Criminal Appeal

Ninth Circuit Reverses Drug Conviction

A government-friendly panel of the Ninth Circuit held today that it violates the 6th Amendment to restrict communication between a defense attorney and his or her client during an overnight trial recess.  (USA v. Sandoval-Mendoza, No. 04-10118) (Goodwin, O'Scannlain, Kleinfeld).  The case involves a defendant who testified that he was mentally impaired by a large brain tumor and unfairly entrapped by undercover officers.  When the court broke for the night in the middle of the defendant's testimony, defense counsel was ordered not to discuss his client's testimony with his client during the recess in order to avoid coaching. Other topics of conversation were allowed.  The Ninth Circuit held that the district court's communication restriction violated Geders v. United States, 425 U.S. 80 (1976), even though that case involved a complete ban on communication between counsel and client during an overnight recess.  The Ninth Circuit also concluded that the trial court improperly excluded expert testimony on the defendant's brain tumor.  Marc Zilversmit represented the defendant at trial and on appeal.

Ikuta's First Opinion

Writing her first published opinion as a Ninth Circuit Judge, Sandra Ikuta affirmed a 12-year federal sentence for five counts of bank robbery and one count of attempted bank robbery.  (USA v. Baldrich, No. 50676) (Tashima, Bea, Ikuta).  The court rejected claims that the district court violated due process by refusing to disclose the probation officer's confidential sentencing recommendation and erred in calculating the defendant's offense level under the U.S. Sentencing Guidelines.

Musladin Coverage

How Appealing (here) and SCOTUSblog (here) have links to press coverage on yesterday's AEDPA decision in Musladin.

As I expected (see previous post), the Court indeed is struggling with the meaning of its dicta in habeas cases. And, in deciding the case under AEPDA the Court did not answer the constitutional question of whether the spectators' buttons with pictures of the victim prejudiced Musladin. For an interesting dialogue on this and related question check out the comments on Orin Kerr's post on the case here.

Finally, an L.A. Times opinion piece today uses Musladin to lambast the Ninth Circuit's predisposition to second-guess state courts in capital cases. As the sub-title of the piece makes clear, the L.A. Times thinks Musladin was a capital case: "Supreme Court rebuff in death penalty case points to a recurring problem with the appeals panel." This is wrong; Musladin is serving a sentence of 32 years to life. George Will made the same mistake in an op-ed a month ago.

Update: Sometime this afternoon, the L.A. Times revised the sub-title of its opinion piece to read "Supreme Court rebuff in murder case points to a recurring problem with the appeals panel."

SCOTUS Reverse in Musladin (Victims Photo on Buttons in Word in Courtroom)

SCOTUS has preliminary post on the Supreme Court's ruling this morning in Musladin v. Carey, no. 05-785. The Court, in an opinion written by Justice Thomas, reversed the Ninth Circuit, holding that no relief was available under AEDPA. Justice Thomas apparently put much weight on the fact that the conduct at issue was by spectators and the court had not previously addressed such private courtroom conduct. Apparently three justice wrote separate opinions about private spectator conduct.

This opinion may indeed exemplify the effect AEDPA has on the development of substantive criminal law. While the case sets a precedent for cases presenting similar claims on federal habeas review, it does not decide the ultimate constitutional due process question. The Court would have to review a case on direct review in order to clearly decide the due process question.

Indeed, at oral argument Justice Stevens queried whether what it would say about the requirements of due process could be dicta if a majority agrees that no relief was available under AEDPA:

May I ask this question? Supposing we all thought that this practice in this particular case deprived the defendant of a fair trial, but we also agreed with you that AEDPA prevents us from announcing such a judgment. What if we wrote an opinion saying it is perfectly clear there was a constitutional violation here, but Congress has taken away our power to reverse it. [Para.] Then a year from now, the same case arises. Could we follow -- could the district court follow our dicta or could it -- would it be constrained to say we don't know what the Supreme Court might do?

Caveat: I haven't read the opinion yet and won't be able to until this evening.

Cert Grant: Does Brecht Apply When the State Court Failed to Apply Chapman?

Ironically, had I written my previous post a day earlier I might have included another issue on my list of cert-worthy issues overlooked by the Court. But yesterday the Court granted certiorari in a case, Fry v. Pliler, no. 06-5247, presenting the question of whether the  Brecht v. Abrahamson, 507 U.S. 619 (1993) federal habeas prejudice standard applies when the state court failed to recognize the constitutional nature of the error and did not review the error for prejudice under the Chapman standard applicable to most federal constitutional errors.

The Split. The split on this issue has existed for years; I raised the issue in a cert petition in 2001. Most of the federal circuits had held that Brecht applies even when the state court failed to apply Chapman, with only the Eighth Circuit and a couple district courts holding otherwise. But, as I wrote in my 2001 cert petition, federal judges were more deeply divided on the issue than that split reflected: three-judge panels in the Fifth and Tenth Circuits, as well as a dissenting judge in the Eleventh Circuit were convinced that their decisions are incorrect.

The Reasoning. The weakness with the majority rule is the logic of Brecht doesn't apply when the state court failed to apply Chapman. As Chief Justice Rehnquist wrote in Brecht, “it scarcely seems logical to require federal habeas corpus courts to engage in the identical approach to harmless-error review that Chapman requires state courts to engage in on direct review.” But that reasoning does not apply when the state court did not review the error for prejudice under Chapman.

