U.S. v. Hinkson, No. 065-30303 (11-5-09) (en banc). The 9th, sitting en banc, recasts its "abuse of discretion" standard of review. The test for "abuse of discretion" is now as follows:

Our newly stated "abuse of discretion" test requires us first to consider whether the district court identified the correct legal standard for decision of the issue before it. Second, the test then requires us to determine whether the district court's findings of fact, and its application of those findings of fact to the correct legal standard, were illogical, implausible, or without support in inferences that may be drawn from facts in the record.

Pg. 14957.

The case arose from a prosecution to kill a federal prosecutor, agent, and judge. The key prosecution witness testified while wearing a Purple Heart medal. He lied about it. The government shrugged and said that the focus was on the fact that the defendant had believed that the witness was a Korean War vet (he was not). During trial, defense counsel moved to introduce the military records of the witness. It was unclear, at least to the court (Tallman, sitting as district judge) what the military records actually revealed. He kept out the records, and had instructed the jury to disregard the testimony about veteran status. After conviction, the defendant moved for a new trial, with new evidence that the witness had forged documents. The court denied the new trial motion, stating that the defense could have acted quicker, and that it was collateral anyway. Eventually this went en banc.

Bea, writing for the majority, delves at length into the need to clarify the "abuse of discretion" standard because there was a tension between an appellate court reversing when it formed a "definite and firm conviction that a mistake had been committed" and being denied the power to reverse if the district court's finding was "permissible." The 9th traces the definitions from Supreme Court cases, and compares the various standards for a "clearly erroneous" standard of review. The 9th upholds the preclusion of evidence and denial of new trial.

Dissenting, W. Fletcher (joined by Pregerson, Wardlaw, and Paez) argued that the trial court had abused its discretion, and that the barring of the evidence, and denial of new trial, met the new standard. The analysis is very factual, but the points made were that the witness who lied was the key prosecution witness, that he had a motive given his animosity toward the defendant, and the defense lawyer was not dilatory in his actions. The dissent used the Harrington test for the new trial analysis.

Turning back to the new test for "abuse of discretion," there is concern that this will effectively bar any review. It is true that the court has to use the correct legal standard, but the trilogy of "illogical, implausible, or without support in inferences" does seem daunting.

U.S. v. Garcia-Villalba, No. 05-30506 (11-2-09). The 9th affirms suppression of evidence gathered by a wiretap. The DEA undertook an investigation of a drug conspiracy operation in Washington state. A wiretap was sought when, according to the affidavit, other means of investigation, such as surveillence, trash, and undercover operatives, hit a dead end. Lengthy affidavits were provided. The magistrate approved the affidavit for a fourth cellphone that hit the jackpot of evidence. That is being challenged here. The district court had found no probable cause, but held that there was a good faith reliance on the warrant. The panel (O'Scannlain joined by Kleinfeld and Berzon) determined there was sufficient probable cause in the details of the investigation, the particular locations, and the house. The 9th also determined that a wiretap was necessary, and that there was not a "cascading effect" by reliance on previous wiretaps applications for the one in question.

U.S. v. Liera, No. 07-50546 (11-4-09). In an appeal from alien smuggling, the 9th (Pregerson joined by Nelson and Thompson) hold that defendant's statements should be suppressed because of the delay in getting him before a magistrate. The 9th also holds a statement made by the mother of one of the smugglees as to the cost of smuggling was not a co-conspirator statement and should be precluded. The errors were not harmless. The defendant was stopped at the Calexico point of entry at 4:15 A.M. Two aliens were found in his truck, under the hood, in hidden compartments. The defendant, in his first interview, five hours after the arrest, said that he did not know of the aliens because he had borrowed the truck because his truck had flat tires. The recording devices for the interview, and for the interviews of the material witnesses, failed to work. Ten hours after the arrest, a go-ahead was given for a second interview. During the second interview, the defendant made statements about his cellphone's numbers. One entry was for "pollos" which he acknowledged was slang for "smuggled aliens." He said though that this refered to a neighbor of his who sold chickens. This second interview happened close to 3:00 P.M., the same time that the magistrate's court in El Centro, 15 miles away, was beginning. As a result, the defendant was not arraigned until 30 hours later. The 9th found the delay was a violation of McNabb-Mallory and 3501(c). This statute provides a 6-hour safe harbor for appearances, and allows for later appearances if the delay is reasonable. The Supremes reaffirmed the reasonableness test recently in Corley v. U.S., 129 S.Ct at 1563. The delay here was unreasonable because it was not a result of a shortage of personnel, or other exigency, but a result of a conscious decision to continue an interrogation. This was not harmless given the focus of the government on these second statements and the fact that the other evidence was not overwhelming. The 9th also held that the statement by a material witness about what his mother said was the rate for being smuggled was hearsay because the mother was not a co-conspirator.

