CJE Wire: Case Law Updates

Citizens for Judicial Excellence publishes CJE Wire: Case Law Updates each month to help keep its members informed about recent court decisions that may impact their law practices. CJE Wire is prepared by CJE member Dena Alo-Colbeck. The Law Offices of Dena Alo-Colbeck focuses on research, brief writing, and trial preparation for criminal defense litigators. To learn more how she may be of assistance in trial preparation, pre-trial motions, or application of any of the following new case law, please contact her at (253) 318-1758 or alocolbecklaw@gmail.com.

CJE Wire: Case Law Updates — 2017 February 17

 


 Washington State Courts


Division I Court of Appeals

State v. Bacon: The Court found that the juvenile court does not have authority to suspend dispositions due to a manifest injustice of the length of the disposition. Evan Bacon pleaded guilty to second degree robbery. His prior record dictated a standard sentencing range of 52 to 65 weeks. Mr. Bacon asked for a declaration of manifest injustice, noting that he was doing better, back in school, and living at home. The court noted that Mr. Bacon had begun to make important changes in his life, but that he was still a “threat to the community.” However, wanting to keep youth in the community when possible, the court granted a manifest injustice, imposed a disposition of 65 weeks’ confinement, and suspended it, placing Mr. Bacon instead on community supervision. The State appealed. The Court found that the Juvenile Justice Act gives juvenile courts limited authority to suspend dispositions, but that a manifest injustice was not one of the listed reasons allowing such suspension. Instead, the Court found, if the juvenile court finds that a standard range disposition will “effectuate a manifest injustice the court shall impose a disposition outside the standard range.” RCW 13.40.0357 (option D). http://www.courts.wa.gov/opinions/pdf/742337.pdf

 


Division II Court of Appeals

State v. Froelich: Martha Froelich was involved in a two-car accident at a busy intersection on SR 3. After the accident, the truck she was driving came to rest on the side of the road, out of traffic. When troopers arrived, they questioned Ms. Froelich about the registration of the car, which she admitted was not hers, and then regarding her drug use. When another trooper arrived to administer field tests, Ms. Froelich requested an ambulance. The troopers followed her to the hospital and ultimately determined she was not impaired. Before she left, however, officers failed to discuss the disposition of the vehicle, or inquire about her ability to have someone come get the car. The officer later determined that the vehicle was a traffic hazard because it impeded visibility, but also believed it would be impossible to remove the car without a tow truck. The officer further could see valuables in plain view inside the vehicle, and determined that he could not leave the car unsecured in its present location. Because of this, but without discussing other options with Ms. Froelich, the officer impounded the vehicle and began an impoundment inventory. During the search, the officer located white powder which he believed was methamphetamines. He stopped the search, applied for a warrant, and completed the search, confirming the nature of the drug.   In the subsequent motion to suppress the trial court found, and the appellate court agreed, that the vehicle was not properly impounded under the officer’s community caretaking function, and that the drugs found in the resulting inventory search must be suppressed. The court reasoned that for the impoundment to be lawful, the officer was required to consider whether Ms. Froelich, a spouse, relative, or friend could arrange to move the car before it was impounded. As the officer did not offer Ms. Froelich this option, the impoundment was illegal.

Dissenting, Judge Melnick argued that he officer acted lawfully and responsibly in impounding Ms. Froelich’s vehicle. The dissent argued that the majority’s reliance on the obligation of the officer to determine whether friends or a spouse is available to move the vehicle was misplaced. “The police are neither required to ask the driver, in the circumstance of this case, about the availability of someone else to remove the car nor are they required to call people who are not at the scene of the vehicle impound and wait for them to respond.” The dissent noted that Ms. Froelich voluntarily left the scene and was not present to authorize another person to move the vehicle, the vehicle was a traffic hazard, and could only be moved with a tow truck. Further, though it was not part of the trial court’s findings of fact, the dissent argued that the officer did consider alternatives to impoundment. Therefore, the dissent argued that the impoundment and inventory search was lawful and should have been upheld. http://www.courts.wa.gov/opinions/pdf/D2%2048026-3-II%20Published%20Opinion.pdf

 

 

CJE Wire: Case Law Updates — 2017 February 10

 


Federal Law


Ninth Circuit Court of Appeals

United States v. Loucious: The panel reversed the district court’s order suppressing the defendant’s statements in a case in which the defendant argued that the Miranda warnings he received were constitutionally deficient because they did not tell him of his right to consult with an attorney before questioning. Before the start of custodial interrogation, the defendant received warnings informing him he had the right to remain silent; he had the right to the presence of an attorney during questioning; and that if he could not afford an attorney, an attorney would be appointed before questioning. The panel explained that Miranda warnings need not follow a precise formulation, and held that the warnings given to the defendant adequately conveyed that he had the right to consult with an attorney before questioning even though they did not explicitly inform him of that right. The panel wrote that this right was reasonably to be inferred. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/07/16-10121.pdf


United States v. Peralta-Sanchez: The panel affirmed a conviction and sentence for illegal entry, and the revocation of supervised release, in a case in which the defendant argued that his expedited removal was fundamentally unfair, and cannot serve as the basis of the illegal reentry count, because he was neither entitled to hire counsel nor advised of his right to apply for withdrawal of his application for admission. The panel held that the defendant had no Fifth Amendment due process right to hire counsel in the expedited removal proceeding under 8 U.S.C. § 1225, and that he cannot demonstrate prejudice from the failure to notify him of the right to withdraw his application for admission under 8 U.S.C. § 1225(a)(4). As a result, the panel concluded that the defendant’s 2012 expedited removal could be used as a predicate for his illegal reentry conviction, and affirmed the denial of the defendant’s motion to dismiss the indictment and the subsequent judgment and sentence as well as the revocation of his supervised release.

Dissenting, Judge Pregerson would hold that there is a due process right to counsel during expedited removal proceedings. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/07/14-50393.pdf

 

 


 Washington State Courts


Division I Court of Appeals

Personal Restraint of Orantes: The Court found that Mr. Orantes’ collateral challenge to his 2006 judgment and sentence based on a guilty plea for which he claimed he was not accurately advised of the immigration consequences was timely due to the 2010 decision in Padilla v. Kentucky. That decision constituted a “significant change in the law” “material to” Mr. Orantes’ conviction. The Court further found that because the Tsai decision finding Padilla retroactive was an “intervening change[ ] in case law” after Mr. Orantes’s first challenge, his second challenge can proceed. The case centers around a second misdemeanor to which Mr. Orantes pled in 2006 which, under federal law, rendered him ineligible for renewal of his Temporary Protected Status (TPS) and subject to deportation. Mr. Orantes was not advised that the plea would affect his immigration status until the government declined to renew his TPS. The Court reasoned that pre-Padilla, the Court would have rejected Mr. Orantes’ claim because it was based on bad advice by counsel, rather than a complete failure to advise Mr. Orantes regarding immigration consequences. The Court held that Padilla erased that line, and thus created a significant change in the law, and remanded for a reference hearing on the merits of Mr. Orantes’ ineffective assistance of counsel claim. http://www.courts.wa.gov/opinions/pdf/710826.pdf

 

 

 

 

CJE Wire: Case Law Updates — 2017 February 3

 


Federal Law


Ninth Circuit Court of Appeals

United States v. Laursen: The panel affirmed convictions for production and possession of child pornography in violation of 18 U.S.C. §§ 2251(a) and 2252A. The panel held that the government sufficiently established that the defendant, a 45-year-old man, “used” J.B., a 16-year-old girl, to produce sexually explicit images, as required for a conviction under § 2251(a). The panel wrote that the defendant’s theory that he was not the man depicted in the photographs was unconvincing. The panel rejected the defendant’s contentions that §§ 2251 and 2252A are unconstitutionally vague and overbroad, violate the Tenth Amendment, and exceed Congress’ power under the Commerce Clause. The panel specifically rejected the defendant’s argument that the legality of his relationship with a 16-year-old under Washington state law precluded prosecution under federal law. The panel held that the district court’s evidentiary rulings were sound.

