The Criminal Docket


August 2006 

Volume 1, Number 6

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 
No cases this month.

United State Supreme Court Reviews Granted: 
No cases this month.

U.S. Court of Appeals (9th Circuit):

Boyd v. Newland
United States v. Staffeldt
United States v. Jernigan
United States v. Beng-Salazar
United States v. Villa-Lara
In re Mikhel
United States v. Adjani
United States v. Ballesteros-Selinger
United States v. Lyons
Edwards v. Lamarque
United States v. McWeeney
United States v. Feingold

Boyd v. Newland, No. 03-17098, June 26, 2006, (N.D. Cal.) (Graber, with Cudahy (7th Cir.) and Fisher).  Batson.  On rehearing, the panel issued an amended opinion granting habeas relief in this California case, based on a Batson violation (the previous opinion had affirmed the denial of habeas relief).  The panel noted that the Supreme Court had decided two Batson peremptory challenge cases since its original opinion -- Johnson v. California (2005) and Miller-El v. Dretke (2005)
-- and in light of those decisions, it concluded that it had incorrectly interpreted Batson originally.  "After further
consideration, we now conclude that our previous opinion misunderstood Batson and that, without an entire voir dire transcript, the California appellate courts could not have considered the circumstances surrounding the contested strike, could not have evaluated the potential inference of racial bias, and therefore could not properly have found that Petitioner failed to establish a prima facie case."  It also found that the defendant's claim was not Teague-barred (Teague established the rule that, with certain exceptions, new rules do not apply retroactively to cases on collateral review), finding that those Supreme Court cases "merely clarify Batson and do not establish new rules of criminal procedure."The panel noted the new authority holding that appellate courts can conduct a comparative juror analysis on appeal to determine whether the prosecution had been motivated by racial bias in exercising its peremptory strikes.  This includes examining percentages (comparing the number of minority prospective jurors stricken to non-minority prospective jurors stricken).  The court ruled that the indigent defendant was entitled to the entire voir dire transcript to make his claim, and California erred by denying this request. 
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United States v. Staffeldt, No. 05-10243, June 26, 2006 (D. Ariz.) (Reinhardt, with Noonan, and Hawkins).  Wiretap Issues.  The 9th Circuit has again made clear that it will not tolerate any errors in the formalities of a wiretap application.  Rejecting a government appeal, the court affirmed a wiretap suppression order.  In this case, the wiretap application had been authorized by DOJ as required by Title III.  However, the wrong DOJ memo of authorization (one for a different Pennsylvania wiretap) was attached to the wiretap application submitted to the Arizona district court.  After seeking
the first 30-day extension, the AUSA discovered the error and filed a motion to amend the original order and substitute the correct authorization memo, and the district court amended the original order and granted the extension.  After defendant was indicted, the district court granted his motion to dismiss.  On appeal, the 9th Circuit held the application to be facially insufficient because it failed to establish that the requisite authorization had been obtained.  The court also held the error to warrant suppression because DOJ authorization is a critical precondition to obtaining a wiretap.  The court distinguished authority holding that a mistake as to the authorizing official would not prompt suppression if there was evidence that DOJ had, in fact, authorized the wiretap, because here the mistake went to whether there was authorization at all.
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United States v. Jernigan, No. 05-10086, June 26, 2006, (D. Ariz.) (Thompson, with Bea; B. Fletcher, partial concurrence and partial dissent).  Brady Violation Arguments; Identification Testimony Issues; New Trial Motions.  The 9th Circuit affirmed defendant's bank robbery conviction, rejecting defendant's Brady and newly discovered evidence claims.  Defendant was convicted of committing bank robbery on September 20, 2000.  Five different people, including the teller (with whom she had lengthy contact) identified her as the bank robber.  On November 28 and 30, 2000 (about 3 weeks after the defendant was had been in custody), there were other bank robberies, and the physical description given of that robber was similar to that of the defendant (short Hispanic or Asian woman with acne).  That suspect was not apprehended until months after the defendant's trial in this case, and evidence about the November robberies was not disclosed to the defense.  The Ninth Circuit determined that there was no Brady violation because the evidence from the 5 eyewitnesses identifying the defendant as the robber in the charged crime was very strong.  Therefore, disclosure would not have created a reasonable probability of a different result at trial.  The motion for new trial under Rule 33 was also properly denied for essentially the same reason.  The district court reviewed the photographs of the defendant and the other robber, as well as the video of the charged robbery (as did the Ninth Circuit), and the two women "do not look alike."  Thus, there was no  prejudice. 

