BLOG BULLETS:

• The government can’t unilaterally decide you or your client has breached a plea agreement; it has to seek a ruling from the court.
• The defense is entitled to an evidentiary hearing on the question if there are disputed facts.
• The defense breach has to be “substantial,” or “material”; a mere technical, de minimus breach isn’t enough.

NOW THE BLOG:

In the midst of working on a breach of plea agreement appeal this week, it came to my mind to share some case law I came across in some other research a year or so ago that adds an additional point to remember about plea agreement case law. Sometimes you’ll have a case where the government will claim your client or you breached the plea agreement and that they’re therefore relieved from their obligations under the agreement. So when can the government use your client’s or your conduct to back out of the deal?

It turns out there’s some very good case law holding that the government can’t just unilaterally decide for itself that the defendant has breached and then go on its merry way claiming that the agreement is now void and that it, the government, isn’t bound anymore. The cases have held that “[a] court must determine breach, with an evidentiary hearing if there are disputed issues of fact.” United States v. Packwood, 848 F.2d 1009, 1011 (9th Cir. 1988) (emphasis added) (citing United States v. Calabrese, 645 F.2d 1379, 1390 (10th Cir. 1981)). As put another way in the Calabrese case which was cited inPackwood, “[t]he question of a defendant’s breach is not an issue to be finally determined unilaterally by the government.”Calabrese, 645 F.2d at 1390.

Calabrese is not just some outlier case, moreover. It has been followed by multiple other circuits, see United States v. Williams, 510 F.3d 416, 424 (3d Cir. 2007); United States v. Lezine, 166 F.3d 895, 901 (7th Cir. 1999); United States v. Brown, 801 F.2d 352, 355 (8th Cir. 1986); see also United States v. Castaneda, 162 F.3d 832, 836 (5th Cir. 1998) (stating same rule but citing other authority); United States v. Simmons, 537 F.2d 1260, 1261-62 (4th Cir. 1976), cited in Calabrese, 645 F.2d at 1390, and it remains good law,see United States v. Cudjoe, 534 F.3d 1349, 1354-55 (10th Cir. 2008) (quoting and followingCalabrese); United States v. Guzman, 318 F.3d 1191, 1196 (10th Cir. 2003) (same). As reiterated in the more recent Guzmancase:

“[I]f the pleadings reveal a factual dispute on the issue of breach [of the plea agreement], the district court must hold a hearing to resolve the factual issues.” United States v. Calabrese, 645 F.2d 1379, 1390 (10th Cir. 1981). In other words, the government may not unilaterally declare a breach of a plea agreement; the court must hold a hearing and make a finding that the defendant breached the agreement before the government is released from its obligations under the agreement. Id.; (additional citation omitted).

Guzman, 318 F.3d at 1196. One reason for these procedural protections is that “[p]lea agreements implicate important due process rights, . . . and so the process must be fair.” Packwood, 848 F.2d at 1011.

There’s also some nice case law stating that the defendant’s breach has to be more than a de minimus, technical violation of the agreement. The breach must be “substantial,” United States v. Lezine, 166 F.3d at 901 (quoting United States v. Ataya, 864 F.2d 1324, 1330 (7th Cir. 1988)), or “material,” United States v. Castaneda, 162 F.3d at 836. Query whether a client who technically violates his plea agreement by violating some bond condition when the plea agreement requires him to comply with all conditions of his bond has commited a “substantial” or “material” breach where the real crux of the agreement is the plea and an agreement on some sentence or set of guideline provisions.

Keep these requirements in mind if the prosecutor starts talking about your client having breached and threatening to back out of the agreement. First, the breach has to be substantial or material and you may be able to argue about that. Second, you have a right to say to the prosecutor: “Prove it. Let’s go in front of the judge for a hearing.” Third, you have a right to say to the judge: “I want a hearing.” You may or may not want that, but keep it in mind as an option in the right case. How many prosecutors and/or judges are going to want to open up a can of worms they don’t need to open up, especially if it’s something that’s just not that important?

BLOG BULLETS:

• Remember that it’s you doing the government a favor when you offer a conditional plea, not them doing you a favor by accepting the offer.
• A new guidelines amendment overrules a bad Ninth Circuit case and states that the government can’t withhold the third acceptance of responsibility point simply because a defendant won’t waive his right to appeal.
• This amendment ought to prevent the government from withholding the third point even if the defendant has to sit through a bench trial because the government won’t agree to a conditional plea.

NOW THE BLOG:

Last year, I put up a post explaining why the government isn’t giving you anything by agreeing to a conditional plea. (See “They’re Doing You a Favor by Agreeing to a Conditional Plea? Wait a Minute!” through the September 2012 link at the right.) I explained that the defendant always retains the option of simply sitting through a bench trial to preserve the issue, and that the defendant would still be entitled to acceptance of responsibility if that was what he or she had to do. One thought some of you may have had in response is that the defendant would lose the third acceptance of responsibility point by doing that. And there’s actually a bad Ninth Circuit case – United States v. Johnson, 581 F.3d 994 (9th Cir. 2009) – that went even further and held that the government can refuse to move for the third acceptance of responsibility point anytime the defendant refuses to sign a waiver of appeal. See id. at 1002.

Putting aside the issue of whether the small additional sentence reduction you get from this third point is worth giving up a viable appellate issue and whether the government wouldn’t at some point back down if you push them (as they always have in the cases I’m aware of), there’s a new guideline provision taking effect this Friday, November 1, with the new 2013 guidelines, that expressly rejects Johnson and will help us in this situation. The amendment adds a sentence to Application Note 6 of the acceptance of responsibility guideline that states: “The government should not withhold such a motion based on interests not identified in § 3E1.1, such as whether the defendant agrees to waive his or her right to appeal.” U.S.S.G. § 3E1.1, comment. (n.6) (2013) (emphasis added). The “Reason for the Amendment” explaining the amendment – which can be found in Appendix C of your new guidelines manual, but also in the guidelines amendments summary linked here – notes a circuit split that has the Johnson case on one side, compare Johnson, 581 F.3d at 1002-03, with United States v. Divens, 650 F.3d 343, 348 (4th Cir. 2011), and indicates the amendment is intended to take the side of the split against Johnson. SoJohnson is no longer good law and the government can’t refuse to make a motion for the third acceptance of responsibility point just because the defendant won’t waive his right to appeal.