Judge Hawkins concurred. To prevent the statute from being overbroad and unconstitutionally vague, he would require the government to show some taking unfair advantage of the minor to establish “uses” under the statute, but wrote that there were sufficient indicia in this case of a coercive or exploitative element to satisfy the narrower definition he proposes. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/01/30/14-30244.pdf


United States v. Niebla-Torres: The panel affirmed a conviction for conspiracy to possess with intent to distribute marijuana, in a case in which the defendant argued that the district court erred by denying his motion for a judgment of acquittal because the government did not introduce sufficient evidence to corroborate his confession under the corpus delicti doctrine. The panel held that the government satisfied both prongs of the corpus delicti test set forth in United States v. Lopez Alvarez, 970 F.2d 583 (9th Cir. 1992), by introducing sufficient corroborating evidence that the core conduct of the defendant’s crime actually occurred, and sufficient evidence to corroborate the reliability of the videotaped confession and the authenticity of the defendant’s confessed involvement in the conspiracy. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/01/31/15-10261.pdf


Dixon v. Baker: The panel reversed the district court’s judgment dismissing Nevada state prisoner Terry Dixon’s habeas corpus petition and remanded with instructions to enter a stay while Mr. Dixon pursues his unexhausted claims in state court. The panel held that because Mr. Dixon’s petition was only partially exhausted, he should have been allowed to delete the unexhausted claims and proceed on the exhausted claims if his motion to stay and abey his federal case were denied. The panel did not remand the case, however, because the district court should have granted the motion for a stay since (1) Mr. Dixon, who was not represented by counsel in his state post-conviction proceeding, has established good cause for his failure to exhaust; (2) at least one of his unexhausted claims is not plainly meritless; and (3) the state concedes that he has not engaged in intentionally dilatory litigation tactics. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/02/02/14-16644.pdf

 

 


 Washington State Courts


Washington State Supreme Court

Wiggins, and Gonzales, the Court upheld Mr. Clark’s conviction for premeditated first degree murder, finding that the proposed expert testimony regarding Mr. Clark’s intellectual deficits was properly excluded by the trial court. The Court found that the testimony was not relevant to contesting the State’s mens rea evidence and to helping the jury understand Mr. Clark’s affect while testifying. The Court further found that this issue was addressed by the admission of relevant observation testimony about Mr. Clark’s education history, Social Security disability benefits, affect, and actions on the day of the murder. The Court reasoned that Mr. Clark purposefully did not assert or plead diminished capacity, and the proposed expert testimony was not relevant to any other purpose. The Court concluded that “expert opinion testimony that a defendant has a mental disorder that impaired the defendant’s ability to form the requisite mens rea is relevant only to diminished capacity. Diminished capacity must be affirmatively pleaded before trial, and in this case, Clark specifically disavowed any intent to plead diminished capacity. The court thus properly allowed relevant observation testimony tending to rebut the State’s mens rea evidence and properly excluded expert testimony that was not relevant absent a diminished capacity defense.” The Court further rejected arguments that the expert testimony should have been admitted to rebut the State’s mens rea evidence despite the lack of a diminished capacity defense because the testimony was not actually diminished capacity evidence, and that failure to assert diminished capacity did not warrant exclusion of the testimony. Finally, the Court found that Mr. Clark did not establish ineffective assistance of counsel when counsel failed to object to the prosecutor advising several jurors that the State was not seeking the death penalty in this case.

Dissenting, Justice Gordon McCloud, joined by the Chief Justice and Justices Madsen and Owens, argued that, as the only question at trial was Mr. Clark’s mental state, expert testimony as to Mr. Clark’s ability to form premeditated intent, to counteract the State’s substantial evidence on this issue, was relevant and should have been admitted. The Court, however, found that observation testimony was relevant to rebut the element of mens rea despite the fact that Mr. Clark did not plead diminished capacity, but reached the opposite conclusion about expert testimony on Mr. Clark’s disability. The dissent argued that the Court’s refusal to perceive that the strongest evidence of Mr. Clark’s developmental disabilities should have been admitted to support the defense’s accident defense was illogical, and violated Mr. Clark’s constitutional right to present a defense. The dissent agreed with the defense evaluation that the expert testimony was also relevant to “support a finding of recklessness or criminal negligence” as opposed to premeditated intent because the diagnosis and associated explanation made it less likely that Mr. Clark knew or understood the risks posed by firing the gun. The dissent noted that Mr. Clark never argued that he was incapable of forming the mens rea of premeditated murder, but that the expert testimony went to the defense of accident, not lack of capacity. The dissent harshly criticized the Court’s refusal to perceive or allow the distinction. http://www.courts.wa.gov/opinions/pdf/920214.pdf

 


Division II Court of Appeals

In Re Detention of Peterson: In this partially published opinion, the Court found that the trial court had properly concluded that Mr. Peterson’s second degree assault conviction was a sexually violent offense for the purpose of civil commitment for sexually violent predators (SVP) under chapter 71.09 RCW. The Court found that the trial court did not err by admitting the victim’s statements as recorded recollections under ER 803(a)(5). The Court reasoned that the trial court Here, the trial court properly distinguished between the accuracy of the record itself and the credibility of the witness to determine whether the victim’s statements were admissible as recorded recollections under ER 803(a)(5). The trial court found that the recording processes were reliable, that the victim, who could no longer remember the event, had handwritten her first statement, and that she testified that she recognized her handwriting and signature on the statement. The victim’s second statements were recorded and the detective, who was involved in the interview, testified that the recording and transcript accurately reflected the detective’s recollection of the interview. The trial court also noted that the victim had never disavowed the statements, and had averred they were correct at the time they were made. http://www.courts.wa.gov/opinions/pdf/D2%2047661-4-II%20Published%20Opinion.pdf


State v. Weller: The Wellers appealed the imposition of no-contact orders prohibiting them from contacting their victim children for 30 years for Mrs. Weller and 45 for Mr. Weller. The Wellers argue that the sentencing court exceeded its statutory authority by imposing no-contact orders in excess of the maximum penalty for their most serious offense. The Court upheld the orders, finding that the aggravating factors found by the jury gave the trial court authority to impose exceptional sentences, including the no contact orders. The Court rejected the argument that the orders interfered with the Wellers’ fundamental right to parent, as parental rights to the protected persons had been terminated. http://www.courts.wa.gov/opinions/pdf/D2%2048056-5-II%20Published%20Opinion.pdf


In Re Manajares: The Court found that Mr. Manajares’ PRP was timely due to the retroactivity of Padilla and the finding in Tsai that the change in the law waived the one year time bar for restraint petitions. Mr. Manajares moved to withdraw his 2002 guilty plea to unlawful imprisonment because his lawyer failed to advise him that the plea would subject him to removal or exclusion from this country. The Court found that Mr. Manajares failed to show that the law he contends was not explained to him was truly clear in 2002, and therefore, his lawyer was not deficient in failing to fully explain the law. The crime of which Mr. Manajares was convicted was not clearly a violent felony or a crime of moral turpitude in 2002, such that counsel could have researched and discovered that Mr. Manajares’s Alford plea carried a truly clear risk of adverse consequences. Therefore, the Court found that counsel’s review with Mr. Manajares of the general statutory deportation warning was competent representation. http://www.courts.wa.gov/opinions/pdf/312712_pub.pdf

 

 

 

CJE Wire: Case Law Updates — 2017 January 27

 


Federal Law


Ninth Circuit Court of Appeals

Hardy v. Chappell: The panel amended an August 11, 2016, opinion reversing the district court’s judgment denying a habeas corpus petition challenging convictions for two counts of first degree murder and one count of conspiracy to collect life insurance proceedings; denied a petition for panel rehearing; and denied on behalf of the court a petition for rehearing en banc.

Judge Bea – joined by Judges O’Scannlain, Gould, Tallman, Bybee, Callahan, M. Smith, Ikuta, N.R. Smith and Owens – dissented from the denial of rehearing en banc. Judge Bea wrote that (1) in finding that the California Supreme Court applied an incorrect standard to determine whether the petitioner was prejudiced by undisputed ineffective assistance of counsel, the panel majority flyspecked some of the court’s language and denigrated other language that clearly stated its use of the proper standard; and (2) in deciding that the California Supreme Court’s conclusion that the petitioner was not prejudiced was based on unreason rather than compelling evidence in the record, the panel majority abandoned any notion of the proper deference owed to a state court’s judgment under AEDPA. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/01/27/13-56289.pdf

 

 


 Washington State Courts


Division II Court of Appeals

Personal Restraint of Phelps: The Court found that the prosecutor committed misconduct by introducing and arguing facts not in evidence about sexual grooming in Mr. Phelps’ trial for third degree rape and second degree sexual misconduct with a minor. The Court found that the misconduct was “prejudicial, flagrant, and ill intentioned and that there was no likelihood that this error could have been cured by a proper instruction.” The Court found that the prosecutor should have presented expert testimony at trial regarding grooming, as the issue was beyond the common understanding of the jury. The Court reasoned that the knowledge of grooming was likewise not essential to the proof of the case, and discussing the practice in closing, including the presentation of a slide show detailing the grooming practice, presented facts not in evidence to the jury. http://www.courts.wa.gov/opinions/pdf/D2%2048011-5-II%20Published%20Opinion.pdf

 


