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March 31, 2011

Ninth Circuit Opinion 03-31-11

US vs. Cotterman, No. 09-10139 (3-30-11)(Tallman with Rawlinson; dissent by B. Fletcher).  This is a troubling 4th amendment/border search opinion. The defendant was stopped entering the US at a tiny POE.  he was on a watch list for a prior sex offense.  The Customs officer gave a careful look at the vehicle, and spotted two laptops and digital cameras.  The agent opened the laptop of the defendant (the other belonged to his wife), but didn’t see anything wrong.  However, many files were password protected. The computer was seized, and taken almost 200 miles away (170 to be exact) to Tucson, to be forensically examined.  After two days, the passwords were breached and child porn was discovered.  The district court suppressed, finding that such a search away from the border, over time, and in seizing the property, cannot be justified by the border search doctrine.  The 9th disagreed.  The 9th explains the need for vigilance on the border, and the need for protection.  The border need not be exactly on the border.  The POE here, Lukeville, was not equipped with computer forensics, and it is impractical to have such labs at every POE.  The 9th stated that the defendant’s property had never been cleared into the country; it was still functionally “at the border.”  Moreover, taking it some distance in such circumstances need not require reasonable suspicion (both sides agreed that none existed here).  The moving of the property, and the time, was a continuation of the border search.  the wait was not onerous, and falls within expectations.  The gov’t does not have carte blanche; courts will examine such delays on a case by case basis.

As for defendant’s argument that reasonable suspicion was needed, the 9th writes that neither was there a bodily search, nor was any property destroyed (two circumstances that the Supremes indicated required reasonable suspicion. The 9th paused as to whether this fit a third category, a “particularly offensive manner,” because of the delay.  The time and seizure of property, for two days, was not, in the 9th’s eyes, highly offensive.  In sum, the 9th holds that relocation of property for a continued border search does not require reasonable suspicion.  Reasonableness of the search will be case by case. Dissenting, B. Fletcher laments the  demise of the 4th amendment.  To the dissent, the sticking point is not so much the relocation of the property but the seizure of it, and depriving of the person of his property, for no reason whatsoever.  There must, the dissent writes, be some particularized suspicion of a crime when there is no indication in the property, or on the computer, that something is amiss.  To permit a search of a computer is to invade privacy, and there was no reason to here except for the gov’t’s own general concerns.

March 27, 2011

Ninth Circuit Opinion 03-27-11

The petition for panel rehearing and rehearing en banc is DENIED.


Defendant-Appellant Xavier Alvarez conditionally pleaded guilty to one count of falsely verbally claiming to have received the Congressional Medal of Honor, in violation of the Stolen Valor Act (the Act), 18 U.S.C. § 704(b), (c),1 reserving his right to appeal the Act’s constitutionality.

Xavier Alvarez won a seat on the Three Valley Water District Board of Directors in 2007. On July 23, 2007, at a joint meeting with a neighboring water district board, newly-seated Director Alvarez arose and introduced himself, stating “I’m a retired marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy. I’m still around.” Alvarez has never been awarded the Congressional Medal of Honor, nor has he spent a single day as a marine or in the service of any other branch of the United States armed forces. In short, with the exception of “I’m still around,” his selfintroduction was nothing but a series of bizarre lies.

Alvarez’s misrepresentations during the 2007 water district board meeting were only the latest in a long string of fabrica- UNITED STATES v. ALVAREZ 11851 tions. Apparently, Alvarez makes a hobby of lying about himself to make people think he is “a psycho from the mental ward with Rambo stories.” The summer before his election to the water district board, a woman informed the FBI about Alvarez’s propensity for making false claims about his military past. Alvarez told her that he won the Medal of Honor for rescuing the American Ambassador during the Iranian hostage crisis, and that he had been shot in the back as he returned to the embassy to save the American flag. Alvarez reportedly told another woman that he was a Vietnam veteran helicopter pilot who had been shot down but then, with the help of his buddies, was able to get the chopper back into the sky.

In addition to his lies about military service, Alvarez has claimed to have played hockey for the Detroit Red Wings, to have worked as a police officer (who was fired for using excessive force), and to have been secretly married to a Mexican starlet. As the district court observed, Alvarez “live[s] in a world, a make-believe world where [he] just make[s] up stories all the time . . . . [T[here’s no credibility in anything [he] say[s].”