This amendment doesn’t directly address the worst-case scenario I posed in my post last year where you sit through a bench trial doing nothing because the government won’t agree to a conditional plea. But I offer two thoughts about that. First, I doubt very much that the government’s going to continue to reject a conditional plea when push comes to shove and it becomes clear you’ll otherwise get the same appeal option by just sitting through a wasteful bench trial. The government would just be biting off its nose to spite its face, to use one of my mother’s old expressions, and they’d be biting off not just their own nose but the nose of the judge whose time they were wasting in addition to their own.

Second, even if the government did persist in its refusal, the amendment would seem to mean you still get the third point. The underlying premise of the amendment is that the government can’t withhold the motion just because the defendant won’t give up his right to appeal, and that ought to extend to cases where the trial takes place only because the government won’t agree to the alternative of a conditional plea. It seems clear that the new application note isn’t limited to sentence appeals, because the Johnson case the Commission rejected was about a defendant reserving his right to appeal a pretrial suppression motion, not just a sentence. If the government’s resources get used in a trial that’s the government’s fault because it won’t take the conditional plea option, that doesn’t seem to be an “interest . . . identified in § 3E1.1.” Section 3E1.1(b) talks about the defendant “permittingthe government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently.” (Emphasis added.) If the government doesn’t take advantage of a defendant’s offer to enter a conditional plea, it’s thegovernment that hasn’t permitted itself to avoid preparing for trial and the government that hasn’t permitted itself and the court to allocate resources efficiently, not the defendant.

So remember that a conditional plea is us doing the government a favor, not it doing us a favor. And this new guidelines amendment makes that even more clear.

BLOG BULLETS:

• Instructions on affirmative defenses aren’t given automatically; you do need some evidence to get one.
• The way the cases have phrased it is that you need “more than a scintilla” of evidence for a theory of defense instruction, but that threshold is “slight indeed.”
• The court can’t weigh the evidence but must view it in the light most favorable to the defendant, the court must recognize the jury would be free to disbelieve conflicting testimony, and the evidence “may be weak, insufficient, inconsistent, or of doubtful credibility.”

NOW THE BLOG:

In my post last week on the Cortes case holding that sentencing entrapment is a defense that Apprendi requires be decided by a jury, I mentioned in passing that “as with any defense” “there must be evidence from which the jury could find” the defense or, put alternatively, “some foundation in the evidence” for the defense. This triggered a thought that it might be worth sharing some principles and standards I collected for a brief I did a year or so ago on the test for when a defendant is entitled to a jury instruction on a defense.

The case law is clear that you can’t get an instruction on the defense when it’s not a real issue in the case; for example, you don’t get an instruction on self-defense in an assault case when the whole case is about whether your guy did it and you don’t get an instruction on entrapment in a drug case when the whole case is about whether your guy knew that what he was carrying was drugs. The harder cases are where your defense really is self-defense or entrapment, but the judge thinks the evidence is weak and doesn’t want to give the jury that possible out. The cases hold that you’re not entitled to a defense instruction just because you want to argue the defense to the jury; rather, there has to be some minimum evidence from which a jury could somehow find the defense. The way the cases have phrased it is that there must be “more than a scintilla.” E.g., United States v. Morton, 999 F.2d 435, 439 (9th Cir. 1993).

Still, there’s a wealth of other language suggesting this is a very low standard. Cases recognizing the need for “more than a scintilla” of evidence have characterized that threshold as “slight indeed.” United States v. Sarno, 73 F.3d 1470, 1488 (9th Cir. 1995). There must simply be “evidence sufficient for a reasonable jury to find in [the defendant’s] favor,” Bradley v. Duncan, 315 F.3d 1091, 1098 (9th Cir. 2002) (quoting Mathews v. United States, 485 U.S. 58, 63 (1988)), or as articulated in two Supreme Court cases, “evidence [that] would permit a jury rationally to find” the defense, Hopper v. Evans, 456 U.S. 605, 611 (1982) (quoting Keeble v. United States, 412 U.S. 205, 208 (1973)). And then there are other principles that have been articulated, including the following:

1. That the government must be able to show that “the jury’s only option on the evidence” would have been to reject the defense. United States v. Hernandez, 476 F.3d 791, 800 (9th Cir. 2007) (also citing Keeble).

2. That the court may not weigh the evidence as a trier of fact would, United States v. Rivera-Alonzo, 584 F.3d 829, 834 (9th Cir. 2009) (quoting Hernandez, 476 F.3d at 800 and citingKeeble), but must “view the evidence in the light most favorable to [the defendant],” Bradley, 315 F.3d at 1096.

3. That the court should recognize that a jury would be free to disbelieve any testimony that conflicts with the defense theory.See Vickers v. Ricketts, 798 F.2d 369, 371 (9th Cir. 1986) (citingKeeble and noting that “the jury was free . . . to disbelieve” prosecution witness’s problematic testimony).

4. That the evidence advanced in support of the defense instruction may be inconsistent with other evidence. United States v. Arnt, 474 F.3d 1159, 1164 (9th Cir. 2007) (citingKeeble).

5. And, more generally, that the evidence offered in support of the defense “may be weak, insufficient, inconsistent, or of doubtful credibility.” United States v. Escobar de Bright, 742 F.2d 1196, 1198 (9th Cir. 1984) (quoting United States v. Sielaff, 615 F.2d 402, 403 (7th Cir. 1979)).

So you should get that defense instruction in most cases, and here’s some ammo to help if the judge is resisting.

