5/31/17: En banc Court hold S.D. Ca.'s shackling policy unconstitutional

In United States v. Sanchez-Gomez, --- F.3d ---, No. 13-50561 (9th Cir. 2017) (en banc), a divided Court held that the general shackling policy in the Southern District of California is unconstitutional. 

Under the policy, all pretrial detainees were brought to court in full restraints, meaning "that a defendant’s hands are closely handcuffed together, these handcuffs are connected by chain to another chain running around the defendant’s waist, and the defendant’s feet are shackled and chained together."

Led by Federal Defenders of San Diego, Inc., multiple defendants objected to the policy and their appeals were consolidated for en banc decision.  

The opinion contains a very interesting discussion of mandamus jurisdiction and mootness considerations.  The real highlight, however, is Judge Kozinki's discussion of the merits.  Here is some of the key language, with citations omitted:

At the heart of our criminal justice system is the well-worn phrase, innocent until proven guilty. And while the phrase may be well-worn, it must also be worn well: We must guard against any gradual erosion of the principle it represents, whether in practice or appearance. This principle safeguards our most basic constitutional liberties, including the right to be free from unwarranted restraints.  

We now clarify the scope of the right [to be free from shackles] and hold that it applies whether the proceeding is pretrial, trial, or sentencing, with a jury or without. Before a presumptively innocent defendant may be shackled, the court must make an individualized decision that a compelling government purpose would be served and that shackles are the least restrictive means for maintaining security and order in the courtroom. Courts cannot delegate this constitutional question to those who provide security, such as the U.S. Marshals Service. Nor can courts institute routine shackling policies reflecting a presumption that shackles are necessary in every case.

This right to be free from unwarranted shackles no matter the proceeding respects our foundational principle that defendants are innocent until proven guilty. The principle isn’t limited to juries or trial proceedings. It includes the perception of any person who may walk into a public courtroom, as well as those of the jury, the judge and court personnel. A presumptively innocent defendant has the right to be treated with respect and dignity in a public courtroom, not like a bear on a chain.  

The most visible and public manifestation of our criminal justice system is the courtroom. Courtrooms are palaces of justice, imbued with a majesty that reflects the gravity of proceedings designed to deprive a person of liberty or even life. A member of the public who wanders into a criminal courtroom must immediately perceive that it is a place where justice is administered with due regard to individuals whom the law presumes to be innocent. That perception cannot prevail if defendants are marched in like convicts on a chain gang. Both the defendant and the public have the right to a dignified, inspiring and open court process. Thus, innocent defendants may not be shackled at any point in the courtroom unless there is an individualized showing of need.

We emphatically reject the idea that courtrooms are (or should be) perceived as places of restraint and punishment, or that courtrooms should be governed exclusively by the type of safety considerations that justify detention facility policies. We must make every reasonable effort to avoid the appearance that courts are merely the frontispiece of prisons.

In the courtroom, law enforcement officers have no business proposing policies for the treatment of parties as a class. Insofar as they have information pertaining to particular defendants, they may, of course, bring it to the court’s attention. But a blanket policy applied to all defendants infuses the courtroom with a prison atmosphere. The Marshals Service should not have proposed it and the judges should not have paid heed.  

We must take seriously how we treat individuals who come into contact with our criminal justice system—from how our police interact with them on the street to how they appear in the courtroom. How the justice system treats people in these public settings matters for the public’s perception, including that of the defendant. Practices like routine shackling and “perp walks” are inconsistent with our constitutional presumption that people who have not been convicted of a crime are innocent until proven otherwise.  

The Constitution enshrines a fundamental right to be free of unwarranted restraints. Thus, we hold that if the government seeks to shackle a defendant, it must first justify the infringement with specific security needs as to that particular defendant. Courts must decide whether the stated need for security outweighs the infringement on a defendant’s right. This decision cannot be deferred to security providers or presumptively answered by routine policies. All of these requirements apply regardless of a jury’s presence or whether it’s a pretrial, trial or sentencing proceeding. Criminal defendants, like any other party appearing in court, are entitled to enter the courtroom with their heads held high.

And while we are on the subject of inspired writing, Judge Reinhardt's concurrence in Ortiz v. Sessions is also worth a read. 

5/30/17: Restitution case

In Twenty-Nine Palms Band v. Kovall, --- F.3d ---, No. 15-50419 (9th Cir. 2017), the Court held that, although crime victims have constitutional standing to challenge restitution orders under the Mandatory Victims Restitution Act, they still cannot directly appeal such orders because neither the statute nor due process gives them that right. 

The case contains a helpful discussion of the statutory restitution provisions in federal law. 

5/15/2017: Case about mens rea for misprision of felony.

In United States v. Olsen, --- F.3d ---, No. 15-30022 (9th Cir. 2017), the Court affirmed the defendant's misprision conviction.