Judge Better Fletched concurred in the Rule 33 ruling but dissented on the Brady ruling.  She believed that the government had a duty to disclose the continuing robberies and that such information "very likely could have affected the verdict," particularly in light of the facts that the eyewitness testimony was uncorroborated and the witnesses may not have been properly advised that the robber might not be depicted in the photospread before making their identifications.
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United States v. Beng-Salazar, No. 04-50518 July 6, 2006 ( S. D. Cal.) (Paez, with Hall and O'Scannlain).  Booker - Ameline Remand; Booker -  Harmless Error. The court vacated and remanded for resentencing, finding preserved nonconstitutional Booker error.  Defendant was sentenced for his 1326 offense before Booker was decided.  Defendant did not directly raise a Booker claim in the district court, but he did raise Sixth Amendment challenges under Apprendi and Blakely, specifically that he should not be subject to the 16-level enhancement or an increase in his criminal history category without proof to a
 jury beyond a reasonable doubt.  He did not expressly argue that the Sentencing Guidelines were unconstitutional.  The 9th Circuit held that defendant's Sixth Amendment arguments were sufficient to preserve his claim now raised on appeal that the district court committed Booker error by applying the guidelines in a mandatory fashion.Having found the nonconstitutional Booker claim to be preserved, the court concluded that the proper remedy is not to order an Ameline
remand, but to review the Booker error for harmlessness and, if not harmless, to remand for resentencing.  The court concluded that the government had not shown that the Booker error was more likely than not harmless and therefore remanded for resentencing.  The court also rejected defendant's challenge to 1326(b) and claim that Almendarez-Torres has been overruled.
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United States v. Villa-Lara, No 05-10262 July 6, 2006 (D. Nev.) (Hug, Jr., Alarcon and McKeown).  Sentencing - Categorical Approach.  The court ordered publication of its previous unpublished disposition in this case, which can be found at 2006 WL 1307539.  The court held that defendant's conviction under Nevada Revised Statute 453.3385 does not qualify as a drug trafficking offense for purposes of the 16-level enhancement under USSG 2L1.2(b)(1)(A)(i) and therefore vacated and
 remanded for resentencing.  The court concluded that the Nevada statute criminalized a broaded range of conduct than a drug trafficking offense as defined in the guidelines.  Specifically, the statute criminalizes mere possession of certain amounts of controlled substances without proof of any trafficking intent.  The court also found that the enhancement could not be saved by the modified categorical approach because, although the Information alleged that defendant possessed "trafficking quantity" of a controlled substance, there was indication that defendant actually had drug trafficking intent.
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In re Mikhel, No. 06-73376 (7/7/06) (C.D. Cal.) (Hawkins, Thomas, and Silverman) (per curiam).  Victims' Rights; Writs - Writ of Mandamus. The CVRA requires that crime victims (which include family members of deceased victims) be permitted to attend all public proceedings unless the court finds by clear and convincing evidence that testimony by the victim would be materially altered if the victim heard other testimony.  18 U.S.C. 3771(a)(3).  Based on that provision, the government moved in the district court for an order allowing the murder victims' family members to attend the entirety of the trial.
Judge Tevrizian denied that request, instead excluding each victim from any portion of the trial involving their loved one until after the victim has testified.
The 9th Circuit reversed the district court's ruling.  While recognizing the general rule that non-party witnesses cannot listen to other witnesses' testimony, see Fed. R. Evid. 615, the court noted that there is an exception to the rule for "a person authorized by statute to be present."  The court held that the CVRA created just such an exception for crime victims.  The 9th Circuit held that the district court erred by not determining by clear and convincing evidence whether the victims' testimony would be materially altered and by not considering whether there were reasonable alternatives that
would enable the victims to attend the trial.   The court noted that the mere possibility that testimony would be altered is insufficient under the CVRA; the court must find by clear and convincing evidence that it is "highly likely" that the victim-witness will alter his or her testimony.  The court remanded to the district court to reconsider its ruling in light of this opinion and the requirements of the CVRA.