BLOG BULLETS:

• The Ninth Circuit has long held that what is called “sentencing entrapment” – meaning inducement of a defendant into selling a type and/or larger quantity of drugs than he was predisposed to sell – allows a sentence below the statutory mandatory minimum for that drug type and/or quantity.
• The Ninth Circuit has just held that Apprendi requires this question of “sentencing entrapment” to be presented to a jury just like the defense of complete entrapment, so long as it affects a statutory maximum or statutory minimum.
• The test for whether an instruction is required is the same as that for any other defense – whether there is “evidence from which the jury could find,” or “some foundation in the evidence,” that the defendant was entrapped into selling a type and/or quantity of drugs that increased the statutory mandatory minimum or statutory maximum.

NOW THE BLOG:

A very interesting Ninth Circuit case combining the entrapment defense and Apprendi v. New Jersey, 530 U.S. 466 (2000) came down last week that has already gotten a lot of press out there on the blogosphere and e-mail lists, but I thought I’d add my two cents worth in a blog post. The case is United States v. Cortes, No. 12-50137 (9th Cir. Oct. 9, 2013), which can be found on Westlaw at 2013 WL 5539622 and is attached in slip opinion form here.

The issue presented in Cortes (actually one of the issues) was whether Apprendi’s rule requiring facts that increase a statutory maximum sentence – which in some instances includes drug type and/or drug quantity, see United States v. Buckland, 289 F.3d 558, 568 (9th Cir. 2002) (en banc) – to be found by a jury beyond a reasonable doubt applies to what has come to be called “sentencing entrapment.” This concept was first recognized by the Ninth Circuit in the context of the sentencing guidelines inUnited States v. Staufer, 38 F.3d 1103 (9th Cir. 1994), in which the court held that a sentencing court could depart from the (then mandatory) guideline range if the defendant was induced by the government into selling a quantity of drugs larger than he was otherwise predisposed to sell. See Staufer, 38 F.3d at 1107-08. The court subsequently went a step further in United States v. Naranjo, 52 F.3d 245 (9th Cir. 1995) and United States v. Castaneda, 94 F.3d 592 (9th Cir. 1996) and held that sentencing entrapment can justify refusing to apply the otherwise applicable statutory penalty, i.e., allows a court to go below the statutory mandatory minimum in addition to the guidelines. See Castaneda, 94 F.3d at 595; Naranjo, 52 F.3d at 251 n.14.

Then came Apprendi, which held, as we can all now recite by heart, that any fact which increases a statutory maximum sentence must be found by a jury beyond a reasonable doubt, and, more recently, Alleyne v. United States, 133 S. Ct. 2151 (2013), which finally recognized that Apprendi also applies to facts that increase only statutory mandatory minimum sentences. I’ve from time to time wondered since Apprendi – and had occasional brainstorming sessions with other attorneys about the issue – how this affects the “sentencing defense” of “sentencing entrapment.” Logically, it seems, Apprendi ought to apply to sentencing entrapment, i.e., it ought to require that a jury make the factual findings about sentencing entrapment to the extent it affects a statutory maximum and/or statutory mandatory minimum just as it requires a jury to make the original factual findings about drug type and drug quantity.

Well, I’m not the only attorney who had these thoughts, as evidenced by the Cortes case, where both the trial attorney and the appellate attorney – and, more important, a panel of Ninth Circuit judges – had the same thought. The panel there saw the same logic that some of us attorneys have seen:

We have never held that sentencing entrapment is a jury question, but the Supreme Court’s precedent and our own make clear that it must be. See United States v. Williams, 478 F. App’x 364, 366 (9th Cir. 2012) (Silverman, J., dissenting). “[W]e have held that drug types and quantities triggering higher statutory maximum sentences under 21 U.S.C. § 841(b) are jury questions under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).” Id. (citing United States v. Buckland, 289 F.3d 558, 568 (9th Cir. 2002) (en banc)). It therefore stands to reason that any defenses to those drug types and quantities must be submitted to the jury as well, when the proffered defense has the potential to change the statutory maximum or minimum sentences.

The origins of sentencing entrapment lie in cases that predate Apprendi, and that explains why it was typically addressed during sentencing. . . . Following Apprendi, however, “sentencing entrapment” is a bit of a misnomer, since the drug quantity is an element of the offense, not a sentencing enhancement or factor. A jury must decide whether the defendant would have sold, bought, or robbed that quantity but for the government manipulation or pressure. (Footnote omitted.)

Cortes, slip op. at 16-17, 2013 WL 5539622, at *7 (emphasis in original).

The court did go on to note two caveats, namely, that “the sentencing entrapment defense needs to be presented to thejury only if that reduction would affect [the defendant’s] mandatory minimum or statutory maximum sentence,” and that, as with any defense, “there must be evidence from which the jury could find” that the defendant was entrapped into dealing in a quantity that triggered a higher statutory penalty. Id, slip op. at 23-24, 2013 WL 5539622, at *10 (emphasis in original). See also id., slip op. at 21, 2013 WL 5539622, at *9 (defendant entitled to jury instruction on sentencing entrapment “if there is some foundation in the evidence that he would be subject to a lesser statutory minimum or maximum sentence if his sentencing entrapment defense were to succeed”).At the same time, it noted that the sentencing entrapment “defense” could be raised at sentencing even if there was insufficient evidence of entrapment about the statutory quantity. Id., slip op. at 24 n.4, 2013 WL 5539622, at *10 n.4.

The court also went on to offer suggested jury instruction language for the court to use on the issue. That suggested instruction is longer than I want to quote in this post, but it can be found at pages 24-25 of the linked slip opinion, or page *11 in the Westlaw version. It leaves unaddressed the burden of proof, but that burden ought to be the same as the burden of proof for complete entrapment, which is that the governmentmust disprove the defense beyond a reasonable doubt, see Ninth Circuit Model Instruction 6.2.