Congratulations to Steve Hubacheck of the Federal Defenders of San Diego.

Case o' The Week: Obscene in Oshkosh? Perverse in Poughkeepsie? Kilbride and the National Obscenity Standard

Federal obscenity statutes require the jury to determine whether the image at issue is "obscene" using "community standards." When there's no control over where the image is sent geographically, however, (like in a spam e-mail), what is the relevant "community" whose standards are to be used to identify "obscene" images? Even in the Ninth Circuit, there's a pretty wide range in "communities" between, say, San Francisco and San Diego, Missoula and Mill Valley. Fortunately, Judge Betty Fletcher (left) answers this question for us in a particularly thoughtful and thorough new opinion, United States v. Kilbride,__ F.3d __, No. 087-10528 , 2009 WL 3448360 (9th Cir. Oct. 28, 2009), decision available here.

Players: Decision by Judge Betty Fletcher, joined by Judges Hug and Hawkins.

Facts: Kilbride and others controlled an overseas company, “Ganymede Marketing.” Id. at *1. The company send spam into the states with sexually-explicit images and faked email headers. Id. The defendants were charged with, among other things, interstate transportation of obscene materials for sale. Id. at *2. (Ed. Note: this does not appear to involve child porn, which is (also) criminalized under separate federal statutes that carry much higher exposures).

At trial the jury instruction regarding whether the material was “obscene” did not define which “community’s standards” the jurors were to consider when reaching this determination. Id. at *4. Using the Supreme Court’s ‘74 Hamling language, the instruction allowed the juror to “simply draw on knowledge of the community or vicinage from which he comes in determining contemporary community standards.” Id. at *4 (emphasis added).

Issue(s): “Defendants assert . . . that Hamling’s prevailing definition of contemporary community standards is not appropriate for speech disseminated via email. Because persons utilizing email to distribute possibly obscene works cannot control which geographic community their works will enter, Defendants argue that applying Hamling’s definition of contemporary community standards to works distributed via email unavoidably subjects such works to the standards of the least tolerant community in the country. This, Defendants assert, unacceptably burdens First Amendment protected speech. To avoid this constitutional problem, Defendants argue, obscenity disseminated via email must be defined according to a national community standard.” Id. at *8.

Held: “[We] join Justices O’Connor and Breyer [who wrote concurring decisions in Ashcroft v. ACLU, 535 U.S. 564 (2002)] in holding that a national community standard must be applied in regulating obscene speech on the Internet, including obscenity disseminated via e-mail. . . . To avoid the need to examine the serious First Amendment problem that would otherwise exist, we construe obscenity as regulated by §§ 1462 and 1465 as defined by reference to a national community standard when disseminated via the internet.” Id. at *12 (internal quotations and citation omitted). “In light of our holding, the district court’s jury instructions defining obscenity pursuant to Hamling was error. However, this error does not require reversal because this error was far from plain.” Id.

Of Note: This long decision discusses many issues other than what is described above. Judge Fletcher considers, and rejects, a “void for vagueness” challenge brought against the anti-SPAM statute. Id. at *13. Like Judge Berzon in last week’s Van Alstyne decision, Judge Fletcher also struggles to make sense of a severely fractured, controlling, Supreme Court decision. Id. at *9-*12.

Of greatest interest, however, is the new rule (or rather, newly-distilled rule) on the relevant “community” to be used to determine “obscenity.” It is a good rule: the national community standard denies “the most puritan of communities [the] heckler’s Internet veto affecting the rest of the Nation.” Id. at *10 (quoting Justice Breyer from Ashcroft v. ACLU). Interesting to speculate on how the Kilbride rule can be expanded – maybe to the “lascivious” prong of the federal child porn definition? See 18 U.S.C. § 2256(2)(a)(v).