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United States v. Adjani, No. 05-50092 (7/11/06) (C.D. Cal.) (Fisher, with Schroeder and Friedman (Fed. Cir.).  Search/Seizure - Computer Searches.  In this government appeal of Judge Hatter's order suppressing evidence, the 9th Circuit held that the affidavit stated probable cause for the search of a non-target's computer, where the computer itself was located in the home of the target of an extortion plot carried out through the use of computers.  The court concluded that the affidavit established that there was "a fair probability that the contraband or evidence of a crime [would] be found in the computers at Adjani's residence" both because some of the communication was by e-mail and because the extortion related to a
computer database.  The fact that a computer located in the target's (Adjani's) house belonged to Reinhold, who was not identified as a target, did not exempt this computer from search.  The court held that searches need not be limited to property belonging to the target or suspect so long as there is probable cause to believe that the third party's property might hold evidence of a crime.  Here the affidavit set out the scheme, the use of the computers and Reinhold's involvement with Adjani.
The court also rejected the argument that the warrant was overbroad. The court found that the description of the items to be seized provided adequate specificity to restrict the discretion of the searching agents.  The description began by limiting the search to evidence of a particular crime, in this case, transmitting threatening communications with intent to commit extortion.  The warrant further limited the search to documents reflecting communications with three individuals or employees of a particular company.  The one category of documents that was general - - travel records - - the court found to be limited by both the type of document specified and a restriction as to the time period.  In one particularly sensible and helpful portion of the opinion, the court rejected the defendant's argument that the warrant should have limited the areas for search within a computer, such as restricting the search to email in and out boxes.  The opinion states that "[t]o require such a pinpoint computer search, restricting the search to an email program or to specific search terms, would likely have failed to cast a sufficiently wide net to capture the evidence sought."   The court went on to observe that "[c]omputer
files are easy to disguise or rename" and that "[t]he government should not be required to trust the suspect's self-labeling when executing a warrant."
Finally, the court rejected an argument that the three emails recovered from Reinhold's computer should be suppressed as outside the scope of the warrant.  Finding the emails within the scope of the warrant, the court then specifically rejected the argument that evidence seized during the execution of a lawful warrant must be suppressed if it is found to support charges for a related crime or another suspect not expressly mentioned within the warrant or affidavit.
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United States v. Ballesteros-Selinger, No. 05-50287, July 19, 2006, (S.D. Cal.) (Gould, with Thomas, and Schwarzer (D.J.)).  Confrontation Clause.  The circuit held that the government's introduction into evidence of a the IJ's "memorandum of oral decision" from a deportation hearing did not offend the Confrontation Clause because it was not made in anticipation of future litigation.   Moreover, the memorandum of oral decision was part of the alien's "A-file," a public record, and thus not testimonial in nature.
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United States v. Lyons, No. 04-50157, July 19, 2006 (S.D. Cal.) (Gould, with Beezer, and T.G. Nelson).  Sufficiency of Evidence - Fraud Cases; Booker - Harmless Error.  In this case, the circuit affirmed defendant Stephen Lyons's mail fraud conviction but remanded for resentencing.  As to the conviction, there was sufficient evidence that, at the request of an undercover agent, Lyons forged the signature of the late Yul Brynner on several movie posters before mailing them back to the agent with the knowledge and specific intent that they would be resold as originals.  As to the sentencing, because
defendant had preserved a Sixth Amendment challenge in the district court, the court reviewed the pre-Booker sentence for harmless error. The court determined that, even though there was overwhelming evidence that Lyons' crimes caused more than $120,000 in loss and affected more than 50 persons, the government had failed to demonstrate that the
district court would have imposed the same sentence had it known the Guidelines were advisory.   