Cortes also leaves – or perhaps creates – some interesting questions. One is a question that’s come up in some of my brainstorming sessions with other attorneys, namely, what if one wants the judge – who knows the sentencing impact of the mandatory minimum quantities – to decide sentencing entrapment? The unpublished opinion that Cortes quotes is a dissent arguing that this isn’t allowed, but the majority opinion in that case held it was allowed, albeit in an unpublished and therefore non-precedential opinion. You could get that same benefit by simply waiving jury and having a bench trial instead of a “bench sentencing,” but that means foregoing a jury trial on any other defenses you might want to raise. An e-mail on one of the e-mail lists I’m on has pointed out that you do get the advantage of the higher beyond a reasonable doubt burden of proof that goes with Apprendi.

That then leads to another question that Cortes leaves or creates. How does the requirement of a jury finding and the higher beyond a reasonable doubt burden of proof for the drug quantities that trigger the different statutory penalties (for example, 500 grams and 5 kilograms of cocaine) interact with findings of quantities in between the statutory trigger quantities that impact the sentencing guidelines? What if the jury – or the judge if jury is waived – is not convinced beyond a reasonable doubt that the defendant was not entrapped but the judge thinks he probably wasn’t? Is the quantity the judge uses for guidelines purposes then higher than the quantity he uses for statutory penalty purposes? If that’s the result that comes about technically, you could certainly argue that this inconsistency promotes not respect, but disrespect, for the law and use that as a possible Booker variance argument. See 18 U.S.C. § 3553(a)(2)(A) (listing promoting respect for the law as one of the purposes of sentencing). This could get you some good sentencing leverage, especially when combined with the argument that, as pointed out in Kimbrough v. United States, 552 U.S. 85 (2007), the Sentencing Commission formulated the most serious drug guidelines by “look[ing] to the mandatory minimum sentences set in the [statutes], and did not take account of empirical data and national experience,”id. at 109 (internal quotation omitted).

So there’s still some questions out there, but Cortes (1) confirms what seems to logically follow from Apprendi about sentencing entrapment and (2) creates some new sentencing leverage we should be thinking about. And for even further thoughts, see Steve Kalar’s “Case ‘o the Week” post about Cortes on the Ninth Circuit Federal Public Defender blog, linked here.

BLOG BULLETS:

• There’s more district court opinions out there holding the existence of an ICE detainer doesn’t preclude a court from granting bond to a defendant who’s in the country illegally.
• Two of these opinions also consider the issue of whether ICE can then hold the person in immigration custody without removing him and hold that ICE can’t do that; it has to either promptly remove the defendant or release him on the bond.
• The Ninth Circuit has affirmed one magistrate judge decision ordering release, albeit in an unpublished order.

NOW THE BLOG:

Since I’ve recently been going back and doing updates on issues I’ve covered in the past, I thought I’d do an update in a different area. A new unpublished district court opinion just came to me across one of the e-mail lists I’m on – and also through former Deputy Federal Public Defender, now UCLA Law Professor, Ingrid Eagly, who has an interest in this area – which addresses the issue of whether ICE can use an immigration detainer to prevent the release on bond of a client who’s in the country illegally. For those of you who’ve been following this blog from the beginning, you may recall that I did a post on this topic last year. (See “Can ICE Really Ice Your Client Even When He Gets a Bond in the Criminal Case? Or Is There a Way to Melt ICE?” through the May 2012 link at the right.)

The new opinion is in a case out of Alabama and is unpublished (at least as of now), but can be found on Westlaw as United States v. Blas, No. CRIM. 13-0178-WS-C, 2013 WL 5317228 (S.D. Ala. Sept. 20, 2013), and is also attached here in slip opinion form. It’s a magistrate judge opinion stating that the government would be held in contempt if ICE or the Marshal’s office continued to hold a defendant in custody after the defendant had been granted bond in the criminal case, had been taken into custody on an ICE detainer and moved to an ICE detention facility for removal proceedings, had then been returned for the criminal prosecution pursuant to a writ of habeas corpus ad prosequendum, and was being held in United States Marshal custody pending that prosecution. The court held the government did have discretion to either deport the defendant or prosecute him, “but once the Secretary [of Homeland Security] opts for prosecution over deportation – as is clear in this case – and invokes the jurisdiction of this Court, this Court has priority or first standing and administrative proceedings must take a backseat to court proceedings until the criminal prosecution comes to an end.” Id., slip op. at 7, 2013 WL 5317228, at *3.

The court then made a number of helpful points in its conclusions of law. It noted that “‘the purpose of an ICE detainer is for ‘arresting and removing the alien[ ]’ but may not be utilized ‘for the purpose of avoiding the pretrial release provisions of the BRA [Bail Reform Act].’” Id., slip op. at 13, 2013 WL 5317228, at *5 (quotingUnited States v. Trujillo-Alvarez, 900 F. Supp. 2d 1167, 1176 (D. Ore. 2012)). The court also cited a number of cases noting what the case I discussed in my post last year had held, namely, that there is not an “ICE detainer” exception to the Bail Reform Act that precludes granting bond to a defendant on whom an ICE detainer has been placed. Id., slip op. at 13-14, 2013 WL 5317228, at *6 (citing Trujillo-Alvarez, 900 F. Supp. 2d at 1176-78; United States v. Barrera-Omana, 638 F. Supp. 2d 1108, 1111 (D. Minn. 2009); United States v. Montoya-Vasquez, 2009 WL 103596, at *5 (D. Neb. Jan. 13, 2009); and United States v. Sanchez-Martinez, No. 13-cr-00236-JLK, 2013 WL 3662871, at *4 (D. Colo. July 12, 2013)). The court also noted that the immigration statutes and regulations could be reconciled with a government decision to prosecute a defendant rather than remove him, pointing out that (1) the immigration statute setting a 90-day deadline for removal does not begin to run until, inter alia, release from detention or confinement, which must be read to mean confinement on an ultimate sentence, not pretrial confinement, see Blas, slip op. at 11-12, 2013 WL 5317228, at *5 (quoting 8 U.S.C. § 1231(a)(1)(A),(B) and Trujillo-Alvarez, 900 F. Supp. 2d at 1174, 1175); and (2) immigration regulations preclude removal of any alien who is a party in a criminal case, see Blas, slip op. at 15, at *7, 2013 WL 5317228 (quoting Trujillo-Alvarez, 900 F. Supp. 2d at 1178-79 and 8 C.F.R. §§ 215.2(a), 215.3(g)).