How to Use: Kilbride will be a seminal decision for cases involving obscenity on the internet. Note, however, that (by and large) it will not be a important decision in child pornography cases. Pornography involving real children can be prosecuted even if it is not “obscene” under the Miller test. See New York v. Ferber, 458 U.S. 747 (1982). Hence, with the possible exception of the example above, Kilbride should not be read as requiring a “national community” test for whether an image is child porn – the obscenity definition (generally) is irrelevant in (real-child) porn cases.

For Further Reading: For an interesting article on the Hon. Betty Fletcher, thankfully one of the most “active” (as in “busy,” not “activist”) Senior Judges in the Ninth, visit the Seattle Weekly here.


Image of the Hon. Betty Fletcher by Steven Miller, of the Seattle Weekly, from http://www.seattleweekly.com/photoGallery/?gallery=744151


Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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U.S. v. Kilbride, No. 07-10528 (10-28-09). Is the standard for obscenity the local community standard? Not when there is a federal statute involved, in which case the standard has to be a national one. In this case, the defendant was convicted of spam charges, obscenity charges, and money laundering. The interesting issues arise over the definition of community standards when it comes to obscenity in the context of a federal, hence national, standards. Under the Supremes precedent in Miller, Hamling, and Ashcroft, the focus need not be a specific geographical community, but can refer to a national community standard to judge Internet or e-mail obscenity. The defendant's conviction for spam was also affirmed, with the 9th finding that the statute was not unconstitutionally vague. The 9th panel was B. Fletcher, joined by Hug and Hawkins.

U.S. v. Moriel-Luna, No. 08-50124 (10-29-09). This is a 1326 case, where the defendant argues that failure to inform him of the possibility of discretionary relief under 212(c) was prejudicial. The 9th (Gould joined byTallman and Panner) had previously reversed the district court, holding that the Immigration Judge should have informed the defendant of possible relief. It was sent back to see if relief was even possible. The district court concluded it was not, and the 9th affirmed. Agreeing with the district court, the 9th found that the defendant could not have gotten a visa immediately at the time (1995), but would have had to apply earlier (1990). Moreover, the fact that the defendant could have married his then-US citizen girlfriend, or have his parents become citizens, was not enough certainty to afford him relief here.

U.S. v. Rivera-Alonzo, No. 08-10081 (10-26-09). The defendant was convicted of assault on a federal officer with a dangerous weapon. The incident arose when the defendant crossed into the United States near San Luis, Arizona. A Border Patrol Agent sought to stop the defendant. The defendant ran from the agent. The accounts then differed: the agent was either tackled by the defendant or the defendant tackled the agent. A struggle ensued, again depending on the account, with one or the other being the aggressor. The jury sided with the agent's account. On appeal, the defendant argued that he was entitled to a lesser included offense of simple assault (a misdemeanor). The 9th (N. Smith joined by Noonan and Berzon) affirmed the conviction and sentence. The 9th held that the district court did not abuse its discretion in refusing the lesser included, because a jury, in finding a lesser, necessarily would have had to find the elements of the greater. The lesser involves an assault with no physical contact. Here, the facts were such that all admitted that physical contact was made, and there was a purported struggle for the gun. The facts as they came out meant that the jury could not find for simple assault without finding physical contact. There was also no clear error in the court finding that the defendant's conduct was motivated by the victim's official status, and so received an "official victim" enhancement under the Guidelines (3A1.2).

Case o' The Week: Ninth Airs Supreme's Dirty Laundry (Money Laundry Analysis, that is): Van Alstyne

Who has the temerity to call out the Supreme Court for a fractured decision that does far more to muddy money laundering cases, than to clarify them? Judge Marsha "Calls 'em Like She Sees 'em" Berzon, in United States v. Van Alstyne,__ F.3d __, No. 07-50105, 2009 WL 3381144 (9th Cir. Oct. 22, 2009), decision available here.

Players: Important victory on complex issue for CD Cal AFPD James Locklin and Defender Sean Kennedy. Decision by Judge Berzon (right).

Facts: Val Alstyne ran a Ponzi scheme and was charged with mail fraud and money laundering. Id. at *1. Two of the three money laundering counts involved transfers from a corporation to a partnership, used to make lulling payments to investors. Id. The third was a similar transfer, used to completely refund an investor’s outlay after the scheme began to unravel. Id. at *2.