Division III Court of Appeals

State v. Mancilla: The Court upheld the sentence of all but one of the involved co-defendants, finding that the State did not err in introducing the majority of evidence that the co-defendants were part of a gang and the charged first degree assault was a gang-motivated crime. The Court found that the booking statements given after the arrest to ensure the men were safely housed were improperly admitted into evidence by the State, but that there was sufficient other evidence of gang affiliation for all defendants except Jaime Lopez to render this harmless error. The Court further found that testimony of the gang expert was helpful to explain the facts of the case and that the relevance outweighed any prejudice from that testimony. The Court upheld the to convict instruction used in this case and found that there was sufficient evidence for conviction. The Court additionally upheld the transferred intent instruction, holding that it did not improperly transfer the burden of proof to the defendant, that the court had the authority to stack firearms enhancements at the rate of one per firearm found, and that Mr. Lopez’ persistent offender life sentence was lawful. http://www.courts.wa.gov/opinions/pdf/311872_pub.pdf


Personal Restraint of Sanchez: The Court dismissed Mr. Sanchez’ PRP, which argued that he was entitled to a new trial on the grounds that (1) he was denied his right to counsel under the Sixth Amendment to the United States Constitution during a critical stage when he was arraigned without counsel, and (2) in the alternative, his counsel provided ineffective assistance by failing to appear and object to his being filmed by media at his arraignment proceeding. The Court reasoned that United States Supreme Court jurisprudence establishes that constitutional harmless error analysis applies to the denial of the Sixth Amendment right to counsel at all stages of criminal proceedings, except for those where “the deprivation of the right to counsel affected-and contaminated-the entire criminal proceeding.” The Court cited to precedent finding that arraignment was not a critical stage in the proceeding, and that nothing had occurred that would affect the entire proceeding. The Court further found that Mr. Sanchez was unable to establish that the absence of counsel at arraignment was prejudicial. http://www.courts.wa.gov/opinions/pdf/326331_ord.pdf

 

CJE Wire: Case Law Updates — 2017 January 20

 


Federal Law


Ninth Circuit Court of Appeals

United States v. Joey: The panel affirmed the district court’s determination that the defendant, as a repeat and dangerous sex offender against minors, was subject to an upward offense level adjustment pursuant to U.S.S.G. § 4B1.5, in a case in which the defendant was convicted of two counts of abusive sexual contact under 18 U.S.C. § 2244(a)(5) and two counts of committing a felony offense involving a minor while required to register as a sex offender under 18 U.S.C. § 2260A. The panel rejected the defendant’s argument that U.S.S.G. § 2A3.6, or its Application Note 3, bars the application of § 4B1.5 in calculating the defendant’s Guidelines range for his § 2244(a)(5) convictions. The panel wrote that rather than instructing courts not to apply § 4B1.5 to a conviction under § 2244(a)(5) where the defendant also incurs a § 2260A conviction, the Guidelines instruct courts to determine the Guidelines range for the § 2244(a)(5) count independently of § 2260A. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/01/19/15-10096.pdf

 

 


 Washington State Courts


Washington State Supreme Court

Personal Restraint of Bell: In a per curiam opinion, the Court found that Division II erred in dismissing Mr. Bell’s successive personal restraint petition on the grounds that it sought relief on the same grounds as those adjudicated in a previous petition. The Court observed that the lower court did not make the required determination that the successive petition was time barred.   The Court cautioned that the good cause requirement of RAP 16.4( d) did not apply to this petition, either, as Mr. Bell’s sufficiency of the evidence claim had not been considered and determined in previous petitions. However, the Court did find the petition time barred, and found that it did not escape the waiver of the time bar because the sufficiency of the evidence claim was without merit. http://www.courts.wa.gov/opinions/pdf/926794.pdf

 


Division I Court of Appeals

Personal Restraint of Pang: The Court found that Mr. Pang’s motion for individualized review of his LFOs pursuant to Blazina was untimely under RCW 10.73.090, noting that Blazina is not retroactive. The Court also declined to hear the case as a motion to remit costs under RCW 10.01.160(4), holding that if Mr. Pang wishes to remit his discretionary financial obligations, he must file a motion for remittance with the sentencing court. http://www.courts.wa.gov/opinions/pdf/739948.pdf

 


Division II Court of Appeals

State v. Livingston: In this partially published opinion, the Court found that the DOC compliance search of Mr. Livingston’s vehicle based on his arrest for an outstanding warrant failed to establish a nexus between the violation and the searched property. The Court observed that the warrant stated only that there was reason to believe that Mr. Livingston had committed a community custody violation, but that the underlying nature of the violation was not stated in the warrant, nor established by the trial court. Further, when DOC Officer Grabski conducted the search, he and his fellow officer had no information as to the basis for the warrant. The Court followed the determination of Division III in State v. Jardinez that to support a search, the property searched must relate to the specific violation that the officer believed had occurred.   The Court reversed the trial court order denying suppression of the evidence found in the vehicle and remanded for a determination of nexus and to allow the State to argue the issue of a good faith search. http://www.courts.wa.gov/opinions/pdf/D2%2048118-9-II%20Published%20Opinion.pdf

 


Division III Court of Appeals

Personal Restraint of Moncada: The Court found that Mr. Moncada’s PRP was insufficient as filed and that hearsay evidence contained in declarations filed in support of Mr. Moncada’s PRP must be stricken. The Court reasoned that Ruiz-Sanbara did not change the evidentiary standards for petitions, but merely “stands for the proposition that when petitioner can identify existing court records that are significant to consideration of the PRP, the reviewing court must consider them in some manner, including, if appropriate, having the State address the allegation in its response.” Therefore, under Rice, the Court found, hearsay remains inadmissible and is not a basis for granting a reference hearing or other relief. http://www.courts.wa.gov/opinions/pdf/341658_pub.pdf

 

 

CJE Wire: Case Law Updates — 2017 January 13

 


Federal Law


Ninth Circuit Court of Appeals

United States v. Williams: The panel filed (1) an order amending an opinion and denying a petition for panel rehearing and, on behalf of the court, a petition for rehearing en banc; and (2) an amended opinion reversing the district court’s order granting a motion to suppress evidence of crack cocaine in the defendant’s pockets and the firearm in his vehicle. The panel held that police officers had reasonable suspicion to conduct an investigatory stop based on the information they possessed and the reliability of a telephone tip.

After the initial stop, the officers developed probable cause to arrest Mr. Williams, claiming that he obstructed them in their attempt to enforce Nevada Revised Statute § 171.123, which dictates that police officers may detain a suspect whom the officers have reasonable suspicion has committed, is committing, or is about to commit a crime, in order to obtain that individual’s identity. The panel held that the government did not waive its argument that the officers had probable cause to arrest the defendant for violating § 171.123 where before the district court the government argued generally that the officers had probable cause to arrest him because he ran. The panel held that the officers conducted a valid search incident to arrest when they searched the defendant’s pockets and found crack cocaine.

The panel further held that the officers lawfully searched the defendant’s vehicle because, under the totality of the circumstances, they had probable cause to believe that it contained contraband or evidence of drug dealing. The panel remanded the case for further proceedings.   http://cdn.ca9.uscourts.gov/datastore/opinions/2017/01/11/15-10008.pdf

 


 Washington State Courts


Washington State Supreme Court

State v. Solis-Diaz: In this per curium opinion, the Court remanded the case for re-sentencing for a third time, with the caveat that Judge Hunt, the initial sentencing judge, not Mr. Solis-Diaz was sentenced to 1,111 months, or 92.6 years of imprisonment as a result of his participation in a drive-by shooting in Centralia when he was 16 years old. The sentence was confirmed on direct appeal, but after hearing Mr. Solis-Diaz’ Personal Restraint Petition, the Court of Appeals remanded for resentencing on the basis that trial counsel “was ineffective in failing to obtain a sentencing report and properly inform the trial court that Solis-Diaz’s case had been automatically declined to adult court because of his age and the nature of the charges. At the third sentencing, which, like the first two, was held before Judge Hunt, the State asked the court to consider recent case law allowing the court to take into consideration the offender’s age at the time of the crime but still urged imposition of the same sentence, while counsel for Mr. Solis-Diaz urged an exceptional downward sentence of approximately 15 years. Judge Hunt again confirmed the 1,111-month sentence commenting that he found it insulting for the court to postulate that he would be “so ignorant, lazy, or stupid as to not know or inquire” why a teenage offender was in adult court, and that it was particularly insulting that the court presupposed that he did not “review the file or was so behind in the law not to know … about the automatic adult jurisdiction” in Washington, and was even “ludicrous” given the judge’s years practicing as a prosecutor and defense attorney and his work on juvenile justice issues.

Verbatim Report of Proceedings at 34-35.