Especially for us in the Ninth Circuit, it’s equally worth reading the published Oregon district court opinion inTrujillo-Alvarez which the new Alabama opinion quotes and relies upon extensively. It makes – indeed, is the original source – of the points made in the Alabama opinion that are noted above, and it adds some other points as well. One of those additional points is that the possibility of a defendant failing to appear because ICE might deport him is not the sort of risk of nonappearance about which the Bail Reform Act is concerned; rather, that risk of nonappearance “must involve ‘an element of [the defendant’s own] volition.’” Trujillo-Alvarez, 900 F. Supp. 2d at 1176 (quoting United States v. Barrera-Omana, 638 F. Supp. 2d at 1111).

Then a second point, or set of points, is about what the statutory language of the Bail Reform Act suggests, similar to the argument discussed in my post last year. First, the opinion notes that the Act provides that “any person charged with an offense under the federal criminal laws shall be released pending trial: (a) on personal recognizance; (b) upon execution of an unsecured appearance bond; or (c) on a condition or combination of conditions, unless a ‘judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community.’” Trujillo-Alvarez, 900 F. Supp. 2d at 1173 (emphasis in original) (quoting 18 U.S.C. § 3142(e)(1)). Second, the opinion points to the Act’s provision expressly addressing defendants subject to immigration detainers:

In addition, in the BRA itself Congress explained how to reconcile the release and detention provisions of the statute with the administrative deportation provisions of the INA [Immigration and Nationality Act]. Under the BRA, if a judicial officer determines that a person is not a citizen of the United States and that “such person may flee or pose a danger to any other person or the community,” the judicial officer shall order the temporary detention of such a person for the purpose of allowing the government to notify “the appropriate official of the Immigration and Naturalization Service.” 18 U.S.C. § 3142(d), especially § 3142(d)(2). The BRA continues: “If the official fails or declines to take such person into custody during that period, such person shall be treated in accordance with the other provisions of this section notwithstanding the applicability of other provisions of law governing release pending trial or deportation or exclusion proceedings.” 18 U.S.C. § 3142(d). . . .

Trujillo-Alvarez, 900 F. Supp. 2d at 1179 (emphasis in original). The opinion then concludes from this that in the case before it – and presumably any other case in which a magistrate judge found bond was otherwise appropriate – “the Executive Branch has a choice to make.” Id.

It may take an alien into custody for the purpose of removing or deporting that individual or it may temporarily decline to do so while criminal proceedings are maintained against that person. If ICE takes custody of Mr. Alvarez-Trujillo for the purpose of removing or deporting him, there is little (and probably nothing) that this Court can do about that, . . . . If, however, ICE declines to take custody of Mr. Alvarez-Trujillo for the purpose of removing or deporting him, then, as Congress plainly declared in the BRA, such a person shall be treated “in accordance with the other provisions” of that law, which require his pretrial release subject to the conditions imposed by [the magistrate judge]. What neither ICE nor any other part of the Executive Branch may do, however, is hold someone in detention for the purpose of securing his appearance at a criminal trial without satisfying the requirements of the BRA.

Id.

Then one last item of interest in the Trujillo-Alvarez opinion is an update it gives us on the Castro-Inzunza case that I talked about in my post last year. The magistrate judge’s ruling in that case – which is what I quoted in the post – was apparently reversed by the district court, but that district court reversal was in turn reversed by the Ninth Circuit, albeit in an unpublished order. The Circuit ruled in that unpublished order, which is quoted in the Trujillo-Alvarez opinion, that the existence of a reinstated removal order does not, by itself, justify detention under the Bail Reform Act and “remanded to the district court to establish appropriate conditions of release, including a stay of the removal period.” Trujillo-Alvarez, 900 F. Supp. 2d at 1178 (quoting United States v. Castro-Inzunza, No. 12-30205, Dkt. 9 (9th Cir. July 23, 2012), at *2-3). So we have Ninth Circuit authority of at least a sort on our side in addition to these district court opinions.

BLOG BULLETS:

• There’s a government “watch list” for citizens crossing the border whose property (including laptop computers) they want to search.
• The few cases that exist tend to suggest this pretextual targeting probably doesn’t by itself prevent a suspicionless, warrantless search under the border search exception.
• But there may be a claim that the exception can’t be relied upon if the client has been targeted for some improper reason such as ethnicity or the exercise of First Amendment or other constitutional rights.

NOW THE BLOG:

Since I’m back on the subject of computer searches anyway, I thought I’d share a New York Times article – on the subject of computer searches at the border – that came to me through one of the appellate panels I’m on and also share the little bit of follow-up research and thinking it led me to engage in. The article, entitled “The Border Is a Back Door for U.S. Device Searches,” appeared in the September 9, 2013 on-line edition of the Times and can (at least for now) be found at http://www.nytimes.com/2013/09/10/business/the-border-is-a-back-door-for-us-device-searches.html?emc=eta1&_r=0, also directly linked here. The article is based on documents obtained in a lawsuit by one David House, a fundraiser for an organization called the Bradley Manning Support Network, which was created to raise funds for the legal defense of the army private formerly known as Bradley Manning (and known as Chelsea Manning). You may recall Manning was recently sentenced to 35 years in prison for leaking classified material related to some of our country’s debatable activities in Iraq and Afghanistan.

The government had apparently placed the fundraiser, Mr. House, on a border watch list and when Mr. House returned from a trip to Mexico, the government took advantage of the “border search” exception to seize and conduct an intensive forensic search of his laptop computer. Because the border search exception applied, it claimed it could do that without the probable cause or warrant that would have been required without the border search exception. The facts are briefly described in the Times article and described in more detail in a district court opinion denying a motion for summary judgment in the case, which is available on Westlaw, see House v. Napolitano, No. 11-10852-DJC, 2012 WL 1038816 (D. Mass. March 28, 2012).

