Bible v. Ryan, No. 07-99017 (7-1-09). The 9th (Gould joined by Clifton and Bybee) affirm the district court's denial of relief in this capital habeas. The 9th finds no IAC at the sentencing stage. The 9th stresses the nature of the crime (a child murder in a "heinious" fashion), and the speculative nature of the mitigation. The state supreme court had found one factor (the prior conviction) to have been error (it was not violent), but in the re-weighing, had decided that the aggravators had made any error harmless. Under the deferential AEDPA standard, the 9th defers and affirms.

U.S. v. Garcia-Hernandez, No. 08-50190 (6-25-09). The 9th (Ikuta joined by Kleinfeld and Bea) affirm a conviction for 1326 against a challenge for insufficiency of the indictment and admission of the statement. The indictment failed to allege the prior felony conviction. The 9th held that Almendarez-Torres controlled in that the prior conviction was not an element of the offense, and the judge can assess the prior at the time of sentencing. As for the statement, it was admissible, even with a McNabb-Mallory violation. The defendant had been apprehended on a busy day at the California (Calexico) border, and by the time his criminal record was run, it was past six hours. The delay was not unreasonable given the crush of apprehensions (five times as many) and that the delay was a result of administrative and then criminal processing rather than interrogation.

U.S. v. Cruz-Gramajo, No. 07-50381 (6-26-09) et al. In 1326 convictions, the Guidelines have no end of ways to hammer the defendant with criminal history adjustments. Points are added if they have been convicted of crimes after their return but before being found, and with committing the 1326 offense while under a state sentence even if they are found while serving that sentence. Defendants that got such adjustments attack them here on appeal, arguing that the adjustments are actually "relevant conduct" to the offense because it was during the continuing nature. In addition, defendants argue that it is error to get the adjustment for being under a sentence if they are serving the sentence while found. The 9th (Hall joined by N. Smith) reject the arguments. The focus was on the application notes, structure of the Guidelines, and the fact that the harm of 1326s are not continuing. The harm of 1326 is not related to a continuing or compounding harm. This accords with the approach of the 5th circuit. Dissenting, Pregerson argues that the Guidelines definition of relevant conduct should apply, and that the Supremes have rejected this definition in another similar statute that came from the 9th. Pregerson also looks to common sense and the fact that the defendant who gets a conviction while here illegally and serves a sentence has not, and cannot, leave to return and be found.

Although the appeals lost, the AFPDs from C.D. Ca (Los Angeles) made impressive arguments rooted in the Guidelines own statutory language.

U.S. v. Showalter, No. 08-50109 (6-26-09). The 9th rejects another attempt to get out of a plea for a fair and just reason. The 9th (Thompson joined by Pregerson and Fogel) hold that "new evidence" does not include here witnesses who were readily available at the time of the charge and plea decision. Also, a recalibration of the strength of the government's case is also not a fair and just reason. The 9th does remand for resentencing because the adjustment in this fraud sentencing for 50+ victims was not supported by evidence but was speculation.

Case o' The Week: Tran's-mission Not Clear, Says Ninth in Conspiracy Case

"Conspiracy is the darling of the prosecutor's nursery." Thankfully, the Hon. H.P. brings some well-deserved discipline to the little brat. United States v. Tran__ F.3d __, No. 07-30270, 2009 WL 1773149 (9th Cir. June 24, 2009) (decision available here).

Players: Decision by Judge Harry Pregerson (left), joined by Judge Canby; dissent by Judge Noonan.

Facts: ICE learned of a big pot operation distributed out of a warehouse. Id. at *1. One car that had left the warehouse – and stopped by ICE – was a silver Mustang driven by Nguyen, with Tran as a passenger. Id. at *1. The feds found 27 kilos of pot in the car. Id. Nguyen pleaded guilty and was called by the government at Tran’s trial. Id. at *1.

To the government’s chagrin, at trial Nguyen exonerated Tran. Id. at *2.