The judge then defended Mr. Solis-Diaz’ counsel, opinion that he had not been ineffective in failing to obtain a presentence report or in failing to call friends and family to testify at sentencing. The judge determined that the sentence he had originally imposed was “precisely what the Legislature intended” in the circumstances of this case and the only result that could withstand legal analysis when considering that there were no substantial and compelling reasons to deviate from the standard range. Mr. Solis-Diaz again appealed, and the court again remanded for resentencing, holding that Judge Hunt erred in not considering an exceptional sentence below the standard range on the basis of Mr. Solis-Diaz’s youth and to mitigate the consecutive sentences required under the multiple offense policy. The Court declined Mr. Solis-Diaz’ request to disqualify Judge Hunt, and Mr. Solis-Diaz appealed that portion of the opinion to the supreme court. Concluding that Judge Hunt has shown he “he has already reached a firm conclusion about the propriety of a mitigated sentence in this case and may not be amenable to considering mitigating evidence with an open mind. These are precisely circumstances that justify remand of the matter to another judge.” The Court reversed the Court of Appeals to the extent it declined to disqualify Judge Hunt from presiding over Mr. Solis-Diaz’ resentencing. http://www.courts.wa.gov/opinions/pdf/932794.pdf


State v. Ramos: In an opinion authored by Justice Yu for a unanimous Court, the Court held that a juvenile homicide offender facing a de factor life-without-parole sentence was entitled to a Miller hearing, just as a juvenile homicide facing a literal life-without-parole sentence would be. Mr. Ramos was initially sentenced to three consecutive 20 year sentences and a fourth of 25 years, for a total of 85 years. Mr. Ramos asked for the sentences to be run concurrently, making him eligible for parole in his lifetime. The Court found that, while “not every juvenile homicide offender is automatically entitled to an exceptional sentence below the standard range, every juvenile offender facing a literal or de facto life-without-parole sentence is automatically entitled to a Miller hearing.”  At such a hearing, the Court must meaningfully consider the differences between juveniles and adults, how those differences apply to the case at hand, and whether those facts present the uncommon situation where a life-without-parole sentence for a juvenile homicide officer is constitutionally permissible. The juvenile must prove by a preponderance of the evidence that his or her crimes “reflect transient immaturity, substantial and compelling reasons would necessarily justify an exceptional sentence below the standard range because a standard range sentence would be unconstitutional.” Here, the Court found that Mr. Ramos received an adequate Miller hearing and failed to show that his sentence violates the Eighth Amendment. The Court went on to examine Miller further, including examining whether procedures imposed by the SRA were impermissible in light of the substantive holding of Miller. While juveniles are per force entitled to a Miller hearing before being sentenced to an actual or de-facto life sentence, the Court declined to impose additional procedural protections suggested by Mr. Ramos, including requiring the state to bear the burden of proof for a standard range sentence rather than imposing that burden on the offender to prove justification for an exceptional downward sentence. Further, the Court declined to read Miller to require an assessment of current maturity and rehabilitation, instead noting that this was properly considered later during parole hearings. Finally, the Court held that Miller does not require the sentencing court to make an explicit finding that the juvenile’s homicide offenses reflect irreparable corruption before imposing life without parole. Finally, the Court found that the State had not breached its plea agreement by pointing out the particular vulnerability of the youngest victim. http://www.courts.wa.gov/opinions/pdf/924546.pdf


State v. Ortiz-Abrego: In an opinion written by Justice Stephens and joined by Justices Wiggins, Gordon McCloud, Owens, and Johnson, the Court found that the trial court’s procedure of holding a competency hearing for Alexander Ortiz-Abrego after a trial in which he was found guilty on charges of child rape, in which it was found he had not been competent during trial, though various accommodations suggested by an expert who evaluated him midtrial could have helped him follow the proceedings, did not abused the “wide discretion appropriate to competency determinations.” The Court held that trial courts may weigh evidence of actual understanding because capacity may be inferred from observed performance. Further, the Court noted, trial courts may accommodate defendant’s specific needs by modifying trial schedules and courtroom procedures to make proceedings more accessible. The concessions a permissible but distinct from legal analysis of competency to stand trial.  In this case, the Court found Mr. Ortiz-Abrego to be incompetent because he was “not capable” of understanding the nature of his trial. CP at 34 7 (emphasis added). This tracks Washington’s statutory requirement that a defendant must have the capacity to understand the “proceedings.” RCW 10.77.010(15). Evidence that a defendant either did or did not understand his trial is best understood as valid circumstantial evidence that may be considered in a court’s competency analysis. The Court declined to limit the ability of trial courts to make this inference.

Dissenting, Justice Madsen, joined by Chief Justice Fairhurst and Justices Yu and Gonzalez, argued that the trial court blended the competency standard with the inquiry into disability accommodations. The dissent explained that competency standards revolve around the defendant’s ability to understand trial proceedings, while disability accommodations, “are not aimed at a defendant’s capacity to understand. Rather, accommodations serve to safeguard a defendant’s rights under the Sixth Amendment to confront witnesses and be present during trial and preserve a defendant’s equal protection rights under the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101-12213. By so doing, the dissent argued, the trial court necessarily abused its discretion.   The Dissent reasoned that rather than focusing on a capacity to understand and assist, as is required under a competency analysis, the trial court found that looking back, accommodations would have increased Mr. Ortiz-Abrego’s ability to “properly” understand and “rationally” assist his legal counsel. Again, the dissent argued, this is not the proper question to be asked. Instead, a court should ask whether the defendant has the bare capacity to understand and assist. The dissent also expressed concern about the “harmful, systemic effect that utilizing competency to address the needs of defendants with disabilities may have in our judicial system. We do not want to make the statement that defendants with disabilities do not have the capacity to understand and assist.” Instead, the goal is structuring of the proceedings to allow for maximum participation and fairness to defendants, jurors, and community members with disabilities. But, the dissent stressed, the absence of disability accommodations “cannot be the reason a defendant is incompetent to stand trial because the accommodations do not address whether he has the capacity to understand and assist.” The blending of the consideration of disability accommodations with the question of competence resulted in the wrong legal standard in this case. http://www.courts.wa.gov/opinions/pdf/923345.pdf

 

CJE Wire: Case Law Updates — 2017 January 9

 


Federal Law


Supreme Court of the United States

Salman v. United States: In an opinion authored by Justice Alito for a unanimous Court, the Court found that Mr. Salman could properly be convicted of trading on inside information when he used a tip provided by his friend and relative-in-marriage, Michael Kara, who had received the tip from his brother, Maher Kara, a former investment banker at Citigroup. Maher testified at Mr. Salman’s trial that he expected his brother to trade on and benefit from the information shared, and Michael admitted to sharing that information with Mr. Salman, who knew it came from Maher. The Court took the case to resolve a division between the circuits on the proper application of Dirks v. SEC, 463 U. S. 646, which held that tippee liability hinges on whether the tipper’s disclosure breaches a fiduciary duty, which occurs when the tipper discloses information for a personal benefit. A personal benefit may be inferred where the tipper receives something of value in exchange for the tip or “makes a gift of confidential information to a trading relative or friend.” Id. The Second Circuit had determined that Dirks does not permit a fact finder to infer a personal benefit to the tipper unless there is “proof of a meaningfully close personal relationship” between tipper and tippee “that generates an exchange that is objective, consequential, and represents at least a potential gain of a pecuniary or similarly valuable nature,” United States v. Newman, 773 F. 3d 438, 452, cert. denied, 577 U. S. ___. Conversely, the Ninth Circuit held that Dirks allowed Mr. Salman’s jury to infer a breach of duty by the tipper because he made a “gift of confidential information to a trading relative.”   The Court held that the Ninth Circuit’s interpretation was the correct one, and Dirks was properly applied to uphold Mr. Salman’s conviction. The Court rejected Mr. Salman’s contention that a gift of confidential information alone is insufficient to establish personal benefit required for tippee liability. The Court found Dirks addressed the issue in its holding that “when an insider makes a gift of confidential information to a trading relative or friend . . . [t]he tip and trade resemble trading by the insider himself followed by a gift of the profits to the recipient,” 463 U. S., at 664. The Court explained that the tipper personally benefits because “giving a gift of trading information to a trading relative is the same thing as trading by the tipper followed by a gift of the proceeds.” The court also concluded that Mr. Salman has shown “no grievous ambiguity or uncertainty that would trigger” the rule of lenity. Barber v. Thomas, 560 U. S. 474, 492 (internal quotation marks omitted). https://www.supremecourt.gov/opinions/16pdf/15-628_m6ho.pdf


