The Criminal Docket


December 2005

Volume 1, Number 1

In This Issue:

     United States Supreme Court Decisions
United States Supreme Court Reviews Granted
     United States Court of Appeals (9th Circuit) Decisions

United State Supreme Court Decisions
     Eberhart v. United States (decision) 
     Davis v. Washington (review granted)     
     Hammon v. Indiana (review granted)
     Moises Sanchez-Llamas v. Oregon (review granted)
     Mario A. Bustillo v. Johnson (review granted)
     Salim A. Hamdan v. Rumsfeld (review granted)

Eberhart v. United States, No. 04-9949 (S.Ct.) (10/31/05) (per curiam).  New Trial Motions.  The Supreme Court held that the government's failure to raise in the district court a timeliness challenge to a Rule 33 motion for new trial constituted a forfeiture such that the government could not raise it for the first time on appeal.  Specifically, the Court reversed the Seventh Circuit's determination that Rule 33's 7-day time limit is "jurisdictional" and therefore could be raised at any time (note that the 9th Circuit has similarly called this and similar time limits "jurisdictional").  The Court held that the rule is instead simply "an inflexible claim-processing rule," which does mean, however, that if the time limit is properly invoked, the district court must observe it.  The same rationale would presumably apply to the time limits for other rules too (e.g., Rule 29, Rule 35).
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Review Granted: 
The Supreme Court has granted review in several cases of interest to criminal practitioners.

Two of the cases raise Crawford issues. 
In Davis v. Washington, No. 05-5224, the question is whether a victim's statements to a 911 operator naming her assailant, admitted as "excited utterances" under a hearsay exception, constitute testimonial statements subject to the requirements of the Confrontation Clause as announced in Crawford.  The opinion below, from the Washington Supreme Court, is reported at 111 P.3d 844 (Wash. 2005).
In Hammon v. Indiana, No. 05-5705, the question is whether an oral accusation made to an investigating officer at the scene of an alleged crime is a testimonial statement within the meaning of Crawford.  The opinion below, from the Indiana Supreme Court, is reported at 829 N.E. 2d 444 (Ind. 2005).

Two of the cases involve the Vienna Convention on Consular Relations, April 24, 1963, 21 U.S.T. 77. 
Moises Sanchez-Llamas v. Oregon, No. 04-10566, and Mario A. Bustillo v. Johnson, No. 05-51, were consolidated for argument.  The questions presented in No. 04-10566 are, (1) whether the Vienna Convention conveys individual rights of consular notification and access to a foreign detainee enforceable in the courts of the United States, and (2) whether the state's failure to notify a foreign detainee of his rights under the Vienna Convention results in the suppression of his statements to police.  The question presented in No. 05-51 is whether state courts, contrary to the interpretation by the International Court of Justice of the Vienna Convention, may refuse to consider violations of Article 36 of that treaty because of procedural bar or because the treaty does not create individually enforceable rights.

In addition, the Court granted review in an enemy combatant case, Salim A. Hamdan v. Rumsfeld, No. 05-184.  The case is from the D.C. Circuit, reported at 415 F.3d 33.  At issue are six questions:
(1) whether courts should abstain from interfering with ongoing military commission proceedings;
(2) whether the President has the authority to establish military commissions;
(3) whether the Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, creates judicially enforceable rights;
(4) whether courts may disregard the President's determination as Commander in Chief that al Qaeda combatants are not covered by the Geneva Convention;
(5) whether petitioner has a colorable claim of prisoner-of-war status under the Geneva Convention;
(6) whether the federal regulations governing military commissions must conform to the provisions in the Uniform Code of Military Justice that apply only to courts-martial.