The government impeached Nguyen, over Tran’s objection, with an ICE agent who reported an inconsistent interview with Nguyen a week before the trial. Id. Nguyen was also impeached by his plea agreement, which said that he and Tran had picked up 70 pounds of weed for redistribution that night. Id. at *2. The government also introduced evidence that Tran had been involved in prior marijuana deals, to show his “knowledge.” Id. at *3. Tran was convicted.

Issue(s): “Tran argues that the government failed to prove that he participated in the conspiracy to possess marijuana for distribution.” Id. at *5.

Held: “The evidence presented against Tran and the reasonable inferences drawn from that evidence do not support even a slight connection between Tran and the conspiracy . . . . Tran’s presence as a passenger in the silver Mustang while the marijuana was transported, and his knowledge of marijuana and marijuana distribution was insufficient as a matter of law to establish his guilt on the conspiracy charge.” Id. at *6.

Of Note: Tran won the war, but lost several evidence battles. The Court held that Nguyen’s plea agreement was admissible as both a prior inconsistent statement, id. at *4, and as substantive evidence because it was ‘given under oath.” Id. at *5. But, note that the “given under oath theory” was not objected to at trial, and thus was subject to plain error review. Id. at *4-*5. Judge Pregerson was careful to emphasize that this theory was only reviewed for plain error – Tran does not stand for the blanket proposition that plea agreements are admissible as substantive evidence.

How to Use: While a huge defense victory, Tran is entirely consistent with a string of Ninth cases that hold that a defendant’s mere presence in a car with drugs is insufficient to support conspiracy charges. Id. at *6-*7 (discussing Sanchez-Mata and Herrera-Gonzales).

(Aside: Nice also to see that, unlike the recent Overton decision, Tran uses the proper de novo standard of review).

Tran is that rare published opinion that rigorously holds conspiracy theory to its own limits. See, e.g., id. at *6 (discussing and rejecting ‘guilt by association’ as a basis for conspiracy convictions). The opinion deserves heavy citation in conspiracy Rule 29 motions.

For Further Reading: What happened to Nguyen, the government witness who flipped his story at trial? Turns out his plea agreement was not a §5K1.1 deal (though he did do a safety-valve debrief). See PACER docket for United States v. Tam Phu Quy Nguyen, 2:06-cr-00296-JCC-9 (defense sent. mem.) Moreover, Nguyen was compelled to testify despite not having entered into a cooperation agreement. Id. at Docket #243. (A chilling prospect for any defendant just trying to plea and do his time without snitching).

Indeed, it seems from the docket that the government learned info it liked at a safety-valve debrief, then got an order of immunity and compelled Nguyen’s trial testimony. Spooky abuse of the safety-valve procedure if that’s what happened. If that is in fact what happened, the ensuing mess frankly serves the government right. (Nguyen ultimately ended up with a 24 month sentence).


Image of the Hon. Harry Pregerson from http://www.centuryhousing.org/about_us.htm

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


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U.S. vs. Tran, No. 07-30270 (6-24-09). Conspiracy, the fair-haired and frankly spoiled child of the prosecutors' nursery, received welcomed discipline by the 9th. In an opinion by Pregerson joined by Canby, the 9th looked at the evidence of a marijuana conspiracy and possession with intent. It was the usual tractor trailer, storing pot, and cars loaded and driven to a close by mall. The defendant was only a passenger. At trial, the driver of the car testified that the defendant had come along for a ride. The government went ballistic, and impeached him with the proffer interview and then the plea agreement's factual basis where he said that he and defendant had picked up and driven marijuana. The 9th found no abuse in the admission of the plea agreement for impeachment as a co-conspirator statement (yikes!) and under oath. Yet, the factual basis line was ambiguous. the other evidence was impeachment. Thus, the 9th found insufficient evidence and reversed convictions. The government had shown that the defendant was a passenger, but that was all. An amazing conspiracy opinion with a rare sensitivity to evidence. Noonan dissented, finding that there was sufficient evidence.

U.S. v. Calderon-Espinosa, No. 08-50092 (6-24-09). The 9th (Pregerson joined by D. Nelson and Singleton) remanded a 1326 defendant for resentencing. The district court erred in awarding criminal history points for the state conviction for "loitering for drug activities." The Guidelines in 4A1.2(c)(2) state that loitering and offenses known by these title shall not be counted.