Shaw v. United States: In an opinion authored by Justice Breyer on behalf of a unanimous Court, the Court found that subsection (1) of the bank fraud statute, 18 U. S. C. §1344(1), covers schemes to deprive a bank of money in a customer’s deposit account. In so holding, the Court rejected Mr. Shaw’s arguments that he had only intended to cheat a bank depositor when he used identifying numbers from a customer’s account to transfer money out of that account and into accounts at separate institutions in Mr. Shaw’s name. The Court reasoned that the bank had property rights in the customer’s bank deposits, whether through temporary ownership or possession. The Court also observed that while Mr. Shaw may not have intended to cause the bank financial harm, the statute demands neither a showing of loss nor a showing that the defendant intended to cause a loss. Further, the Court noted that Mr. Shaw’s apparent ignorance of relevant bank-related property law is not a defense to criminal prosecution for bank fraud. The Court additionally rejected arguments that the government must prove not just knowledge to harm the bank’s property interest but with purpose to do so, finding no authority to support this view. The Court then found that “subsection (2) of the bank fraud statute, which makes criminal the use of “false or fraudulent pretenses” to obtain “property . . . under the custody or control of” a bank, may overlap with subsection (1), but it does not do so completely. Thus, it should not be read as excluding from subsection (1) applications that would otherwise fall within the scope of subsection (1), such as the conduct at issue in this case.” Finally, the Court refused to apply the rule of lenity, finding the bank fraud statute sufficiently clear. https://www.supremecourt.gov/opinions/16pdf/15-5991_8m59.pdf

 


Ninth Circuit Court of Appeals

United States v. Acevedo-De La Cruz: The panel affirmed Mr. Acevedo-De La Cruz’ sentence, finding that a violation of a protective order involving an act of violence or credible threat of violence in violation of California Penal Code § 273.6(d) is a categorical crime of violence for purposes of U.S.S.G. §2L1.2(b)(1)(A)(ii).   The Court reasoned that the term “violence” by definition included the use of physical force, and found that the California Legislature intended such meaning when it enacted the statute at issue. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/01/05/15-10418.pdf

 


 Washington State Courts


Washington State Supreme Court

State v. Barbee: In an opinion authored by Justice Owens for a unanimous Court, the Court found that the proper unit of prosecution for promoting prostitution is one count for each prostitute involved. The Court found that the plain language of the statute, which assesses criminal liability for advancing or profiting from prostitution indicate that the legislature clearly intended the State to be able to charge multiple counts when more than one prostitute was involved, and did not intend the crime to be a “continuing enterprise,” as Mr. Barbee urged. The Court reasoned that in this case the number of victims is primary to the statutory aim, pointing to the language in RCW 9A.88.080 and RCW 9A.88.060, under which a person ‘”advances prostitution”‘ if, among other things, “he or she causes or aids a person to commit or engage in prostitution.” RCW 9A.88.060(1) The Court found that “[t]he statute’s singular language and

reference, first and foremost, to “a person” indicates that the legislature plainly authorized multiple punishments when multiple individuals are ‘promoted.’” http://www.courts.wa.gov/opinions/pdf/927715.pdf

 


Division I Court of Appeals

State v. Kidder: After an in custody recommendation for civil commitment during which the evaluating psychiatrist noted a long history of severe mental health issues, the trial court on September 24 ordered Ms. Kidder incompetent to stand trial and continued the case for 90 days. The Court simultaneously entered an order of commitment to Western State Hospital (WSH) for a 90-day period of competency restoration treatment. WSH later claimed it did not receive the order until October 7, and at that time did not have space for Ms. Kidder, who remained at the Skagit County Jail. In response to a contempt hearing, WSH claimed that as of “October 23, 2014, initial 90 day non personal recognizance felony restoration cases were waiting approximately 65 days.” The hospital claimed that approximately 15 patients awaiting restoration treatment are admitted each week, and stated that they expected to be able to admit Ms. Kidder by “the week ending January 9, 2015.” The trial court held the State and WSH in contempt, finding that attempting to follow a waitlist was insufficient compliance with the statute’s directive to provide restorative services in a timely manner. The Court held that the State could purge the contempt by admitting Ms. Kidder to WSH no later than 4:30 on December 4. On December 9, counsel for Ms. Kidder filed a motion seeking sanctions and a finding that WSH was in contempt, as Ms. Kidder still remained in the Skagit County Jail. The motion was granted. Ms. Kidder was ultimately admitted to WSH on January 6, 2015, but not before counsel had filed a motion to dismiss, arguing that the 90-day commitment order had lapsed and had not been renewed, and relying on the decision in Trueblood to argue that the delay violated Ms. Kidder’s due process rights. The Court dismissed without prejudice and ordered a 90-day commitment for Ms. Kidder. On appeal brought by the State, the Court found that the court complied with statutory procedures and had the authority to dismiss without prejudice and the record established that the failure of the State to provide restorative treatment within a reasonable time violated her due process rights. The Court further held that substantial evidence supported the Court’s order, and affirmed the dismissal. http://www.courts.wa.gov/opinions/pdf/731068.pdf

 


Division II Court of Appeals

State v. Burch: The Court affirmed Ms. Burch’s convictions for vehicular homicide and vehicular assault stemming from a drunk driving accident. The Court found no error in the to-convict instructions for both crimes, which allowed the jury to find Ms. Burch guilty without finding that the State provide ordinary negligence. The Court applied the Bash factors, concluding that driving “under the influence presents a serious risk of death to the people of Washington, and the statute’s proximate cause requirement greatly limits application to any seemingly innocent conduct,” therefore holding that the legislature intended to impose strict liability for vehicular homicide while under the influence of alcohol or drugs.   The Court performed the same analysis and made the same findings with regard to the crime of vehicular assault by driving under the influence. http://www.courts.wa.gov/opinions/pdf/D2%2047558-8-II%20Published%20Opinion.pdf

 

 

CJE Wire: Case Law Updates — 2016 September 23

 


Federal Law


Ninth Circuit Court of Appeals

United States v. Williams: The panel reversed the district court’s order granting a motion to suppress evidence of crack cocaine in the defendant’s pockets and the firearm in his vehicle. The panel held that police officers had reasonable suspicion to conduct an investigatory stop based on the information they possessed and the reliability of a telephone tip. After the initial stop, the officers developed probable cause to arrest the defendant because he obstructed them in their attempt to enforce Nevada Revised Statute § 171.123, which dictates that police officers may detain a suspect whom the officers have reasonable suspicion has committed, is committing, or is about to commit a crime, in order to obtain that individual’s identity. The panel held that the government did not waive its argument that the officers had probable cause to arrest the defendant for violating § 171.123 where before the district court the government argued generally that the officers had probable cause to arrest him because he ran. The panel held that the officers conducted a valid search incident to arrest when they searched the defendant’s pockets and found crack cocaine. The panel further held that the officers lawfully searched the defendant’s vehicle because, under the totality of the circumstances, they had probable cause to believe that it contained contraband or evidence of drug dealing. The panel remanded the case for further proceedings. http://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/20/15-10008.pdf


United States v. Diaz: The panel issued an amended opinion affirming a sentence, denied a petition for panel rehearing, and denied on behalf of the court a petition for rehearing en banc, in a case in which Jesse Vasquez received a sentence of life imprisonment mandated under 21 U.S.C. § 841(b)(1)(A) because of his two prior felony drug convictions. Four years after his sentencing, California adopted Proposition 47, which allowed California courts to reclassify certain felony convictions as misdemeanors. Mr. Vasquez successfully petitioned a California court to reclassify one of his prior California felonies—on which his federal enhancement was based—as a misdemeanor. The panel held that Proposition 47 does not undermine a prior conviction’s felony status for purposes of § 841, and that California’s later actions cannot change the historical fact that Mr. Vasquez committed his federal offense “after two or more convictions for a felony drug offense [had] become final.” The panel addressed other issues in a concurrently-filed memorandum disposition. http://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/21/10-50029.pdf

 

 


 Washington State Courts


Washington State Supreme Court

Richland v. Wakefield: In a unanimous opinion authored by Justice Owens, the Court overturned a decision by Benton County District Court ordering Briana Wakefield to pay $15.00 each month toward her outstanding legal financial obligations (LFOs). The Court found that the district court’s order was contrary to both the law and the evidence in the record, which showed that Ms. Wakefield is homeless, disabled, and indigent, with a monthly income of just $710 in social security disability payments. The Court reasoned that state law requires that LFOs be imposed only if an individual has a present or future ability to pay, and may be remitted if payment would impose a manifest hardship. Finding that Ms. Wakefield has no present or future ability to pay and already struggles to obtain basic needs, the Court concluded that payment would impose a manifest hardship and ordered the LFOs to be remitted. http://www.courts.wa.gov/opinions/pdf/925941.pdf

 


Division III Court of Appeals

State v. Bates: In this partially published opinion, the Court upheld Sean Bates’ conviction for two counts of first degree child rape, finding that the direct examination of the child witness by the State was broad enough to make possible any cross-examination Mr. Bates had wished to undertake. The Court observed that such broad direct examination was required before offering the testimonial out-of-court statement of a witness against a criminal defendant, so as to allow the defense to cross-examine the witness about that information, whether it is contained in in-court or out-of-court statements. This “spares the defendant the risk of inflaming the jury if he calls a child as a direct witness. It safeguards the defendant’s right to rely on the State’s burden of proof in a criminal case.” The Court found that Mr. Bates failed to show that the State’s presentation of evidence required him to either forego cross-examination or call the child victim as a witness. The Court concluded that Mr. Bates, who did not raise this issue at trial, had not demonstrated manifest constitutional error, and had not demonstrated error or prejudice on a related ineffective assistance of counsel claim. http://www.courts.wa.gov/opinions/pdf/327795_pub.pdf