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U.S. Court of Appeals (9th Circuit):
     Daniels v. Woodford
     Miranda v. City of Cornelius
     U.S. v. Daniel Luis Delaney
     U.S. v. Abel Ike Ruiz
     U.S. v. Allen
     U.S. v. Howard
     U.S. v. Jensen
     U.S. v. Resendiz-Ponce
     U.S. v. Bergeson
     U.S. v. Omer
     US v. Schneider

Daniels v. Woodford, Nos. 02-99002, 02-99003 (11/2/05) (C.D. Cal.) (Pregerson, with B. Fletcher and Ferguson).  Sixth Amendment Issues; Ineffective Assistance; Pretrial Publicity. The 9th Circuit held that a state habeas petition in a capital case should have been granted as to both the guilt phase and the penalty phase based on several different errors.  The court found an irreconcilable conflict between the defendant and his counsel resulting in a constructive denial of counsel where the defendant mistrusted and therefore refused to communicate with his appointed counsel.  The court found the mistrust understandable based on the trial court's mishandling of previous substitutions of counsel and its decision to appoint a former prosecutor to represent the defendant.  (The court did note that the defendant's paranoia led him "particularly to distrust a lawyer who had spent most of his career as a prosecutor" (emphasis added).  The circuit also found the trial court's inquiry inadequate because the judge never questioned the defendant or his attorneys or allowed the defendant to call witnesses.  The court also found ineffective assistance based on counsel's failure to resolve the communication conflict and failure to investigate and present mitigating evidence regarding the defendant's mental health and found the errors to be prejudicial in both the guilt and penalty phases. The court also held that the trial court's denial of the defendant's motion for change of venue violated his due process rights because of extensive media coverage of this Riverside case involving the shootings of two police officers. Finally, the court held that the trial court erred in failing to instruct the jury not to "double-count" the multiple-murder special circumstance by applying it to each officer.
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U.S. v. Daniel Luis Delaney, No 04-50128 (11/7/05), (C.D. Cal.) (Pregerson with Hug, Clifton).  Sentencing: Categorical Approach, Sentencing: Career Offender.  The 9th Circuit affirmed the district court's career offender determination.  The court first applied the categorical approach and held that the defendant's California conviction for possession of a short-barreled shotgun constituted a crime of violence because of the inherently dangerous nature of sawed-off shotguns, expanding (ever-so-slightly) on United States v. Hayes, 7 F.3d 144 (9th Cir. 1993), in which the court had held that possession of an unregistered sawed-off  shotgun was a crime of violence.  The court also held that there was no Sixth Amendment violation in basing the enhancement on the two prior convictions even though those convictions were not proven beyond a reasonable doubt to a jury, noting that "the Supreme Court has made clear that the fact of a prior conviction need not be proved to a jury beyond a reasonable doubt or admitted by the defendant to satisfy the Sixth Amendment even when such a finding results in an increase in the penalty beyond what would otherwise be the maximum prescribed sentence." The court, however, did order a limited remand pursuant to Ameline.
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U.S. v. Abel Ike Ruiz, No 04-30516 (11/7/05) (D. Ore.)(Gould with Fisher and Bea).  Search/Seizure: Consent.  The circuit affirmed the denial of a suppression motion, finding that a third party had apparent authority to consent to a search.  Police officers went to a trailer in search of a parolee. The parolee's uncle answered the door, said the parolee was not there, said that he (the uncle) had lived there for about a year, and consented to a search of the trailer to ensure the parolee was not there.  Once inside, the officers discovered the defendant sleeping in the back and a gun case in the living room.  The uncle consented to the search of the gun case, though he disclaimed knowledge of what was inside.  The circuit concluded that the officers could objectively reasonably believe that the uncle had authority to consent in light of the uncle's long-term residence in the trailer, the fact that the gun case was in plain view in the living room, and the fact that the uncle, though disclaiming knowledge of the contents, did not disclaim ownership or access to the case.