Here's what you need to know:

18 U.S.C. § 4 requires the government to prove the defendant knew the principal engaged in conduct that satisfies the essential elements of the underlying felony and that the defendant knew such conduct was a felony. To establish the latter, the government must prove the defendant knew the offense was punishable by death or a term of imprisonment exceeding one year. 

Also of note is the Court's comment that, "[i]n future cases, of course, a defendant in Olson’s position could request an instruction requiring the government to prove that she knew the underlying offense was punishable by more than one year in prison."

5/11/17: They say the man who represents himself has a fool for a client

In United States v. Brugnara, --- F.3d ---, Case No. 15-10509 (9th Cir. 2017), the Court affirmed the defendant's convictions arising out of an art purchase gone terribly wrong.  

The defendant represented himself and his behavior at trial was less than ideal: 

From the moment his trial began, Brugnara’s behavior could be described as appalling. He quickly dispensed with procedural and evidentiary requirements during his examinations by making speeches and asking improper “questions” designed to place inadmissible evidence before the jury. If the government attorneys objected, Brugnara would speak over them and interrupt the judge when he tried to make a ruling. Brugnara shouted down attempts to rein him in on several occasions.

In addition to these procedural affronts, Brugnara was not shy about personally insulting those around him. Some of the more egregious examples include telling the government’s attorney that she dressed “like a Nazi” and suggesting that the judge hand the prosecutor his robe because she was running the courtroom. Nor did he limit his scorn to the government and district judge: he berated witnesses, too. During his cross-examination of Long, for example, he rudely asked her over and over again if her cognitive abilities were impaired. He also demeaned a probation officer as unqualified for her job because she did not know the difference between a corporate officer and a shareholder.

Eventually, he was convicted on six of nine counts and sentenced to 84 months. 

The appeal addressed a host of issues: (1) new trial motion based on newly discovered evidence; (2) sufficiency of the evidence for wire and mail fraud; (3) sufficiency of the evidence for making a false declaration before a court; (4) jurors who answer dishonestly about criminal history; (5) a pro se defendant's right to access legal materials; (5) a district court's obligation to terminate the right to self-representation based on competency concerns; and (6) a district court's obligation to order a competency evaluation sua sponte

The Court rejected each of the defendant's arguments.  If you have a case with one of these issues, the opinion is worth a read.    

5/5/17: Trade secrets case

In United States v. Liew, --- F.3d ---, No. 14-10367 (9th Cir. 2017), the Court issued a lengthy opinion in a trade secrets case. 

The case revolved around Du Pont's technology for producing titanium dioxide. 

The Ninth Circuit affirmed the denial of certain jury instructions, reversed a few counts for sufficiency, vacated the sentence, and remanded for consideration of a potential Brady violation. 

Of note, a general denial in a civil answer will usually not constitute obstruction of justice.  

Also, there is some decent language about the low standard to make a prima facie showing for a Brady violation.  The specific issue was about FBI rough notes that allegedly contained exculpatory information. 

5/2/17: Sentencing reduction case

In United States v. Rodriguez-Soriano, --- F.3d ---, No. 15-30039 (9th Cir. 2017), although both the government and defendant sought a remand, the Court affirmed the defendant's sentence. 

The issue was whether the defendant was entitled to a sentencing reduction under 18 U.S.C. § 3582(c)(2) based on Amendment 782, which lowered by two levels the base offense level calculated for certain drug types and quantities.

The district court held he was not, and the Ninth Circuit agreed. The case turned on the fact that the defendant's initial 300 month sentence was not "based on" a Guidelines range that was subsequently lowered.  Instead, it was based on the interplay between the mandatory minimum and the government's substantial-assistance departure motion.

The opinion has a detailed discussion of this issue, which is generally governed by the Court's en banc decision in Davis. 

5/1/17: Good case on effective denial of counsel

In United States v. Velazquez, --- F.3d ---, No. 14-10311 (9th Cir. 2017), the Court vacated the defendant's conviction (resulting from a guilty plea) based on the district court's error in denying the defendant's requests to substitute counsel without conducting an adequate inquiry. 

In this context, the reversal is automatic.  As the Court explained:

Where a criminal defendant has, with legitimate reason, completely lost trust in his attorney, and the trial court refuses to remove the attorney, the defendant is constructively denied counsel. A defendant need not show prejudice when the breakdown of a relationship between attorney and client from irreconcilable differences results in the complete denial of counsel. Because the Sixth Amendment’s guarantee of effective assistance of counsel applies at the plea-bargaining stage, constructive denial of counsel can occur at that phase just as it can at trial.

The opinion contains a thorough discussion of the law in this area, which focuses on a multi-factor test: “(1) the adequacy of the district court’s inquiry; (2) the extent of the conflict between the defendant and counsel; and (3) the timeliness of defendant’s motion.”   The Court also declined to enforce the appeal waiver.  

Judge Kozinski concurred "to note that the judges below acted with what they believed to be Velazquez’s best interest at heart. Even now, withdrawing from the plea may not be wise, but it’s Velazquez’s choice to make. I hope and trust that the government will accept her choice with generosity and compassion."