 

 

CJE Wire: Case Law Updates — 2016 September 16

 


Federal Law


Ninth Circuit Court of Appeals

United States v. Aguilar-Canche: Affirming the district court’s denial of a motion pursuant to 18 U.S.C. § 3582(c)(2) for reduction of sentences in light of Sentencing Guidelines Amendment 782, the panel held that the consecutive nature of sentences is not modifiable pursuant to § 3582(c)(2). The panel wrote that the sentences, for which the district court imposed the mandatory minimums at a consolidated sentencing hearing, were not “based on” a subsequently amended Guideline range, and that the district court was not authorized under § 3582(c)(2) to reconsider their consecutive nature. http://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/29/15-30209.pdf


Frost v. Gilbert: In light of the Washington State Bar Association Office of Disciplinary Counsel’s dismissal of a grievance against Zachary C. Wagnild, the en banc court filed an order withdrawing an opinion and dissent filed March 21, 2016, replacing the opinion and dissent with a unanimous amended opinion, and ordering a petition for rehearing en banc filed by the King County Prosecutor’s Office and Mr. Wagnild’s joinder in the petition for rehearing filed as amicus briefs. In the amended opinion, the en banc court, on remand from the Supreme Court, affirmed the district court’s denial of habeas corpus relief to Washington state prisoner Joshua Frost, who challenged his conviction on charges stemming from his participation in a spree of armed robberies and a burglary. The en banc court held that the King County Superior Court’s erroneous refusal to allow defense counsel to make alternative arguments during summation – that the state hadn’t met its burden of proof, and that Mr. Frost committed the crimes under duress – was harmless because the jury heard overwhelming evidence that Mr. Frost committed the charged offenses and any argument that the prosecution failed to meet its burden of proof would have fallen on deaf ears. The en banc court granted a certificate of appealability as to Mr. Frost’s claims that the prosecution withheld material, exculpatory evidence in violation of Brady v. Maryland and that the prosecution called witness Edward Shaw to testify falsely about the existence of that evidence in violation of Napue v. Illinois. The en banc court held that while Mr. Frost may have shown cause for failing to raise the Brady and Napue claims in his 2008 personal restraint petition, he cannot show prejudice. The en banc court explained that given the evidence of guilt presented at trial, there is no reasonable likelihood that Mr. Shaw’s false testimony about having only one plea agreement could have affected the judgment of the jury, and there is no reasonable likelihood that the jury could have acquitted Mr. Frost based on his duress defense, even if they had learned of an undisclosed signed version of Mr. Shaw’s plea agreement in a firearm-and-drug possession case or an undisclosed plea agreement in Shaw’s domestic-violence case. http://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/29/11-35114.pdf


Rademaker v. Paramo: The panel affirmed the district court’s denial of David Rademaker’s habeas corpus petition challenging his California state conviction for first-degree murder with a special circumstance for committing the murder during the commission of a kidnapping. The jury found the special circumstance based on an erroneous jury instruction regarding the element of asportation. The panel held that the California Court of Appeal’s determination that the instructional error was harmless beyond a reasonable doubt was not an objectively unreasonable application of Chapman v. California, 386 U.S. 18 (1967). http://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/30/14-56946.pdf


Alvarez v. Tracy: The panel granted a petition for panel rehearing; withdrew an opinion and dissent filed December 8, 2014; filed a new opinion and dissent; and denied a petition for rehearing en banc as moot in a case in which the panel, in the new opinion, reversed the district court’s denial of a federal habeas petition brought by Fortino Alvarez, an enrolled member of the Gila River Indian Community, who sought relief from his tribal court conviction. Under the Indian Civil Rights Act (ICRA), Indian tribes may not deny criminal defendants facing imprisonment “the right, upon request, to a trial by jury.” Mr. Alvarez sought habeas relief on the theory that the Community deprived him of that right by failing to inform him that he would only receive a jury upon request. After reviewing new information presented in Mr. Alvarez’s petition for panel rehearing and the parties’ supplemental briefs, the panel concluded that the Community deliberately waived any non-exhaustion defense stemming from Mr. Alvarez’s failure to file a direct appeal. That waiver precluded the panel from raising non-exhaustion sua sponte. The panel did not need to resolve whether the jury-trial rights accorded by ICRA and the Sixth Amendment are equivalent. Assuming that the balancing test in Randall v. Yakima Nation Tribal Court, 841 F.2d 897 (9th Cir. 1988), applies, the panel concluded that Mr. Alvarez’s interests in understanding the full contours of his rights outweigh any interests the Community might have here. The panel wrote that the Community’s handling of Mr. Alvarez’s case falls short of the “fair treatment” required by ICRA, which includes the right to know that he would forfeit his right to a jury unless he affirmatively requested one. Because the denial of the right to a jury trial is a structural error, it requires automatic reversal, and the panel remanded to the district court with instructions to grant the petition for a writ of habeas corpus.

In a concurring opinion, Judge Kozinski wrote that this appeal gives no occasion to consider a rat’s nest of problems with the Community’s justice system. He wrote that perhaps the Community and others like it will take this opportunity to reconsider the dubious procedures they employ in their criminal courts.

Judge O’Scannlain concurred in the court’s determination that the Community deliberately waived its non-exhaustion defense. He dissented from the court’s conclusion that the Community denied Alvarez his “right, upon request, to a trial by jury” when Alvarez never requested a jury. He wrote that rather than analyze the scope of Alvarez’s jury-trial right the majority applies an unmoored balancing test without giving a reason to do so. http://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/30/12-15788.pdf


United States v. Alvarez: The panel affirmed the district court’s restitution order in a case in which the defendant pled guilty to knowingly transporting illegal aliens. The panel rejected the defendant’s contention that the Supreme Court’s decision in Paroline v. United States, 134 S. Ct. 1710 (2014), undermines this court’s holding in United States v. Batson, 608 F.3d 630 (9th Cir. 2010), that restitution can be imposed as a condition of supervised release. Because Paroline did not establish that restitution is a punishment, the defendant could not succeed on his argument that the district court violated Apprendi v. New Jersey, 530 U.S. 466 (2000), by imposing restitution based on facts not found by a jury. The panel rejected the defendant’s contention that the company from whom the defendant rented a car that was damaged while a co-defendant was transporting the aliens therein was not a victim of the offense. The panel held that the causal nexus between the crime of transporting aliens and the resulting damage to the car is not too attenuated, and that restitution to the rental car company is appropriate. The panel held that the government did not breach the plea agreement by pursuing restitution even though the agreement did not mention it, where the government pursued restitution subsequent to the defendant’s clear statement that he expected to have to pay it. The panel held that the district court’s failure to advise the defendant at his change of plea hearing that he may be subject to restitution was harmless. http://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/01/14-50506.pdf


Clark v. Ryan: Affirming the district court’s denial of a habeas corpus petition, the panel held that the Arizona Court of Appeals’ decision that Arizona’s modern sex offender registration statute is not an ex post facto law is neither contrary to, nor an unreasonable application of, the Supreme Court’s decision in Smith v. Doe I, 538 U.S. 84 (2003). http://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/02/15-15531.pdf


United States v. Carey: The panel vacated the district court’s order denying the defendant’s motion to suppress evidence derived from the use of wiretaps. The panel held that police may use evidence obtained in “plain hearing” when they overhear speakers unrelated to the target conspiracy while listening to a valid wiretap, without having complied with the Wiretap Act requirements of probable cause and necessity as to those specific speakers, but that agents must discontinue monitoring the wiretap once they know or reasonably should know that the phone calls only involved speakers outside the target conspiracy. Because the record does not show exactly when agents knew or should have known that the phone conversations did not involve the persons involved in the target conspiracy, the panel vacated the district court’s denial of the motion to suppress and remanded to the district court on an open record to determine what evidence was lawfully obtained in “plain hearing.”