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Edwards v. Lamarque, No. 04-55752, July 19, 2006.  The court granted rehearing en banc and vacated the panel opinion in this case.  The previous Skinny on this is attached below in this color.
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Edwards v. Lamarque, No. 04-55752 (12/12/05) (C.D. Cal.) (Fisher with B. Fletcher, dissent Rymer).  Ineffective Assistance (of counsel); Privileges: Spousal.  The court affirmed the granting of a state habeas petition based on ineffective assistance of counsel.  The majority held that defense counsel was ineffective when his questioning of the defendant's wife opened the door to further testimony regarding confidential communications.  The majority held that his conduct reflected his misunderstanding of the law regarding waiver of privileges rather than a reasonable tactical decision.  As to prejudice, the majority found prejudice, both based on its own review of the record and deferring to the state trial judge's view that without the evidence the verdict may well have been different.  Judge Rymer dissented and would have deferred to the state courts'  findings that defense counsel's conduct was a reasonable tactical decision.
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United States v. McWeeney
, No. 05-10349, July 21, 2006 (D. Nev.) (Goodwin, with Fisher; B. Fletcher (partial dissent), and Fisher). Search/Seizure - Consent.  The 9th Circuit vacated defendant's conviction and remanded for an evidentiary hearing on whether defendant's "continued" consent of the search of his car had been coerced.  First, the panel held that a request from a law enforcement officer to "look" is the same as a request to "search," and that McWeeney's general consent to search the car included the trunk.  Second, while not recognizing a constitutional right to observe the search, the panel held that McWeeney had a "constitutional right to modify or withdraw" his general consent at "anytime."  Because the
record was undeveloped on whether the officers "coerced" McWeeney into believing that he had no right to withdraw or limit his consent by ordering him (or the other occupant) to turn around and not watch the search, the panel remanded for the court to determine "whether the officers created a setting in which the reasonable person would believe that he or she had no authority to limit or withdraw their consent."
Judge Betty Fletcher dissented from the remand, noting that the record already established that the search was invalid because the uniformed officer's order not to turn around was coercive.
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United States v. Feingold, No. 05-10037, July 21, 2006 ( D. Ariz.) (B. Fletcher, with Goodwin, and Fisher).  Narcotics Statutes; Expert Testimony; Jury Instructions - Mens Rea; Sentencing - Booker; Sentencing - Safety Valve; Booker - Harmless Error.  The Ninth Circuit affirmed defendant's conviction but remanded for resentencing.  The defendant, a naturopathic physician licensed to prescribe controlled substances in Arizona, challenged the admission of expert testimony and jury instructions that he claimed permitted the jury to convict him if they found him merely to be an incompetent doctor rather than that his conduct was so egregious as to render him criminally liable. The panel rejected Feingold's claim, holding that because the jury needed to know "how doctors generally ought to act" in order to
"determine whether a practitioner has acted not as a doctor, or even as a bad doctor, but as a 'pusher,'" the evidence was properly admitted.  The court also found no error in the jury instructions where the district court properly instructed that it had to find not only that Feingold intended to distribute the drugs, but that he did so outside the usual course of professional practice.
The panel rejected Feingold's claim that resentencing was required under Booker because two enhancements were not based on facts found by the jury where, in fact, the enhancement were based on jury-found facts or Feingold's own admissions.  The court did find, however, that Feingold was improperly denied a two-level reduction under USSG
2D1.1(b)(7) because the district court erroneously believed he was ineligible because his offenses did not carry a mandatory minimum, but found the error harmless because the district court based its decision to reject the reduction on the alternative basis that Feingold had not been truthful.  Nevertheless, the court ordered resentencing under
United States v. Beng-Salazar, because Feingold had objected to the sentence on Apprendi grounds, preserving his Booker claim and entitling him to a full resentencing under the advisory Guidelines regime.  
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