drug use as a mitigating factor at sentencing.

Holding: After finding that the Brady claim had not been procedurally defaulted, the majority concluded that an evidentiary hearing was necessary to determine whether there were witnesses who could have provided material evidence favorable to defendant at trial. The majority agreed that the letters tended to show that defendant was involved in the murder, but noted that the letters were "inconsistent" with the state's theory at trial that defendant was the only person responsible for his ex-girlfriend's murder. Moreover, the witness declarations revealed that there was another plausible suspect who, arguably, acted alone.

The majority affirmed the district court's rejection of defendant's due process claim that the state court erred in denying him mental health assistance at sentencing because it found that defendant failed to make an adequate showing that, due to his drug use, his mental state was impaired at the time of the murder, a prerequisite under Ake v. Oklahoma, 470 U.S. 68 (1985). Reaching an uncertified issue, the majority reversed the district court's conclusion that the state court was correct to reject defendant's drug use as a mitigating factor at sentencing. Specifically, it held that the Supreme Court has determined that the defendant need not show a causal nexus between the crime and his drug use before the trial court may view it as a mitigating factor in a capital case and thus the state court's decision was contrary to clearly establish federal law.

Concurrence/Dissent: Judge Ikuta dissented from the remand for an evidentiary hearing on the Brady claim. Judge Ikuta wrote that the letters were not material to the guilt phase because they did not exculpate defendant from the crime; nor did they provide impeachment material for any of the state witnesses. Judge Ikuta agreed that the letters were potentially material to the penalty phase, because the state was required to show that the defendant murdered his victim in a heinous and depraved manner to justify the death penalty. To the extent that the letters supported that defendant did not commit the murder himself, they could have been material to that determination. However, Judge Ikuta would have found that defendant waived his right to an in-person evidentiary hearing, and that, in any event, there would be no purpose to one here because the critical question was whether the prosecutor should have known that the letters were material to Williams' guilt, and not whether declarations procured by the defense well after trial were material to the determination of defendant's guilt.

October 29, 2010
United States v. Krane, Case No. 10-30247 (W.D. Wash. Oct. 29, 2010)

Issues: Appellate jurisdiction, interlocutory appeal of disclosure order by non-parties versus interlocutory appeal by parties, mootness

Facts: Intervenor-Appellant Quellos Group, LLC ("Quellos") appeals the district court's order compelling its former law firm, Skadden, Arps, Slate, Meagher, and Flom, LLP ("Skadden") to comply with a pre-trial subpoena duces tecum issued in anticipation of the criminal trial against two former Quellos executives.

Holding: The Ninth Circuit held that it had jurisdiction over non-party law firm's interlocutory appeal of disclosure order despite the lack of a final order (i.e., the district court had not found the law firm in contempt). Under the rule of Perlman v. United States, 247 U.S. 7 (1918), a discovery order directed at a disinterested third-party custodian of privileged documents is immediately appealable because the third party is presumed to lack a stake in the proceeding and thus would most likely produce the documents rather than submit to a contempt citation. The Perlman rule survived Mohawk Industries, Inc. v. Carpenter, 130 S. Ct. 599 (2009), in which the Supreme Court, in contrast, held that disclosure orders adverse to the attorney-client privilege are not subject to interlocutory review under the collateral order doctrine. Mohawk, the panel explained, forecloses appeal by a party because post-judgment appeal is sufficient to vindicate the rights of parties. Having concluded that it had jurisdiction, the Ninth Circuit dismissed the appeal on the grounds of mootness. Specifically, it held that because the defendants had pleaded guilty, the government no longer needed the documents to prove that they had engaged in fraud. It rejected the government's claim that it needed the documents for sentencing, concluding that the district was required to review that claim in the first instance.

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