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United States v. Allen, No. 04-50205 (10/18/05) (Rawlinson, with Canby and Kozinski).  Hearsay - Crawford Issues; Sufficiency of Evidence - Bank Robberies, Conspiracy; Mistrial; Booker - Ameline Remand.  The court affirmed the defendant's convictions for conspiracy, armed bank robbery, and 924(c).  The court rejected the defendant's Crawford challenge to the admission of co-conspirator statements because it concluded the statements were not testimonial.  The court also found sufficient evidence to support the defendant's 924(c) conviction where he was present for a "morning of" meeting where guns were present and their use was discussed, he had  longstanding friendship with a co-conspirator who had participated in previous armed robberies, and it was reasonable to infer from the nature of the planned robbery (a takeover) that guns would be used.  The court also upheld the denial of a mistrial when a cooperating witness referred to the defendant's previous incarceration during cross-examination because the court immediately gave a curative instruction and there was overwhelming evidence of the defendant's guilt. The court also remanded for resentencing based on Booker. Because the sentencing judge (Rea) was no longer available, the court held that the case had to be remanded for resentencing and not just for an Ameline remand.
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United States v. Jensen, No. 04-30094 (10/6/05) (D. Mont.) (Bea, with O'Scannlain and McKeown). Search/Seizure - Collective Knowledge; Sentencing - Enhancements; 21 U.S.C. 851. The 9th Circuit affirmed the denial of a motion to suppress in which the defendant claimed that police officers lacked probable cause to arrest him and seize his car.  Applying the "collective knowledge doctrine," the circuit concluded that the totality of the circumstances at the time of the arrest included not only the arresting officer's knowledge of Jensen's "drug-running activities," but also the information previously collected by task force members from the informants that was part of the later-filed affidavit to support the warrant.   The court also held that the police could impound Jensen's car either because they had probable cause to believe it contained illegal drugs, or under the "community caretaker doctrine" under which police may remove any vehicle that may impede traffic, threaten public safety, or be subject to vandalism.  The court also rejected Jensen's arguments that the sentence enhancement scheme of 21 U.S.C. 851 violates the separation of powers doctrine, due process, or the Eighth Amendment.
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United States v. Resendiz-Ponce, No. 04-10302 (10/11/05) (D. Az.) (Goodwin with Rawlinson; Reavley (5th Cir.), concurring).  Illegal Reentry - 8 USC 1326.  The 9th Circuit reversed a 1326 conviction based on an insufficient indictment.  The defendant was charged with attempted reentry in an indictment tracking the language of the statute; i.e., he was charged with attempting to reenter at a particular location on a particular date, but without alleging a specific overt act.  Because an attempt requires an overt act that was a substantial step toward reentering, the court held that such an overt act was an essential element of the offense that needed to be alleged in the indictment.  The court rejected the government's argument that given a fair reading, the indictment language together with the defendant's physical presence, implicitly alleges the overt act of crossing the border.  The court went on to hold that failure to allege an element is a fatal flaw not subject to harmless error analysis. Note that in a footnote, the court stated that an overt act is not required when the "found in" prong is used.  Judge Reavley concurred because of this circuit's precedent.
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United States v. Bergeson, No. 04-35312 (10/13/05) (Kleinfeld, with Ferguson and Trott).  Subpoenas - Motion to Quash.  Rejecting a government appeal, the 9th Circuit affirmed the district court's granting of a motion to quash a grand jury subpoena to the target's lawyer.  After indictment on drug charges, the defendant jumped bail and failed to appear for trial.  The government sought to subpoena the defendant's lawyer to testify before the grand jury that she had informed the defendant of the trial date.  The 9th Circuit held that it was within the district court's discretion to quash the subpoena as unreasonable or oppressive under Rule 17(c)(2).  Although noting that a subpoena to a lawyer to testify against her client would not always be unreasonable or oppressive and that the analysis must be case-by-case, the court held that it was reasonable to so find here where the government had other evidence to establish the defendant's knowledge of the trial date and the testimony would likely destroy the attorney-client relationship in the underlying case.
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United States v. Omer, No. 03-30513 (10/31/05) (Hawkins, Thomas, and McKeown; Graber dissenting) (order).  Indictment -- Defects.  The Ninth Circuit denied the government's request for rehearing en banc.  In this case, the panel had decided that the materiality of the scheme to defraud is an essential element of bank fraud that the government was required to allege in the indictment, and that if the defendant objected pretrial to its omission from the indictment, reversal is automatic (i.e., there's no harmless error analysis).  The panel relied on United States v. Du Bo, 186 F.3d 1177, 1179 (9th Cir. 1999), for the proposition that "if properly challenged prior to trial, an indictment's complete failure to recite an essential element of the charged offense is not a minor or technical flaw subject to harmless error analysis, but a fatal flaw requiring dismissal of the indictment."  