Judge Kozinski dissented from the part of the opinion where the majority remands on an open record. He wrote that if the record does not show whether the agents reasonably believed that the conspiracies were related until after a traffic stop, the defendant, who presented no evidence contradicting an agent’s sworn declaration, has only himself to blame. http://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/07/14-50222.pdf


United States v. Kaplan: The panel affirmed a conviction for conspiracy to commit adulteration in violation of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 331(k), with the intent to defraud or mislead, in a case in which the defendant, a urologist, reused single-use plastic needle guides during prostate biopsy exams. The panel held that a physician’s use of a consumable, single-use device on a paying patient satisfies the “held for sale” element under § 331(k), and that the district court, in denying the defendant’s motion to dismiss the indictment, did not err in determining that the defendant’s use of the needle guides in the course of treating his urology patients constituted a “sale” under § 331(k). The panel held that there was sufficient evidence to support the conviction that the defendant conspired to commit adulteration in violation of § 331(k) and to support the special finding that he intended to defraud his patients, the public, the FDA, and the Nevada State Medical Board. The panel held that the district court did not err in rejecting the defendant’s requested jury instruction stating that off-label use of an unadulterated device is not unlawful, where the theory was already covered by the instructions. The panel held that the district court did not plainly err in refusing to give a “practice of medicine” exemption instruction. The panel held that because the indictment contained the elements of the defendant’s fraud in adequate detail, he was fairly informed of the charges against him, and that any error in omitting the materiality element from the indictment was, on this record, harmless. The panel held that the defendant waived any challenge to the jury instructions and special verdict form regarding how the jury distinguished between a misdemeanor and a felony conviction. http://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/09/15-10241.pdf


United States v. Soto-Zuniga: The panel vacated a jury conviction for possession with intent to distribute methamphetamine, reversed discovery rulings, and remanded with instructions. The panel held that the district court abused its discretion by denying the defendant’s pretrial motion for discovery relating to the constitutionality of a Border Patrol checkpoint at which the defendant was detained and his car searched. The panel concluded that discovery of the checkpoint search and arrest statistics was pertinent to the issue whether the checkpoint was invalid under the Fourth Amendment because its primary purpose was to advance the general interest in crime control, rather than to control immigration. The panel held that this issue of the constitutionality of a search or seizure was subject to discovery under Federal Rule of Criminal Procedure 16(a)(1)(E). The panel reversed the district court’s denial of the discovery motion relating to the checkpoint’s arrest statistics and remanded for the district court to assess the constitutionality of the checkpoint in further proceedings. The panel held that the district court abused its discretion by denying the defendant’s motion for discovery on the government’s investigation into a drug smuggling operation. After reviewing sealed documents submitted by the government, the panel concluded that the documents were discoverable because they were material to preparing the defense under Rule 16(a)(1)(E). The panel reversed the denial of the discovery motion, vacated the conviction, and remanded with instructions to grant the motion. The panel also instructed the district court to consider the government’s request for a window of time before production to determine whether to continue to pursue the case, and to consider the government’s request for protective measures that would maintain the security of the information in the documents while allowing the defense to adequately prepare a defense. The panel affirmed the denial of a suppression motion insofar as it was based on a claimed lack of probable cause for the search of the defendant’s car. The panel held that the district court did not err in instructing the jury on reasonable doubt. It also held that knowledge of drug type and quantity is not an element of possession with intent to distribute in violation of 21 U.S.C. § 841.   http://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/16/14-50529.pdf


Tarango v. McDaniel: The panel filed (1) an order amending its opinion and accompanying dissent and denying a petition for panel rehearing and a petition for rehearing en banc and (2) an amended opinion and dissent in a habeas corpus case. In the amended opinion, the panel vacated the district court’s denial of a habeas corpus petition, in which a Nevada state prisoner claimed violation of his due process right to a fair and impartial jury, where a police vehicle followed a known hold-out juror, for approximately seven miles, on the second day of deliberations in a highly publicized trial involving multiple police victims. The panel held that the Nevada Supreme Court’s decision upholding the petitioner’s convictions was contrary to Mattox v. United States, 146 U.S. 140 (1892), because the court improperly limited its inquiry to whether the external contact amounted to a “communication” and did not investigate the prejudicial effect of the police tail. The panel therefore reviewed de novo the question whether the extrinsic contact could have influenced the jury’s verdict and prejudiced the petitioner. Because the state trial court prevented the petitioner from offering certain evidence to demonstrate prejudice, the panel remanded for an evidentiary hearing and further fact finding.

Dissenting, Judge Rawlinson wrote that Mattox is far afield from the dispositive issue, the majority gives no deference to the decision of the Nevada Supreme Court but engages in impermissible appellate fact finding, and no Supreme Court case supports the majority’s conclusion. http://cdn.ca9.uscourts.gov/datastore/opinions/2016/09/16/13-17071.pdf

 

 


 Washington State Courts


Washington State Supreme Court

State v. Flores: In an opinion authored by Justice Stephens and joined by Justices Wiggins, Johnson, Gonzalez, Owen, Fairhurst, and Yu, found that a stop of a companion of an arrestee in the absence of reasonable suspicion to independently justify a Terry stop is permissible “where officers have an objective rationale predicated on safety concerns to seize a companion to secure the scene of the arrest… so long as it remains reasonable in scope and duration.” In so doing, the court adopted an “objective rationale test” for when an officer may seize companions to control the scene of an arrest, declining to compartmentalize the precedent set by Mendez and Parker as “vehicle” cases and create a separate line of “pedestrian” cases. The Court reasoned that the fact that those two cases had occurred in the vehicle context was not central to their holdings; rather the fact that the officers believed safety issues had arisen was the primary purpose of the seizures in both cases. The Court set out a list of nonexclusive factors that may warrant an officer seizing companions, including the number of officers, the number of people present, time of day, behavior, location of the arrest, presence of actual or suspected weapons, officer knowledge of the arrestee or companions, and potentially affected citizens.   Based on this holding, the Court reversed the court of appeals ruling upholding the suppression of the gun located on Mr. Flores in this case after Mr. Flores had been ordered to hold his hands up and walk backward toward an officer based merely on his proximity to his companion, a suspect in a felony harassment case who had an unrelated warrant out for his arrest, finding that the fact that the arresting officer was alone at the scene and the companion volunteered the presence of the gun warranted the seizure by an officer who arrived at the scene after the initial officer had seized Mr. Flores’ companion.

Dissenting, Justice Gordon McCloud, joined by the Chief Justice, argued that the opinion actually held that “law enforcement officers can seize an individual just like John Terry – an individual on a city sidewalk – without “individualized” suspicion and without “articulable facts” supporting individualized suspicion, based on that officer’s subjective statement of purpose rather than on objectively reasonable facts.” The dissent said that this creates a new exception to the Fourth Amendment’s warrant requirement, which only the Supreme Court may create. The dissent further argued that the holding also carves out a new exception to the Court’s consistent holdings that article 1, section7 provides more privacy protections than does the Fourth Amendment. The dissent reasoned that Supreme Court rulings upholding companion seizures based on the fact that those people were vehicle passengers primarily reflect “concerns unique to the traffic stop context. In particular, they identify two entirely car-specific reasons that officers may order drivers or passengers out of a validly stopped vehicle without meeting the Terry standard: (1) the order is a ‘”de minimis”‘ additional intrusion relative to the stop itself and (2) weapons are easily concealed in car passenger compartments.” The dissent noted that the majority’s decision to apply the Mendez rule to pedestrians “ignores this reasoning and the limits it applies.” Instead, the majority rejected the automatic companion rule, yet refused to apply the Terry standard to the stop, replacing it with “total deference to the officer’s subjective belief…. by mischaracterizing all of our previous article I, section 7 cases as focusing on the officer’s stated “purpose” for the stop (rather than on the location of the stop).” The dissent then argued that the stop in this case does not meet the Terry standard. http://www.courts.wa.gov/opinions/pdf/919861.pdf

 


Division I Court of Appeals

State v. Caver: The Court upheld Terry Caver’s conviction for possession of methamphetamine, holding that the trial court did not violate Mr. Caver’s constitutional right to a fair trial when it denied his request to wear jail clothes at trial. The Court reasoned that the decision did not create an unacceptable risk of prejudice and did not erode the “physical indicia of [his] innocence,” as requiring him to wear jail clothes or shackles would, did not single him out as particularly dangerous or guilty, and “did not offend the dignity of the judicial process or restrict Caver’s ability to assist counsel and testify.” The Court further found that the exclusion of detailed testimony regarding his attempts to obtain drug treatment at jail after his arrest were not relevant to his unwitting possession defense when he had already been allowed to paint a broader picture of the circumstances of his arrest that would support that defense. Finally, the Court found that there was insufficient evidence that Mr. Caver would be forever unable to pay the costs of his unsuccessful appeal, and declined his request to deny appellate costs to the State. http://www.courts.wa.gov/opinions/pdf/737619.pdf


State v. Bluford: — The Court upheld Charles Bluford’s convictions for eight felony convictions for robbery and other charges. The Court found that the trial court did not abuse its discretion when it joined multiple counts against him and refused to sever those counts for trial. The Court reasoned that the charges were based on a series of acts committed together, that evidence of each was cross-admissible under the modus operandi exception to ER 404(b), and that the trial court had properly considered the four factors surrounding joinder of the offenses. However, the Court found that the trial court erred in denying Mr. Bluford’s request to instruct the jury on the lesser included offense of fourth degree assault to the indecent liberties charge, finding that, contrary to the trial court’s ruling, fourth degree assault does not require a higher mental state than indecent liberties. Finally, the Court held that the trial court erred in finding that Mr. Bluford is a persistent offender, as the State failed to prove the comparability of his out of state conviction. The Court reversed in part and remanded for resentencing. http://www.courts.wa.gov/opinions/pdf/730479.pdf