Congratulations to AFPD Jonathan Libby of the C.D. Ca. (Los Angeles).

U.S. v. Paulk, No. 08-50229 (6-24-09). Per curiam, the 9th holds that crack retroactivity does not apply to mandatory minimum sentences. The amendment under 3582 does not trump 21 USC 841, but vice versa.

U.S. vs. Lopez-Velasquez, No. 07-30241 (6-23-09). The defendant was charged with 1326. He had been deported in 1994 but had not been informed of 212(c) discretionary relief. If he had been so informed, the district court believed he would not have waived his appeal because he had strong equities, including a citizen wife, and two citizen children. The court granted his motion to dismiss the indictment. The 9th (Reinhardt joined by Pregerson and Storm) agreed and affirmed the dismissal. The government had conceded that 212(c) relief was available, but that the defendant at that time would not have met the 7-year residency requirement. The 9th reasoned that he arguably might have (he was two months shy possibly at filing but arguments could be made that he was in the country longer than 7 years).

U.S. vs. Sanchez, No. 07-50564 (6-23-09). Circuit conflict! Remember in the days post-Booker when appeals from pre-Booker sentencings still were percolating? The 9th in Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc) had allowed limited remands to the district court for the court to determine whether it would have imposed a different sentence if at the time of sentencing the guidelines had been advisory and not mandatory. The 9th had implied that the standard would be generous. In this case, the defendant had been sentenced for mail fraud and money laundering related to a charity. On an Ameline remand, he argued that the court should consider his post-sentencing rehabilitation. The court allowed evidence, but then said it would not have changed its sentence. The 9th (Thompson joined by Peterson and Fogey) held that the 9th follows the 2nd Circuit, and the 6th and 7th, and will not consider post-sentence rehab in a sentencing in an Ameline remand. The remand is to determine at the time of the first sentencing whether the court would have, under those factors, impose a different sentence. This is in conflict with the 3rd and 4th (!) Circuits that have a full sentencing with all factors considered.

Keesee vs. Power, No. )7-56153 (6-23-09). The 9th (Grabber joined by Noonan and O'Scannlain) consider whether a state court's decision that a petitioner's committing a crime while on probation is akin to an Almederaz-Torres prior conviction and can be decided by a judge for sentencing enhancement purposes. Under AEDPA , the 9th has to follow a state court's "reasonable" interpretation of law, even if the 9th would have disagreed with it. Such is the case here.

Holley v. Yarborough, No. 08-15104 (6-16-09). The 9th issues habeas relief to a petitioner, vacating convictions for lewd acts with children. The 9th (Smith joined by Kleinfeld and T. Nelson) hold that petitioner's Sixth Amendment rights to confrontation were violated when the court prevented cross examination about a child's (11 years old) prior statements regarding sex and about how others had made sexual advances toward her. The 9th also questioned the admission of evidence that the petitioner had guns in the house, and the admission of several sexually explicit magazines. The facts of this case raised real questions of guilt, and the prosecutor's closing focused on the credibility of the child witness.

U.S. v. Leniear, No. 08-30199 (6-18-09). The 9th (Tallman joined by W. Fletcher and Gould) held that the district court lacked jurisdiction to amend or modify a crack sentence under amend. 706 because the guideline would not have changed. The guideline offense level would have stayed the same because of the multiple counts adjustment and grouping. The 9th did find that the appeal waiver of the plea did not bar appeal because the issue was whether the court had jurisdiction to modify the sentence, and it was not an attack on the imposition of the sentence.

U.S. v. Overton, No. 08-30075 (6-18-09). The 9th affirmed convictions for sexual exploitation of a minor and possession of child porn. The 9th (Tallman joined by M. Smith and Reavley) held there was sufficient evidence of exploitation (it was not abuse of discretion to let certain photos in). The 9th also found that there could be separate convictions for 2252(a) and 2255(b) (receipt and possession of child porn). The Blockburger test indicates two separate offenses. The sentence of 235 months was not unreasonable.