He was convicted of seven mail fraud counts and all three money laundering counts. Id. at *2. After his conviction, and before this appeal, the Supreme Court decided United States v. Santos, 128 S. Ct. 2020 (2008). Id. at *1. Santos addressed the question of which financial transactions constitute “proceeds” that are chargeable under the federal money laundering statute. Id. at *3.

Issue(s): Van Alstyne now argues that Santos requires us to reverse his money laundering conviction. Id. at *1. “Van Alstyne contends that his payments to investors were no different than those held insufficient to sustain Santos’ money laundering conviction because the payments were ‘necessary for the operation to continue.’” Id. at *3. [Because these payments were not ‘proceeds’ as defined in the money laundering statute], “Van Alstyne now argues that Santos requires us to reverse his money laundering conviction.” Id. at *1.

Held: “We hold that Santos undermines our earlier approach to determining whether funds arising from a specified illegal activity constitute ‘proceeds’ for the purposes of the money laundering statute, 18 USC § 1956, and requires a reversal of Van Alstyne’s money laundering conviction for two of the three money laundering counts.” Id. at *1. “We . . . view the holding that commanded five votes in Santos as being that ‘proceeds’ means ‘profits’ where viewing ‘proceeds’ as ‘receipts’ would present a ‘merger’ problem of the kind that troubled the plurality and concurrence in Santos.” Id. at *7.

Of Note: Before he was a Judge, one of Professor W. Fletcher’s memorable lectures was a forceful attack on fractured appellate decisions. Santos proves his point. In Van Alstyne, Judge Berzon struggles to glean the holding of Santos, reading the tea leaves from a plurality decision, a dissent, and a Stevens’ swing vote that irked everyone. Van Alstyne is a careful, honest – indeed, blunt – decision that is a worthwhile read in an era where divided Supreme Court opinions are the norm. See id. at *5 (bluntly describing earlier Lazarenko panel’s erroneous reading of Santos, available here).

How to Use: Q: After Van Alstyne, when will Santos preclude a money laundering prosecution? A: It depends. Van Alstyne cannot be cited for the proposition that the distribution of money from mail fraud will always – or never – support a money laundering conviction: the “analysis of the ‘merger’ problem must focus on the concrete details of the particular ‘scheme to defraud,’ rather than on whether mail fraud generally requires payments of the kind implicated in Santos.” Id. at *8. Van Alstyne illustrates this context-specific analysis: the first two of the three money-laundering counts were reversed, while the third survived. Id. at *8.

The acid test, it seems, is “merger:” if the funds at issue are treated as “proceeds,” would this transform the underlying substantive crime (like mail fraud) into a simultaneous money launder crime in every case (i.e., “merge” the substantive offense with money laundering?) Id. at *4. Through no fault of Judge Berzon, this fact-bound test is difficult to understand and will be even more difficult to apply: thus preserve Santos objections to money laundering counts, a fertile field for appellate error.

For Further Reading: This was a prolific panel: last week the same three judges decided United States v. $186,416 in U.S. Currency, No. 07-56549, 2009 WL 33503042 (decision available here.

$186,416 is also worth a read for its compelling argument that the Fourth Amendment should apply – with even more force – in the civil forfeiture context (here, regarding funds forfeited from a medical marijuana clinic by the feds). Id. at *5-*6.



Image of the Hon. Marsha Berzon from http://blog.law.uark.edu/?p=76 . Image of medical marijuana symbol from http://marijuanacannabis.wordpress.com/2009/08/


Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org


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Tran-scending an En Banc Call

United States v. Tran, __ F.3d __, No. 07-30270 (9th Cir. Oct. 23, 2009) (ord. denying rehearing en banc.)

In June of 2009 we blogged that rarest of beasts: a good conspiracy decision. See blog here, discussing United States v. Tran__ F.3d __, No. 07-30270, 2009 WL 1773149 (9th Cir. June 24, 2009).

Surprisingly, someone did not share our view of Tran -- an en banc call went out. Today, happily, the Tran panel was vindicated: the petition for rehearing en banc was denied. See order here. Judges Gould, O'Scannlain, Kleinfeld, Tallman, Bybee, Callahan and Bea were less Tran-sfixed with the opinion and dissented from the order denying rehearing.

Now, let us all whistle collectively past the cert. graveyard . . .

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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