What the documents reveal is what the Times article describes as “a largely secretive process that enables the government to create a travel alert for a person, who may not be a suspect in an investigation, then detain that individual at a border crossing and confiscate or copy any electronic devices that person is carrying.” At least for those citizens who travel internationally and use laptop computers, the government apparently just lays back when it doesn’t have probable cause and/or doesn’t want to get a search warrant and places the person on a watch list so it can use the border search exception when the citizen engages in his right to travel.

At least here in the Ninth Circuit, there is the case of United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013) (en banc), which the Times article noted and which I discussed in a couple of my past posts (see “Getting Even Braver in a Brave New World: Computer Searches Part 3,” in the August 2012 link at the right, and “Back to the Brave New World of Computer Searches: A Good (or at Least Improved) New Ninth Circuit Decision,” in the March 2013 link at the right). Cottermanprotects us a little by requiring reasonable suspicion for a forensic examination of the computer, but protects us a lot less than the Fourth Amendment probable cause and warrant requirements that apply to non-border computer searches. And it seems especially insufficient if the government’s just watching for its targets crossing the border and then using the border search exception as the subterfuge which the Times article suggests.

Hoping against hope, I turned to the law books (okay, I guess that now it’s legal research databases, not books, that I have to turn to) to see if there was any case law on this sort of outrage. On the negative, cloud side, the case law I found that was most closely on point tended to reject the idea that it was improper for the government to use the border search exception as a subterfuge for criminal investigatory purposes. See, e.g., United States v. Irving, 452 F.3d 110, 123 (2d Cir. 2006); United States v. Tsai, 282 F.3d 690, 693 (9th Cir. 2002); United States v. Wallace, No. 1:12-CR-00230-TWT-LTW, 2013 WL 1707904, at *5 (N.D. Ga. March 21, 2013). But on the silver lining side, (1) there was less case law than I thought there might be, and (2) the cases dealt with more case-specific claims of ad hoc subterfuge, not the more generalized watch list practice and strategy suggested by the Times article and the district court opinion in the case.

I then started thinking about arguments we might make when a border search was pretextual and that pretext was aggravated by being tied to a common government practice or strategy. The first case which comes to mind when one hears “pretext” in the context of the Fourth Amendment is Whren v. United States, 517 U.S. 806 (1996), in which the Supreme Court held that it doesn’t matter if a traffic stop for a traffic violation was a complete pretext for the cop’s subjective investigatory motive. But there are two important caveats in Whren. First, as the Supreme Court explained in the later case of City of Indianapolis v. Edmond, 531 U.S. 32 (2000):

We observed [in Whren] that our prior cases “foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved.” Id. at 813, 116 S. Ct. 1769. In so holding, we expressly distinguished cases where we had addressed the validity of searches conducted in the absence of probable cause. See id. at 811-812, 116 S. Ct. 1769 (distinguishing Florida v. Wells, 495 U.S. 1, 4, 110 S. Ct. 1632, 109 L. Ed. 2d 1 (1990) (stating that “an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence), Colorado v. Bertine, 479 U.S. 367, 372, 107 S. Ct. 738, 93 L. Ed. 2d 739 (1987) (suggesting that the absence of bad faith and the lack of a purely investigative purpose were relevant to the validity of an inventory search), and [New York v.] Burger, 482 U.S. [691,] 716-717, n. 27, 107 S. Ct. 2636 [(1987)] (observing that a valid administrative inspection conducted with neither a warrant nor probable cause did not appear to be a pretext for gathering evidence of violations of the penal laws)).

Whren, 531 U.S. at 405. A border search is of course another type of search conducted in the absence of probable cause, soWhren may be limited in its application to border searches as well.

Second, Whren recognized that officers’ motivations for making a stop – or, presumably, conducting a search – might violate other constitutional provisions. See id., 517 U.S. at 813. The specific example it offered was “selective enforcement of the law based on considerations such as race,” which would trigger the protections of the Equal Protection Clause. Id. But this is not the only possibility, as illustrated by Mr. House’s lawsuit. The district court opinion in his case that I cite above found he had stated a claim that the border search of his computer was unconstitutional because it had been based on exercise of his First Amendment right to freedom of association, in the form of his membership in the Bradley Manning Support Network. See House v. Napolitano, 2012 WL 1038816, at *10-13. So we can think about whether our clients are being targeted not just because of their race but also because of the groups of which they are members, the statements they have made or joined in making, and/or the books and/or other materials they have read or written.

As an aside, there’s also one little other factoid of interest in theNew York Times article that relates to the subject of last week’s post on protocols. The article suggested there was a protocol used for the search, by describing the search as “using 183 keywords that turned up more than 26,000 files.” So we have another example of the use of a protocol in conducting a search. A backup challenge to the search if the court had appliedCotterman (which was decided after the district court’s opinion) but somehow found there was reasonable suspicion to look for some evidence on Mr. House’s computer would have been an inquiry into whether these 183 keywords swept too broadly and stepped outside the universe of files for which there was reasonable suspicion.

Then one last thought: Guess we might want to think twice about going on foreign trips with our laptops, eh? Isn’t it sad what our own government makes us worry about? Even when they’re shutting everything else in the government down?

BLOG BULLETS:

• Remember the argument that a computer search should be limited by an appropriate search protocol where possible, so files not within the scope of the search don’t get examined.
• A recent Second Circuit case vacated the denial of a suppression motion and remanded for a further hearing on “whether the forensic examiner’s search was even directed – much less properly limited – to those files that would substantiate” the suspected offense conduct.
• The Second Circuit also read Ninth Circuit case law as “requir[ing] specific search protocols or minimization undertakings as basic predicates for upholding digital search warrants.”