Supreme Court - Habeas Review – Batson Issue

Filed under: Los Angeles sexual assault attorney — Tags: , , , — fayarfa @ 7:22 am

On habeas review under 28 U.S.C. § 2254, the court of appeals failed to give sufficient deference to the state court determination that the prosecutor had race-neutral reasons for striking 2 of 3 black prospective jurors.

The Court reiterates that an “evaluation of credibility” not only lies at the heart of a Batson issue, but is entitled to “great deference” on direct appeal. Habeas review then imposes its own “highly deferential standard” for reviewing that evaluation. The 9th had “simply no basis” for its conclusion.


No. 10-797.


2011 U.S. LEXIS 2111

March 21, 2011, Decided



Jackson v. Felkner, 389 Fed. Appx. 640, 2010 U.S. App. LEXIS 15448 (9th Cir. Cal., 2010)



A California jury convicted respondent Steven Frank Jackson of numerous sexual offenses stemming from his attack on a 72-year-old woman who lived in his apartment complex. Jackson raised a Batson claim, asserting that the prosecutor exercised peremptory challenges to exclude black prospective jurors on the basis of their race. See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). Two of three black jurors had been struck; the third served on the jury. App. to Pet. for Cert. 49-50.

Jackson’s counsel did not object when the prosecutor struck the first of the black jurors, Juror S. Counsel later explained that he did not make a “motion at that time” because he thought the excusal of Juror S “was a close call.” After the prosecutor sought to dismiss the second juror, Juror J, Jackson’s counsel made the Batson motion challenging both strikes. Record in No. 2:07-cv-00555-RJB (ED Cal.), Doc. 29, Lodged Doc. No. 7, pp. 76-77 (hereinafter Document 7).

The prosecutor offered a race-neutral explanation for striking each juror: Juror S had stated that from the ages of 16 to 30 years old, he was frequently [*2] stopped by California police officers because — in his view — of his race and age. As the prosecutor put it, “Whether or not he still harbors any animosity is not something I wanted to roll the dice with.” Id., at 78; Record in No. 2:07-cv-00555-RJB (ED Cal.), Doc. 29, Lodged Doc. No. 10, pp. 57-58, 98-100 (hereinafter Document 10).

The prosecutor stated that he struck Juror J because she had a master’s degree in social work, and had interned at the county jail, “probably in the psych unit as a sociologist of some sort.” The prosecutor explained that he dismissed her “based on her educational background,” stating that he does not “like to keep social workers.” Document 7, at 78-79; Document 10, at 188-189; App. to Pet. for Cert. 49.


March 24, 2011

Ninth Circuit Opinions 03-24-11

Untitled Document

US v. Buenrosta, No. 08-16185 (3-23-11)(Per curiam with Graber, Kleinfeld, and Molloy, D.J. Mont.)  The petitioner is doing life for drug trafficking with two prior drug convictions.  So, why didn’t his lawyer allegedly present him with the plea deal for “only” 14 years?  Was it true that his lawyer didn’t know petitioner was facing life?  Sounds like IAC.  However, we will never know the answers because the petitioner presented the claim in a second successive petition.  The petitioner had been convicted at trial, appealed, and then filed a 2255 post-conviction IAC challenge. After that was denied, petitioner filed a Rule 60(b) claim stating that he just found out that his lawyer had withheld a plea from him, and this was new evidence.  This was denied too  The 9th now affirms the denial.  The Rule 60(b) motion is really designed for fraud on the court, or truly exceptional reasons about new evidence.  This wasn’t the case here, where in his first petition, petitioner had raised IAC, and the court had find deficiency due to counsel’s errors, but the ineffectiveness was not prejudicial.  The motion now doesn’t allege some fraud or deficiency in the judicial machinery.  Thus, the motion must be examined as a 2255 successive claim.  Petitioner is barred from filing this successor claim because he does not meet 2255(h)’s requirements.  Petitioner either had to show that the newly discovered evidence, taken into consideration with all the evidence, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found him guilty; or there was a new constitutional rule made retroactive to collateral review by the Supreme Court.  That was not the situation here.  However, petitioner argues that his second IAC claim, although ripe at the time, should be allowed because the evidence  was not discovered until afterwards.  The 9th declines to do so because AEDPA foreclosed such review with its narrow exceptions.  Even where  “compelling new evidence of a constitutional violation is discovered,,” unless it meets the innocent standard or new constitutional rule, it is barred.