Case o' The Week: Lacivious Is as Lacivious Does, Overton and Child Pornography

"Bad facts make bad law," the chestnut goes. Pretty grim facts in this child porn case certainly don't help in an opinion that spawns a bevvy of new holdings in the field. United States v. Overton, __ F.3d __, No. 08-30075, 2009 WL 1694228 (9th Cir. June 18, 2009), decision available here.

Players: Hard-fought case by Montana Defender Anthony Gallagher. Decision by Judge Tallman (left).

Facts: Overton was charged with a number of child porn and sex offenses for sexual contact with his 17-year old step-daughter, and for taking nude pictures of her. Id. at 1. None of the five pictures at issue displayed sexual activity, but three of the images depicted the minor’s genitals or pubic area. Id. at *5. The district court denied Overton’s Rule 29 motion at the close of the government’s case during a bench trial, rejecting the defense argument that the pictures did not portray “sexually explicit conduct” required for conviction. Id. at *3. Overton was convicted and sentenced to 235 months. Id. at *3.

Issue(s): “Overton first claims that the Government’s proof was insufficient to sustain a conviction on the sexual exploitation counts [the child-pornography counts alleging violations of 18 USC § 2251(a).]” Id. at *4. “Overton’s only quarrel regarding his sufficiency of evidence claim is his continued insistence that the nude photographs he took of [the minor] do not depict ‘sexually explicit conduct’ within the meaning of 2251.” Id. at *5.

Held: “Here, the Dost factors, while not definitional, firmly substantiate the finding that these three images depict the lascivious exhibition of the genitals or pubic area.” Id. at *6.

Of Note: There’s many important little holdings for child porn cases in this opinion, none of them good. First, Judge Tallman decides what is apparently a matter of first impression by articulating the standard of review for a finding, at trial, that an image is “lascivious.” Id. at *6. The Ninth imports a standard from the (progressive) Fourth Circuit, and holds that the standard of review is the “significantly deferential, clearly erroneous standard.” Id. at *6. Not, in other words, de novo review. For that proposition, the opinion cites Wiegand, a Ninth Circuit case considering the standard of review for a Fourth Amendment motion – not a trial (and Overton doesn’t reveal that difference). Id. at *6.

The opinion also ignores the rule that review of a denial of a properly-preserved Rule 29 motion (as was done here) is reviewed de novo. See United States v. Gonzalez, 528 F.3d 1207, 1211 (9th Cir. 2008) (“When a claim of sufficiency of the evidence is preserved by making a motion for acquittal at the close of the evidence, this court reviews the district court's denial of the motion de novo.”) The S.O.R. seems off-kilter, here.

The opinion also has a new approach to the infamous Dost factors for determining what is child porn. (Dost is the district court case that set forth six factors for this analysis.) Id. at *5. Judge Tallman places much weight on the fact that Overton produced these images, and that he directed the minor’s poses, in concluding that the images were “lascivious.” Id. at *7. In other words, Dost has devolved into a subjective analysis of the intent of the defendant-photographer, instead of an objective analysis of the legal significance of the images. Whether that new approach is correct or not (and we think not), it is an important development to bear in mind when fighting allegations that a defendant possessed child porn that only qualifies under the “lascivious” statutory definition. See 18 USC § 2256(2)(A)(v).

How to Use: Overton will see the most play in Fourth Amendment challenges where agents base a search warrant on an image that doesn’t involve overt sexual conduct, but instead a nude minor. See generally United States v. Battershell, 457 F.3d 1048, 1051 (9th Cir. 2006). Unfortunately, the three images described in Overton will now presumably set the bar for “lascivious” images. Id. at *5. For better or worse, those Overton descriptions will now be a starting point for analysis of the “lascivious-ness” of an image under the federal child porn statute.

For Further Reading: Not all the news was bad for sex-crime cases this week. In Holley v. Yarborough, __ F.3d __, 2009 WL 1667867 (9th Cir. 2009), Judge Milan Smith wrote for a panel that granted habeas relief for improper limitation on the cross-examination of a sex-crime victim.



Image of the Hon. Richard C. Tallman from http://www.uscourts.gov/ttb/2007-09/newLeadership/index.html

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

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