1/19/17: Helpful Miranda decision

Rarely do I post about a non-Ninth Circuit decision, but People v. Saldana; D071432; 1/12/18; C/A 4th, Div. 1, is worth noting.  

It is Miranda reversal, and thus the standard is the same in both federal and state courts.  As such, the opinion should be useful for federal practitioners as well. 

The case arose out of molestation accusations (and ultimately a conviction).  Although the defendant was told he was not under arrest and could leave, he was aggressively questioned in a police station without Miranda warnings.  

On appeal, the Court found that the defendant was in custody for purposes of Miranda and thus the warnings were required.  Because they were not given, and the purported confession was introduced, the Court vacated the defendant's conviction.  

Its analysis focused on the character of the questioning:

 Saldana's interrogation was persistent, confrontational, and accusatory. Detective Gonzales did much more than simply confront Saldana with adverse evidence. He confronted Saldana with unqualified assertions of his guilt, despite Saldana's repeated denials. Presenting an unwinnable dilemma, the detective persisted in telling Saldana he should identify himself as either a pedophile or an opportunistic molester.

Detective Gonzales's insistence that Saldana was guilty, his disbelief of Saldana's many denials, and his use of classic interrogation techniques reflects the sort of police dominated atmosphere that Miranda warnings were intended to counteract. Detective Gonzales subjected Saldana to a classic two-pronged interrogation. First, involving tactics that suggested Saldana should confess because no other course of action is plausible, such as confronting him with real or invented evidence, identifying contradictions in his account, and refusing to credit his denials. And second, tactics suggesting Saldana will in some way feel better or benefit if he confesses, such as appealing to less morally culpable reasons for committing the offense.  

Over and over again, Detective Gonzales conveyed the message that Saldana had no meaningful choice but to admit to some version of the crime because continued denials—in light of the extensive and irrefutable evidence against him—was simply futile. Insisting on the "truth" until Saldana told him what he sought, the objective message conveyed was that Saldana would be interrogated until he admitted touching the girls.

These tactics are not unusual, nor are they unreasonable. In fact, if Saldana had been properly Mirandized and made the same confession, it might be called good police work. But such an interrogation is associated with "the full-blown interrogation of an arrestee, and except for a Miranda advisement, we cannot conceive how [Saldana's] interrogation might have differed had he been under arrest." 

1/16/18: Washington conspiracy is overbroad

In United States v. Brown, --- F.3d ---, No. 16-30218 (9th Cir. 2018), the Court vacated the defendant's sentence for being a felon in possession of a firearm. In calculating the Guidelines range, the district court determined that a base offense level of twenty applied because the defendant's previous conviction for drug conspiracy under Washington state law qualified as a “controlled substance offense.”

The Ninth Circuit disagreed.  It held the defendant's prior Washington drug conspiracy conviction was not a “controlled substance offense” for purposes of U.S.S.G. 2K2.1(a)(4)(A).  This was because, unlike federal conspiracy, Washington conspiracy includes when the other party to the conspiracy is a law enforcement officer or other government agent who did not intend that a crime be committed.  In other words, the state statute explicitly defined a crime more broadly than the generic definition.

The decision also has good language on harmless error. 

1/11/17: Dismissing jurors and waiver of sentencing claims

In United States v. Dupue, --- F.3d ---, No. 15-10553 (9th Cir. 2018), the Court affirmed the pro se defendant's mortgage fraud convictions and sentence. 

On appeal, the defendant challenged the district court's dismissal of a juror who claimed another juror poisoned him. Although the dismissed juror described himself as the "odd man out," the Court found no abuse of discretion because the dismissal was not based on the juror's view of the merits, but his odd claim of illness and reticence at continuing.

The Court set forth the following rule: "We hold, first, that a trial judge may excuse a juror at any time for any material problem impeding fair deliberations as long as it was not due to the juror’s views of the merits of the case."

More troubling is the Court's conclusion that the pro se defendant affirmatively waived his right to challenge the alleged Guidelines errors.  The Court essentially merged the waiver and plain error doctrines finding: "Depue cannot show plain error in the district court’s calculation of the total offense level because he affirmatively waived his right to challenge the alleged Guidelines errors."

But the waiver was not the typical waiver -- as in the defendant being told he was giving up certain rights.   Rather, it was simply a failure to object along with a statement that the PSR calculation appeared correct.   Nevertheless, the Court construed this as knowing relinquishment of the right to challenge his sentence.  Expect to see the government citing this case often.

1/10/18: A supervised-release revocation hearing is not a criminal proceeding for purposes of the Fifth Amendment right against self-incrimination

In United States v. Hulen, --- F.3d ---, No. 16-30160 (9th Cir. 2018), the Court held that a proceeding to revoke supervised release is not a criminal case for purposes of the Fifth Amendment right against self-incrimination.  Thus, the district court could base the revocation on admissions made during mandatory sex-offender treatment.  In other words, compelled statements can be introduced at revocation hearings.  

Obviously, this has troubling implications.  For example, what if the government tries to force your client to testify against him or herself at a revocation hearing?  