March 15, 2011

Ninth Circuit Opinions 03-15-11

1.  US vs. Fernandes, No. 09-30135 (3-14-11)(Per curiam with Thomas, Graber, and Tallman).  Must a court order a defendant convicted of abusive sexual contact under 18 USC 2244(b) to register as a sex offender?  The defendant here worked as a security officer at a national park when he fondled and groped an intoxicated female employee in her room without her permission.  The court sentenced the defendant to probation, but refused to require registration.  The court explained felt that there was no need for registration as the defendant had no priors, and would be unlikely to repeat such an offense.  It doesn’t matter, explains the 9th, which reverses and amends with instructions to put registration as a condition. Under the statutes, the defendant was convicted of a sexual offense, he is defined as a sexual offender, and so he must register.  There is no discretion afforded.  The defendant’s arguments about discretion under Booker and parsimony do not trump a congressional mandate.  The constitutional challenge is also denied.

2.  US vs. W.P.L. (juvenile), No. 10-30202 (3-14-11)(Per curiam with Thomas, Graber, and Tallman).  The juvenile facially challenges the district court’s condition of SR that he register as a sex offender “if required by law.”  The 9th holds that it the issue isn’t ripe yet.  If the juvenile is required to register, and he believe she is not required to, or is not subject to such registration, then he can bring an “as applied” challenge.

March 12, 2011

Ninth Circuit Opinions 03-12-11

US vs. Bonilla, No. 09-10307 (3-11-11)(Reinhardt with Berzon and Pollak, Sr. D.J., E.D. Pa).  In Padilla, the Supremes made clear that the defendant must be advised of the immigration consequences to a guilty plea. Here, the defendant, a legal resident who had been in the country thirty years, faced a count of possessing an unregistered firearm and being a felon in possession.  He had mental issues, and so his wife (a US citizen) frequently spoke for him.

He asked his lawyer what the immigration consequences were, and she said probably deportation.  After he pled straight up, he learned that he was facing certain deportation for agg felonies.  He then moved to withdraw his guilty plea.  the district court denied the plea, stating that he knew there would be some consequences.  On appeal, the 9th reversed and remanded.  The 9th stressed that the standard for moving to withdraw was a “fair and just” reason, which was to be liberally construed.  Here, the defendant and his wife inquired about the consequences before the plea, and were not told of the dire consequences; it was only afterwards that the full extent of the consequences of the guilty plea came through.  Moreover, the defendant plead straight up, and so did not receive some great benefit in accepting a plea.

The fact that court felt that the defendant would have pled guilty anyway doesn’t cut it. Padilla is clear that the real consequences of the plea must be disclosed. Although the lawyer failed to get him the information, believing he was a citizen, the lawyer did come through afterwards and admitted a mistake.

US vs. Kohring, No. 08-30170 (3-11-11)(Thomas with Tashima, partial concurrence and partial dissent by B. Fletcher).  The defendant here was a former state representative charged and convicted of public corruption as part of the undercover operation that also involved Senator Ted Stevens. Stevens had his charges dismissed because of the gov’t’s withholding of Brady and Giglio evidence.

While this case was on appeal, and the Stevens mess came out, the gov’t disclosed information, and suggested that the case be  remanded for the Brady.  The 9th remanded for the district court to see if there was a Brady violation, and whether it was prejudicial.  The district court found in fact that Brady was withheld, but considered it immaterial because it didn’t go to the actual bribery.

On appeal, the 9th reversed and remanded for a new trial.  The 9th noted that the Brady information went to the character of the chief cooperating witness (Allen), his motives, bias, ability to remember, truthfulness, and there was also evidence that exculpated the defendant.  The 9th wrote a treatise on how this evidence could (and should) be used.  B. Fletcher concurred, and only dissented because she thought the withholding was flagrant and intentional, and she would dismiss with prejudice.

March 11, 2011

Ninth Circuit Opinion 03-11-11

US v. Eriksen, No. 10-30056 (3-9-11)(M. Smith with Graber and Benitez, DJ., S.D. Ca).The defendants were convicted of stealing from Peter to pay Paul, with Peter being the company’s ERISA 401(k) employee contributions, and Paul being the company. It was with a goal to save a sinking business (maritime electronics) and the defense was intent.

The defendants were convicted of two counts of 18 USC 664, embezzlement of an employee benefit fund, and one count of false statement in an ERISA plan document. On appeal, the defendant arguied that the pension plan was not an ERISA plan because it was never amended to become an ERISA plan. The 9th explains that the gov’t proved that the plan was in fact amended to be ERISA and to require employer matching funds. The defendant employers also argued intent, that in fact they intended to repay. The 9th points out that they never did and so violated all sorts of fiduciary duties. Third, the defendants argued that the failure of the defendants to make contributions was a civil matter, tied up with the ERISA plan and the timing requirements.