Background on Fry. In the Ninth Circuit, the majority (Judges Dorothy Nelson and Bea) tersely rejected Fry's claim that Brecht should not apply because the state court failed to apply it:

Fry contends that this court should not apply the Brecht harmless error standard because the state appellate court failed to conduct a meaningful prejudice review. We have held, however, that the Brecht standard applies uniformly in all federal habeas corpus cases under § 2254 regardless of the error standard, if any, applied by the state court. Bains v. Cambra, 204 F.3d 964, 976 (9th Cir. 2000); see also Inthavong v. LaMarque, 420 F.3d 1055, 1059 (9th Cir. 2005).

Judge Rawlinson dissented, on the ground that she would hold that the error was not harmless under Brecht. Fry was convicted of murder in Solano County California. The California Court of Appeal (1st Dist., Div. 3) affirmed his conviction in an unpublished decision filed on March 30, 2000.  (People v. Fry, no. A072396.) Unfortunately, that decision was issued before the court began making all unpublished decisions available electronically. Fry is represented by Victor Haltom of Sacramento, California.

Trivia: The Seventh Circuit case touching on this issue was Tyson v. Trigg, 50 F.3d 436, 446-47 (7th Cir. 1995), cert. denied, 516 U.S. 1041 (1996), Mike Tyson's federal habeas appeal.

 

Cert-Worthy Issues Being Overlooked?

Court observers, including Linda Greenhouse at the New York Times and the folks at SCOTUSblog (Marty Lederman and Tom Goldstein) have been taking note of the shrinking SCOTUS docket. Criminal law practitioners and scholars have responded, noting cert-worthy issues that have, thus far, been overlooked.

Steve Sady, the Chief Deputy FPD in Oregon, notes three issues: "1) the three-way Circuit split about denying Fourth Amendment rights to persons charged with Illegal Reentry .... ; 2) the Bureau of Prisons’ interpretation of the federal good time statute ...; and 3) any of the many issues where the Circuit courts are refusing to follow the Supreme Court’s holdings in Haley and Shepard that the Doctrine of Constitutional Avoidance must be applied in interpreting non-specific statutes ... on the scope and application of Almendarez-Torres and the post-Apprendi Sixth Amendment cases." And Professor Doug Berman at Sentencing Law and Policy has suggested several sentencing-related issues, particularly questions arising from Booker (here and here).

I can think of four undecided criminal justice issues that need the court's attention:

• whether use of prior bad acts for the sole purpose of showing the defendant has a propensity to commit the charged crime violates due process;
• the scope of the forfeiture by wrongdoing exception to Crawford's bar against the admission of testimonial hearsay of unavailable witnesses (the California Supreme Court is considering this issue and heard argument on it this week - see my post here);
• whether the Strickland standard for ineffective assistance of counsel applies to review of counsel's performance in connection with non-capital sentencing (last Spring, the Ninth Circuit held that the applicability of Strickland to non-capital sentencing is not clearly established for purposes of AEDPA - see my post here);
• whether the holding of Shepard (decided under the doctrine of avoiding constitutional doubt) is constitutionally compelled (this question is presented in a pending cert petition in McGee v. California, no. 06-6088 - see my post here).

That's my two cents.

When is Driving/Taking a Vehicle (Cal.Veh.Code 10851) a Deportable Theft Offense?

Yesterday, the U.S. Supreme Court heard argument in Gonzales v. Duenas-Alvarez, no. 05-1629, an immigration case presenting the question of whether a violation of section 10851 of California's Vehicle Code is a deportable theft offense. SCOTUSblog has several posts on the case, including an argument preview and an argument recap. The argument (transcript here) covered much broader ground than the question presented, touching on the different ways a defendant could be convicted of a violation of section 10851 other than as a principal in the theft, e.g. as an accessory, as a driver of the vehicle, or as an aider and abettor convicted under a natural and probable consequences theory.

Cal. Supremes to Hear Argument today on Forfeiture-by-Wrongdoing Exception to Crawford

The California Supreme Court (sitting in L.A.) will hear arguments in six cases today. On the calendar are three criminal cases, including People v. Giles, no. S129852, in which the Court will decide whether a forfeiture-by-wrongdoing exception applies to confrontation clause claims, i.e. does a criminal defendant forfeit a confrontation clause objection to an unavailable declarant's out-of-court statement when the the declarant is unavailable due to the defendant's wrongful conduct. The Court will consider the more specific question of whether the exception applies when it is the very conduct for which the defendant is on trial that forms the basis for the forfeiture, i.e. the defendant is on trial for the murder of the declarant and it's the homicide that made the declarant unavailable. In Crawford itself and last term in Davis v. Washington, no. 05-5224 (June 19, 2006), SCOTUS made clear that such a forfeiture doctrine does apply, but the Court did not address the difficulties of litigating the forfeiture question when doing so requires the defendant to defend the criminal charges themselves.

The state is represented by Deputy Attorney General Russell A. Lehman; Marilyn G. Burkhardt represents Giles.

There are two other criminal cases on the calendar today:

• People v. Leon, S137137: (1) Does a defendant have a legitimate expectation of privacy in telephone conversations on a telephone procured under a false name and was used for criminal purposes? (2) Does Cal. Penal Code section 629.72 create a broader right to challenge the admission of communications intercepted by such a wiretap than that afforded by the Fourth Amendment? (3) What showing of necessity is required for issuance of a wiretap in conspiracy cases?
• People v. Navarro (Horacio), S132666: If evidence was insufficient to support attempted kidnapping during a carjacking, can Court of Appeal modify the judgment to reflect conviction of two lesser included offenses—attempted kidnapping and attempted carjacking—or only one such offense?