A possible answer comes from in United States v. Antelope, 395 F.3d 1128,1135 (9th Cir. 2005).  There, a probationer refused to detail his sexual history out of fear that he would be charged with new crimes for past actions. The Court upheld the refusal because it had “no doubt,” “that any admissions of past crimes would likely make their way into the hands of prosecutors.”  The Court focused on the possibility that the answers “would incriminate [the defendant] in a pending or later criminal prosecution.” 

The same argument can be made in the revocation context.  If the answer could result in a new prosecution, the privilege should remain. 

Another helpful reminder for appeals: "An appeal of a sentence is not moot where success on the appeal could alter the length or conditions of the supervised release portion of the defendant’s sentence."

12/29/17: case on 1325 misdemeanors

In United States v. Aldana, --- F.3d---, No. 16-50372 (9th Cir. 2017), the Court affirmed the defendants' misdemeanor convictions under  8 U.S.C. § 1325(a)(1) for attempting to enter the United States “at any time or place other than as designated by immigration officers.”

The Court rejected the defendants' argument that, because the applicable regulations designate entire geographic regions as ports of entry -- rather than just the actual immigration facilities -- and because they entered within that such a region, there was insufficient evidence they had violated the statute.

Instead, the Court held that, for purposes of the statute, a place “designated by immigration officers” refers to a specific immigration facility, not an entire geographic area.

12/27/17: A memorandum worth reading

In United States v. Young, No. 15-50158 (9th Cir. 2017), the Court vacated the defendant's convictions for conspiracy to violate the Racketeer Influenced and Corrupt Practices Act (RICO), conspiratorial and substantive murder under the Violent Crimes in Aid of Racketeering (VICAR) statute, and use of a firearm in furtherance of a crime of violence.

It is a memorandum disposition worth reading.  The Court found the district court erred in admitting through a detective hearsay statements from an alleged gang member implicating the defendant. 

Further, the district court erred in failing to suppress the defendant's inculpatory statements resulting from a deliberate two-step interrogation: "Detectives interrogated Young at the police station for at least twenty minutes without providing any Miranda warnings. Only after Young confessed that he drove the vehicle linked to the shooting (his mother’s car) did the detectives finally give him Miranda warnings." 

On this issue, the Ninth Circuit rejected "the government’s contention that the detectives delayed giving the Miranda warnings so that they could build rapport with Young and get 'biographical' information."

The Court also found the district court plainly erred in failing to instruct the jury accurately as to the culpability required for a criminal conviction under RICO.

The district court instructed the jury that the government must prove that Young “conspired and agreed” that he “or a co-conspirator, would conduct or participate, either directly or indirectly, the conduct of the affairs of the enterprise through a pattern of racketeering activity.” The district court’s instructions obscure the elements of the crime because they do not explain what the defendant, not a co-conspirator, needed to agree to do in order to be found criminally culpable as a conspirator. A defendant is guilty of conspiracy to violate RICO only if the evidence shows that the defendant knowingly and personally “agreed to facilitate a scheme which includes the operation or management of a RICO enterprise.” 

Finally, the Court touched on an important issue to monitor, the impact of Burrage v. United States, 134 S. Ct. 881 (2014) (insisting on but-for causality), on “substantial purpose” or "dual purpose" instructions.

Congratulations to Ben Coleman on another great victory.  And congratulations to Mark Windsor for his tenacious advocacy below. 

12/19/17: Important victory in murder case

Congrats to Davina Chen on the important victory in United States v. Wells, --- F.3d ---, No. 14-30146 (9th Cir. 2017). 

This was a multiple murder case out of Alaska.

You know an opinion is likely coming out for the defense when it begins - "As Justice Louis D. Brandeis warned many years ago: 'The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.'"

The opinion is very long, covering myriad topics. 

Of particular note, the Court excoriated the government for interfering with appointment of counsel under the CJA:

The administration of the CJA is a judicial function for which the Judicial Conference of the United States has approved official guidelines. The prosecution is typically precluded from participating in the determination of a defendant’s eligibility for CJA-appointed counsel. 

The Government’s exclusion from the administration of the CJA is a significant contributing factor to the fairness of our system and the CJA’s role in redressing the imbalance of power between an indigent defendant and the Government. “A contrary position might well result in a system wherein the outcome of criminal trials would be determined by the poverty of the accused rather than the integrity of the factfinding process.” 

The Court warns: "in the future, the Government should tend to its own knitting."

There is also a detailed discussion (ultimately outcome determinative for the defense) on the use of experts to provide criminal profile testimony as substantive evidence of guilt. This should be very helpful going forward.  For instance, the Court rejected the argument that a defendant's opening statement could open the door to such profile testimony.

The Court further explained, "[t]hose jurisdictions that have considered profiles of battering parents, pedophiles, rapists, and drug couriers unanimously agree that the prosecution may not offer such evidence in its case-in-chief as substantive evidence of guilt."

The Court also gives us a good reminder that, "[w]here the district court fails to engage in necessary Rule 403 balancing, we [] review de novo."  And, "[w]e begin with a presumption of prejudice, in reviewing the effects of this erroneous admission."

Additionally, the court has a lengthy analysis of other act evidence under Rule 404, which is worth reading.

There is lots more in the opinion.  But you get the idea.