NOW THE BLOG:

This week, I want to go back to another favorite topic of mine – computer searches (yes, that “Brave New World”) – and touch on a case that came to my attention a couple of months back. It’s a Second Circuit case, not a Ninth Circuit case, but it’s an interesting holding reminding us that a government agent or expert who’s searching a computer for some particular type of evidence can’t just freely explore everything and anything in the computer. You may recall that I flagged this issue of whether there’s a need for a search “protocol” – in the actual conduct of the search, if not specified ahead of time in the warrant – in some of my prior posts on computer searches. (See my first post in this area, “The Brave New Fourth Amendment World of Computer Searches,” in the July 2012 link at the right, and a later post, “Another Visit to the Brave New World of Computer Searches,” in the January 2013 link at the right.)

The recent Second Circuit case that came to my attention isUnited States v. Galpin, 720 F.3d 436 (2d Cir. 2013). It’s a somewhat complicated case factually, but the basic facts are that (1) the defendant was suspected of child abuse, or at least soliciting minors for child abuse, and (2) there was probable cause to think that some evidence was on his computer and so probable cause to issue a warrant allowing some search, but (3) the evidence there was probable cause to think was on the computer was a rather narrow category of information and the warrant swept much more broadly than that narrow category. The broad search authorized by the warrant revealed – you guessed it – child pornography, and the client ended up in federal court and sentenced to 572 months in prison (which, if I’m dividing right, equals 47-2/3 years).

One of the issues presented when the reviewing courts invalidated the search warrant was whether everything the agents looked at in conducting the overly broad search authorized by the warrant would have been seen in plain view even during a properly limited, more narrow search. The district court ruled that the agents would have been required and/or allowed to open all of the computer files in conducting even the more limited search for which there was probable cause. But the court of appeals questioned this and remanded for a further hearing. In so doing, it considered the question of search protocols and indicated that the lower court should consider the impact of search protocols in reconsidering its plain view rationale.

The Second Circuit began by reading the Ninth Circuit’s computer search cases – in particular, United States v. Comprehensive Drug Testing, 621 F.3d 1162 (9th Cir. 2010) (en banc) – as “requir[ing] specific search protocols or minimization undertakings as basic predicates for upholding digital search warrants.” Galpin, 720 F.3d at 451. It then explained in considering the effect of search protocols on use of the plain view exception in the case before it:

Unlike the Ninth Circuit, we have not required specific search protocols or minimization undertakings as basic predicates for upholding digital search warrants, and we do not impose any rigid requirements in that regard at this juncture. See United States v. Comprehensive Drug Testing, 621 F.3d 1162 (9th Cir. 2010) (en banc). However, the district court’s review of the plain view issue should take into account the degree, if any, to which digital search protocols target information outside the scope of the valid portion of the warrant. To the extent such search methods are used, the plain view exception is not available.

As the record is currently constituted, there is little indication as to whether the forensic examiner’s search was even directed – much less properly limited – to those files that would substantiate a registration violation [the only evidence for which there was probable cause to search]. The district court held that the redacted warrant authorized the forensic examiner to open and seize any image file because digital pictures “would be relevant to whether it was actually defendant who was using an unregistered user name or an e-mail account.” The district court’s speculation as to the probative value of the digital pictures is unsupported by the record developed below and appears somewhat strained, . . . . The record indicates, moreover, that the investigator opened and played video image files in order to determine whether they contained sexual content. Nothing in the record is indicative of any possible evidentiary connection between the content of video files and the possession of an unregistered internet service provider account, internet communication identifier, or e-mail address. On remand, the district court must determine whether a search limited to evidence of a registration violation would have necessitated the opening of image files or the playing of video files.

Galpin, 720 F.3d at 451-52.

So we have here another example of a case (for the first example, see the district court case discussed in the January 2013 post noted above, “Another Visit to the Brave New World of Computer Searches”) recognizing how search protocols can and should be used to confine computer searches to the files that might actually have the evidence for which there’s probable cause. Keep these cases – and more important, the general issue – in mind when considering a computer search, especially one that turns up evidence other than what the warrant was aimed at.

BLOG BULLETS:

• Remember that convictions under the California drug statutes don’t qualify as drug trafficking offenses under the straight categorical approach because the California controlled substance schedules include substances that aren’t in the federal controlled substance schedules.
• The type of controlled substance may not be an element on which jurors must unanimously agree under California law.
• If the type of controlled substance isn’t an element on which jurors must unanimously agree, then the statute isn’t a divisible statute under Descamps and applying the modified categorical approach to California drug convictions is impermissible.

NOW THE BLOG:

The general Descamps (Descamps v. United States, 133 S. Ct. 2276 (2013)) issue I talked about last week has come up in a specific context in recent litigation in the Central District of California – and, I think, the Southern District of California – over application of the modified categorical approach to the California drug statutes. You may recall my prior posts aboutUnited States v. Leal–Vega, 680 F.3d 1160 (9th Cir. 2012) (see my past posts – “Who Controls What’s a Controlled Substance?,” posted April 11, 2012, and “Some Good News and Some Bad News on Who Controls What’s a Controlled Substance,” posted June 5, 2012 – through the links at the right), in which the Ninth Circuit held that (1) convictions under the California drug statutes don’t qualify as federal “drug trafficking offenses” under the categorical approach because the California controlled substance schedules include substances that aren’t included in the federal controlled substance schedules, see id. at 1167, but (2) the modified categorical approach, which the Ninth Circuit at that time applied to even non-divisible statutes, could be used to bring the conviction within the federal “drug trafficking offense” definition, see id. at 1167-69.

A couple of issues are presented when considering whetherDescamps applies to the California statutes. First, there’s an issue – which I’m not sure has been raised yet – about whether a statute can be made divisible through its incorporation of another statute. The California drug statutes don’t themselves contain a list of types of controlled substances but reference other statutes which contain such a list. See, e.g., Cal. Health and Safety Code § 11351. This raises the question of whether such an incorporation by reference can make a statute divisible. Perhaps it can, but we won’t know unless and until we raise the issue.