 


Division II Court of Appeals

State v. Shirts: The Court reversed the superior court’s denial of Jason Shirts’ motions to remit his legal financial obligations (LFOs) because there was no showing that the State had tried to collect on the LFOs. The Court found that Mr. Shirts has standing to appeal as an aggrieved party, reasoning that in light of the holding in Blazina, and contrary to the conclusion in Mahone, an offender can be aggrieved even if the State has not attempted to collect the debt. The Court further agreed that the superior court erred in denying Mr. Shirts’ petition on the basis that he had not alleged or shown that the State was seeking enforcement or collection of his LFOs, finding that the statute required the superior court in this instance to determine whether Mr. Shirts had made a satisfactory showing or “manifest hardship.” However, the Court declined to find that the court is obligated to hold an evidentiary hearing on the petitions, finding that the statute does not require such a hearing. http://www.courts.wa.gov/opinions/pdf/D2%2047740-8-II%20Published%20Opinion.pdf

 


Division III Court of Appeals

State v. Blizzard:  The Court upheld Daniel Blizzard’s conviction for first degree murder, find that a letter sent to the trial judge from the county prosecutor containing “inflammatory accusations of judicial bias” were not so explosive as to render the trial judge “incapable of fairly presiding over the proceedings.” The Court reasoned that the judiciary “is not vulnerable to manipulation by politically charged criticism,” and noted that the pre-trial rulings in this case had not all cut in favor of the State, including denial of a State motion to file enhanced charges that could have resulted in a mandatory life sentence for Mr. Blizzard. Further, the Court observed that Mr. Blizzard never filed a motion for recusal of the trial judge, and that there was evidence in the record to suggest the decision not to do so was tactical. Further, the Court found that the failure of the trial judge to recuse herself did not violate due process, as it did not fall into any of the three established categories of bias. Finally, the Court found that the warrants to search his phone records were not based on improperly obtained evidence, and that any remaining claims of prosecutorial misconduct were meritless and did not establish prejudice. Among these was a complaint that jail staff had seized privileged communications in a sweep of Mr. Blizzard’s jail cell, a claim that the Court took seriously, but found lacked prejudice to Mr. Blizzard when there was no evidence that the staff, let alone anyone at the prosecuting attorney’s office, had read the paperwork. http://www.courts.wa.gov/opinions/pdf/328660_pub.pdf


State v. Whitlock: The Court reversed Ralph Whitlock and David Johnson’s bench trial convictions for first degree burglary and first degree robbery, finding that the defendants’ public trial rights were implicated in this case due to the subject of the trial court’s in chamber sidebar conference. The conference concerned the scope of cross-examination of a witness regarding whether she had previously served as a police informant. Both counsel placed their recollections of the conference and the judge’s ruling on the record hours after the conclusion of the conference, but the conference itself was not recorded. The trial court further did not explicitly or implicitly weigh the Bone-Club factors prior to the conference. The Court distinguished State v. Smith, which had held that sidebar conferences did not implicate the public trial right, holding that it was the subject of the conference, not its appellation, that was of concern. The Court reasoned that the traditional purpose of a sidebar conference – to hear evidentiary objections without the delay involved in sending out the jury – was not met in the case, as here, of a bench trial. Further, the Court expressed concern for the fact that the argument was neither recorded nor promptly memorialized on the record.

Concurring, Judge Pennell joined the majority opinion in full but wrote separately to emphasize additional circumstances surrounding the majority holding. Particularly important, the concurrence observed, was the fact that there was no simultaneous recording in this case. “The fact that the attorneys placed their recollections of what happened on the record was an insufficient substitute,” the concurrence stated. “The human mind does not operate like a video or audio recorder.”

Dissenting, Judge Korsmo argued that Smith controls the case and that the Court should have found this a sidebar conference that did not implicate a public trial right, calling the majority “unduly squeamish” regarding the location of the sidebar conference and unreasonably concerned that it was not recorded. The dissent further argued that article IV, § 23 of the Washington constitution, a provision enacted at the same time as article I, §§ 10 and 22, recognized and ·enshrined in our constitution the judge’s power to act in chambers. http://www.courts.wa.gov/opinions/pdf/330737_pub.pdf


State v. Joseph: The Court affirmed Mr. Joseph’s second degree trespass, finding that a vehicle is a premises within the definition of the trespass statute. The Court reached its conclusion through a review of the legislative history of the first degree trespass statute, which had been amended by the legislature to rely upon a non-technical definition of building, such that a fenced area was not a building for the purposes of that statute.   Relying upon this, the Court found that a non-technical definition of premises was also justified, and held that the term “premises” used in the second degree trespass statute “is intended as a broad, catch-all provision since the 1979 amendment only excludes the narrow, ordinary “building” from the second degree trespass statute.” http://www.courts.wa.gov/opinions/pdf/329623_pub.pdf


State v. Clark: The Court declined to consider Joshua Clark’s challenge to his previously unchallenged legal financial obligations (LFOs) on appeal pursuant to RAP 2.5(a)(2). The Court concluded that RAP 2.5(a)(2) does not provide a vehicle for Mr. Clark to have his LFOs reviewed, as the facts previously found wanting in cases involving this rule went to an element of the cause of action; not, as here, to a procedural concern. The Court further declined to exercise its discretion with regard to a review of the LFOs, noting that Mr. Clark’s counsel had an opportunity to address them and successfully argued against an exceptional sentence instead. http://www.courts.wa.gov/opinions/pdf/328392_pub.pdf

CJE Wire: Case Law Updates — 2016 August 26

 


Federal Law


Ninth Circuit Court of Appeals

Godoy v. Spearman: The panel affirmed the district court’s judgment denying California state prisoner Enrique Anthony Godoy’s habeas corpus petition challenging his second-degree murder conviction based on juror misconduct, the denial of an evidentiary hearing, and the denial of a continuance. Because it was bound by Tarango v. McDaniel, 815 F.3d 1211 (9th Cir. 2016), the panel assumed that Mr. Godoy was entitled under clearly established law to a presumption of prejudice from a juror’s alleged misconduct – i.e., that she was conferring with a “judge up north” during the trial. The panel held that the California Court of Appeal did not unreasonably apply clearly established law in concluding that the government had rebutted the presumption. The panel rejected Mr. Godoy’s contention that the California Court of Appeal unreasonably determined the facts by failing to consider additional evidence on direct appeal that Mr. Godoy offered in his state habeas petition. The panel rejected Mr. Godoy’s contention that the California Court of Appeal unreasonably applied clearly established federal law when it concluded that the state trial court was within its discretion in refusing Godoy’s request for an additional evidentiary hearing to investigate his juror misconduct claim. The panel held that the California Court of Appeal’s affirmance of the trial judge’s denial of Mr. Godoy’s motion for a third continuance was not unreasonable.

Dissenting, Judge Fisher wrote that the California Court of Appeal denied an evidentiary hearing on the juror misconduct claim under the wrong legal rule, and then unreasonably applied Remmer v. United States, 347 U.S. 227 (1954), in concluding the presumption of prejudice was rebutted. http://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/25/13-56024.pdf

 


 Washington State Courts


Division III Court of Appeals

State v. C.B.: The Court affirmed Carter B.’s conviction for second degree criminal trespass after he and his friends entered a fenced yard, rang the doorbell, and shouted a racist comment through an open window before running away. The homeowner, Melvin Harris, an African-American man, later testified he was at first shocked and fearful, but this emotion was replaced with indignation when he saw two juvenile boys running from his home. Mr. Harris gave chase and caught one of the boys. His friend and C.B., who had dared the boys to perform the stunt, along with their parents, returned to the scene where Mr. Harris was holding their friend. The Court found that the actions of the boys exceeded the limitations of the common law license to approach a residential door, noting that “neither habits of the country nor local custom resulted in the Harris’ impliedly opening their private sidewalk and front porch to third parties for the purpose of dingdong ditching and shouting racist comments through open windows. The conclusion is not only reasonable, it appears inescapable.” The court further found that there were no First Amendment issues in this case, as the First Amendment has never extended to hate speech. Finally, the Court found that the trial judge’s failure to recuse himself was not improper, as comments that he made regarding his apparent disapproval of the case being referred for a possible diversion agreement were not unreasonable in the context in which they were made, and if anything, signaled that he would follow the law regardless of his personal feelings on the matter. http://www.courts.wa.gov/opinions/pdf/331105_pub.pdf