The 9th quickly cuts to the matter, stating that the actions of the defendant amounted to theft and embezzlement. The defendant never made payments once the business started sinking. The 9th reviews the cases where civil regulations were erroneously bootstrapped to criminal charges; and the 9th easily distinguishes those cases from this one. The false statement was telling the employees they had employer contributions when they didn’t. All in all, the defendants criminally violated their fiduciary duties.

March 3, 2011

The Supreme Court held today in Pepper that a district court may consider post-sentencing rehabilitation at resentencing

Filed under: California Appeals Attorney — Tags: , , , — fayarfa @ 1:46 pm

Untitled Document

The Supreme Court held today in Pepper that a district court may consider post-sentencing rehabilitation at resentencing, reversing the Eighth Circuit, which had held that courts were categorically precluded from considering such information.   In the process, it excised 18 USC 3742 (g)(2) as having been invalidated by Booker.

In an opinion written by Justice Sotomayor, the Court invoked 18 USC §§ 3661 and 3553(a) as the clear authority for considering post-sentencing rehabilitation, as well as the Court’s sweeping language in Williams v. New York, 337 U. S. 241 (1949), now codified in §3661: “ “Highly relevant—if not essential—to [the] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics.”

Regarding the Commission’s policy statement at 5K2.19 (which prohibits departures based on post-sentencing rehabilitation), the Court demonstrated in delicious detail why the Commission’s policy is completely unsound and in conflict with several provisions of 3553(a).

Justice Breyer concurred in the result, even agreeing here that the Commission’s policy statement at 5K2.19 is entirely unconvincing. However, Justice Breyer remains convinced that the guidelines offer sound advice in other areas, and expressed his (lone?) opinion that “closer review” should be applied to all district court decisions disagreeing with a guideline.

Justice Alito partially concurred and partially dissented, again expressing his belief that “sentencing judges should be required to give significant weight to all Guidelines provisions and policy statements.”    But he was convinced here by Justice Breyer that the policy decision made by the Commission to prohibit consideration of post-sentencing rehabilitation was “unusual” and “distinguishable from almost all the other rules the Commission has adopted.” (Right!)

Justice Thomas dissented, based on his continuing view that the Booker remedy was too broad.   But even Justice Thomas does not agree with the Commission’s policy statement, agreeing with the majority that “postsentencing rehabilitation can be highly relevant to meaningful resentencing,” and that in light of Mr. Pepper’s successes, “I do not see what purpose further incarceration would serve.”  But he views himself bound by the Commission’s policy statement because there was no Sixth Amendment violation in this particular case.  In other words, it’s okay to send someone to prison when it serves no legitimate purpose.


March 1, 2011


Filed under: California Defense Attorney — Tags: , , , — fayarfa @ 4:34 am

This is the newest case from the US Supremes on Crawford (541 US 36).

The police responded to a call and found the victim of a gunshot wound, dying.  They asked him what happened, and he said that the defendant had shot him, and he had driven himself to this location.  Does admission of this statement violate Crawford?  Well, hearsay violates confrontation unless the hearsay is non-testimonial.

Held:  Covington’s identification and description of the shooter and the location of the shooting were not testimonial statements because they had a “primary purpose . . . to enable police assistance to meet an ongoing emergency.” Davis , 547 U. S., at 822. Therefore, their admission at Bryant’s trial did not violate the Confrontation Clause. Pp. 5–32.

In Davis (547 US 813), the Supremes said only statements describing what’s happening during an emergency are non-testimonial.  The court claims that it’s clarifying this topic.  Here’s the holding: “We hold that the circumstances of the interaction between Covington and the police objectively indicate that the primary purpose of the interrogation was to enable police assistance to meet an ongoing emergency.”  They say that this is an objective test.  They say that if we show the “primary purpose of creating an out-of-court substitute for trial testimony,” the statement is testimonial.  This is certainly bad for us, but we’ve got to limit it to this sort of factual context, a gunshot case where the perpetrator is at large.

Interestingly, there’s a discussion about domestic violence cases, where we’re having our greatest problems, saying that in most such cases the statements will be testimonial.  And note footnote 13, saying that statements must qualify as admissible under state hearsay rules, and must be reliable, or due process is violated!

Michigan v. Bryant; 2011 DJ DAR  ; DJ, 3/1/11; US Supremes

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