Then the second issue, which has been litigated – and goes back to the general issue discussed in last week’s post – is whether the list of controlled substances is a list of alternative “elements” or merely a list of “alternative means.” As a test of that, does the jury have to unanimously find the type of controlled substance, or can the jurors disagree on the particular substance so long as they all agree it was one of the controlled substances in the list? For some sample briefing on the issue, see the sentencing brief attached here, written by one of our great deputy federal public defenders in this district, Firdaus Dordi, but I’ll summarize and add my two cents worth.

Perhaps surprisingly, but perhaps not, there isn’t any California case directly on point. (Remember you have to go to the state courts’ interpretation of their statutes in applying the categorical and modified categorical approaches.) But there are some cases that are suggestive. To begin, there are two cases where the defendants were charged with being under the influence of a controlled substance – Ross v. Municipal Court, 49 Cal. App. 3d 575 (1975) and Sallas v. Municipal Court, 86 Cal. App. 3d 737 (1978). Those cases strongly suggest that there does not need to be a unanimous finding of a specific controlled substance. The issue actually presented in those cases – on which the two courts disagreed – was whether an under the influence of a controlled substance complaint had to allege the controlled substance which the defendant was under the influence of. Rossheld the complaint didn’t need to allege the controlled substance, though the prosecution did need to provide prompt discovery. See id., 49 Cal. App. 3d at 579. Sallas, in contrast, held the complaint did need to allege the controlled substance,see id., 86 Cal. App. 3d at 742-43, though it indicated the complaint could allege more than one substance.

More noteworthy for our purposes is that both courts acknowledged and seemed to accept the practical impossibility of identifying a precise substance. The court in Ross noted “the obvious reason . . . that [the People] had no reasonably certain way of knowing what that substance was as they do have in possession and sale cases from chemical tests of the substance involved,” id., 49 Cal. App. 3d at 578, which would seem to apply to proof at trial just as much as allegations in the complaint. AndSallas qualified its holding with an explanation that also applies as equally to proof at trial as allegations in a complaint:

We do not hold, or suggest, that in such prosecutions the charge must pinpoint one of the many controlled substances of the statute. It may be that among them are families, or classes, or chemical groupings, of such substances with substantially the same qualities, symptoms and behavioral effects, and that constitutional demands would be satisfied by charging use or abuse of one of the substances of that family, class or group.

Id., 86 Cal. App. 3d at 744. This reasoning, like the reasoning inRoss, would seem to apply equally to proof at trial. These cases thus clearly imply, if they do not hold, that the prosecution does not need to prove – and the jury does not need to unanimously find – the precise controlled substance which the defendant is under the influence of.

One could argue that these under the influence cases don’t reflect how the California courts would rule in sale or possession for sale cases where the prosecutors have the actual substance to test. But there is dictum in at least one case, albeit a simple possession case. The case is People v. Romero, 55 Cal. App. 4th 147 (1997), and it’s actually noteworthy for two reasons. First, it notes the “pleading requirement” in Sallas and Ross without any suggestion that those cases are distinguishable because they are under the influence cases. Second, Romero then states that “this pleading requirement does not transmute the offense of possession of a controlled substance into as many different offenses as there are controlled substances.” Id. at 156. This statement that the statute does not create “different offenses” stands in direct contrast to language from Descamps, which I quoted in my post last week, that a divisible statute “effectively creates ‘several different . . . crimes.’” Descamps, 133 S. Ct. at 2285 (quoting Nijhawan v. Holder, 557 U.S. 29, 41 (2009)) (emphasis added). See also Descamps, 133 S. Ct. at 2285 n.2 (stating that Taylor v. United States, 495 U.S. 575 (1990),Shepard v. United States, 544 U.S. 13 (2005), and Johnson v. United States, 559 U.S. 133 (2010) all rested on “the explicit premise” that the underlying state statutes “contain[ed] statutory phrases that cover several different . . . crimes, not several different methods of committing one offense” (internal quotations omitted)).

Though federal case law on federal statutes does not control the rule for California statutes, it is interesting to note that there is dictum suggesting unanimity on the substance is not required in a federal prosecution either. The Ninth Circuit stated in United States v. Hunt, 656 F.3d 906 (9th Cir. 2011) that “drug quantity and type are not formal elements of the offenses set out in 21 U.S.C. § 841” and that “a defendant can plead guilty to 21 U.S.C. § 841(a) without admitting the type of drug.” Hunt, 656 F.3d at 912 (citing United States v. Thomas, 355 F.3d 1191, 1195, 1198 (9th Cir. 2004)). Jury findings and/or a defendant admission may be required in some cases, but that’s only because drug type sometimes affects the maximum sentence and thereby triggers the rule of Apprendi v. New Jersey, 530 U.S. 466 (2000). As the Ninth Circuit explained in United States v. Toliver, 351 F.3d 423 (9th Cir. 2003):

The drug quantity and type determinations are [in some instances] the “functional equivalent[s] of an element of a greater offense,” because they are facts that have the potential to increase the statutory maximum sentence.Apprendi, 530 U.S. at 494 n.19, 120 S. Ct. 2348. For purposes of Apprendi, then, these facts must be submitted to the jury, . . . .

There is a difference, however, between a formal offense “element” . . . and the “functional equivalent of an element” under Apprendi. We label a fact an “element” under Apprendi only because it has a particular effect. . . .

Indeed, drug quantity and type need only be treated as “functional equivalent[s]” of formal elements of an offense when a particular drug type or quantity finding would expose a defendant to an increased maximum statutory sentence, as they do not constitute formal elements of separate and distinct offenses under section 841(b)(1). When drug quantity or type would not have such an effect, they need not be accorded this special treatment.

Toliver, 351 F.3d at 430 (emphasis added). Thus, even federal law may not treat drug type as an “element” which the defendant must admit or the jury must unanimously agree upon, at least where it doesn’t affect the statutory maximum sentence.

The bottom line is there’s a real interesting and viable argument that could make a big difference in a lot of our cases. So get out there and push it.