The government petitioned for rehearing arguing that harmless-error analysis should apply, and that Du Bo was no longer good law in light of subsequent Supreme Court precedent. Six judges dissented from the denial of rehearing en banc.  Writing for the dissenters, Judge Graber agreed with the government that Du Bo has been eclipsed by Supreme Court precedent, namely United States v. Cotton, 535 U.S. 625 (2002), holding that an indictment containing the essential elements of the offense is not a jurisdictional prerequisite to a criminal prosecution.  She also noted that the panel opinion is in conflict with other Supreme Court and Ninth Circuit precedent, as well as six other circuits that have abandoned Du Bo-like precedents in favor of harmless-error review of grand jury omissions.
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US v. Schneider , No. 03-30527 (11-18-05).  On the surface, this looks like a standard Ameline remand.  The defendant got a 10 month sentence for theft of gov't funds, with an adjustment for the amount.  Thus, it goes back for a resentencing.  What is unusual about it is detailed in the concurrence of Judge Ferguson, who takes the district court to task for misapplying the guidelines in failing to depart and for failing to give acceptance.  the defendant, a former Marine, suffered from a long-term mental illness of bipolar mania and schizophrenia.  He had been hospitalized several times and has been on disability.  he was hired by the SSA as a teleservices rep (!), the same agency that provided him with SSA. He failed to report that he earned to much for SSA, hence the prosecution. At a resentencing, the court denied a diminished capacity departure. Ferguson said the court only considered the cognitive prong of 5K2.13 and not the volitional prong.  "Some" degree of diminishment was required, not a particular degree.  Ferguson also said that the court inappropriately used the defendant's demeanor in assessing acceptance, and conflated the requirements for the adjustment.  Ferguson was clearly unhappy with the district court .
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United States. v. Howard, et al, No. 03-50524 (11/15/05) (C.D. Cal.) (Schroeder with Gould; dissent Clifton).  Shackling; Mootness; Appeals: Interlocutory. In a large set of consolidated cases, the 9th Circuit today vacated our district's policy of shackling all in-custody defendants during initial appearances.  In April 2003, the Marshals, in consultation with the magistrate judges, enacted the shackling policy based on determinations that it was not possible to conduct an individualized analysis of each defendant and that the policy was necessary to ensure safety and order in the courtroom, especially in light of staffing shortages in the Marshals Service.  The magistrate judges and ultimately the district court rejected the Federal Public Defender's repeated challenges to the policy. The 9th Circuit first rejected our mootness argument, holding that the shackling issue is capable of repetition yet evading review because, even though the situation would not likely be repeated as to any particular defendant, the defendants were challenging an ongoing government policy that would affect other defendants in future cases.  The court also found appellate jurisdiction, notwithstanding the absence of a final judgment, based on the collateral order doctrine. On the merits, the majority held that "due process requires that before there is any district-wide policy affecting all incarcerated defendants whom the government must transport to a first appearance, there must be some justification."  The court found that the record failed to establish adequate justification for the blanket policy, noting that there was no evidence of similar policies in other districts and no evidence of specific instances that show a need for such a policy in the Central District.  The majority noted, however, that "[t]here may well be good reasons for the policy, but we don't yet know what they are" and that it "did not preclude reinstatement of a similar policy upon a showing of adequate justification."  Judge Clifton dissented as to the merits.  He would have found that due process was not implicated because the leg restraints did not constitute punishment and did not cause defendants to suffer any actual harm, and he would have deferred to the judgment of the magistrate and district judges that the shackling was necessary for courtroom safety.
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Miranda v. City of Cornelius, No 04-35940 (11/17/05) (D. Ore.) (Gould with Fisher, Bea). Search/Seizure: Impound. In this 1983 action, the court held that an impoundment of a vehicle constituted an unreasonable seizure because it did not satisfy the community caretaking doctrine. Under that doctrine, police may impound vehicles that "jeopardize public safety and the efficient movement of vehicular traffic." Here, the Mirandas' car was parked in their driveway, and the only justification for the impoundment was that the officer had probable cause to believe that Mr. Miranda had driven the car without a license.
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