CJE Wire: Case Law Updates — 2018 July 23


 Washington State Courts

Washington State Supreme Court

State v. Blair:  In an opinion authored by Justice Johnson and joined by Chief Justice Fairhurst and Justices Wiggins, Gonzalez, Owens, and Yu, the Court found that any challenge of the validity of a prior conviction for purposes of offender score calculation must be based on a constitutional defect on its face.  The Court found established precedent, including State v. Ammons, required this result, and that Mr. Blair’s argument, that his prior convictions for theft of snowmobiles under the theft of a motor vehicle statute, does not raise a constitutional issue. 

Concurring, Justice Gordon McCloud, joined by Justices Stephens and Madsen, argued that the majority’s conclusion lacked support in Ammonsand created a “ridiculous anomaly” wherein a defendant can raise facial challenges to prior convictions on statutory and jurisdictional grounds in a personal restraint petition, but not at the prejudgment sentencing.  The concurrence also argued that the majority’s bar on trial courts engaging in statutory interpretation when presented with facially clear challenges at sentencing “misreads Ammonsand betrays a lack of trust in the ability of trial court judges to conduct statutory analysis.”  However, the concurrence concluded that Mr. Blair did not provide sufficient documents here to support his claim and concurred in the result. http://www.courts.wa.gov/opinions/pdf/939951.pdf

Personal Restraint of Schley:  In an opinion raised by Justice Owens and joined by Justices Wiggins, Gordon McCloud, and Yu, the Court found that a fact that necessarily results in a DOSA revocation must be provide by the higher proof standard required at revocation hearings, preponderance of the evidence.  The Court granted relief to Mr. Schley, as the Department in his hearing was required to prove a fighting infraction that resulted in his DOSA revocation by only the “some evidence” standard.  Specifically, Mr. Schley was not allowed to contest the fighting infraction that resulted in administrative suspension and ultimately the DOSA revocation, a circumstance that the Court found violated due process.  Finally, the Court held that if the underlying infraction was not proven by a preponderance of the evidence, treatment must be reinstated.

Justice Gonzalez concurred in the preponderance of the evidence standard imposed for an infraction leading to a DOSA revocation. However, Justice Gonzalez wrote separately to express concern regarding the “very low standard of proof used in prison disciplinary cases and its effect on liberty interests.” Specifically, such cases rely on the “some evidence” standard, which the justice argued is insufficient in the context of serious prison infractions.  Justice Gonzalez argued that the preponderance standard applied to DOSA revocations should be extended to all prison infractions. 

Chief Justice Fairhurst, joined by Justices Johnson, Madsen, and Stephens, dissented, arguing that Mr. Schley was provided due process at every level of the proceeding in this case.  The dissent argued that the infraction was proven by some evidence at a hearing for which Mr. Schley was provided notice and an opportunity to be heard, and that the following DOSA revocation provided similar protections.  The dissent argued that the opinion conflicted with settled precedent and would allow an inmate to retain DOSA status after being terminated from treatment. http://www.courts.wa.gov/opinions/pdf/942803.pdf

State v. Dennis:  In an en banc decision authored by Justice Johnson, and joined by Justices Wiggins, Madsen, Gordon McCloud, Owens, and Stephens, the Court found that the portion of RCW 9.41.040 that allows an offender to petition for restoration of firearm rights after five or more consecutive years in the community without being convicted or charged with a crime is satisfied by any five year conviction free period, and that the period need not immediately precede the petition for restoration.  The Court found that the language of the original bill supported this interpretation, holding that the original bill focused on the fact that petitioners’ prior crimes must have washed out for sentencing purposes when they applied for restoration.  The Court reconciled the language prohibiting petitions for restoration while crimes were pending to mean not that the clock would start over for any conviction, but that even a misdemeanor could be escalated to a felony, which conviction would require a re-starting of the clock for restoration purposes. 

Dissenting, Justice Gonzalez, joined by the Chief Justice and Justice Yu, argued that the majority reading of the statute was not what the people intended in passing the bill.  Rather, the dissent argued, a plain reading of the statute mandated that a petitioner must be crime-free for five years immediately preceding the petition for restoration.  http://www.courts.wa.gov/opinions/pdf/950831.pdf


Division II Court of Appeals

In Re Restraint of Bufalini: The Court found that the Department of Corrections (DOC) violated Mr. Bufalini’s due process rights by failing to inform him that he could have his request for counsel considered on a case-by-case basis at his urinalysis (UA) violation hearing.  The Court further held that RCW 9.94A.662(3), the statute allowing DOC to revoke a DOSA, did not violate the separation of powers.  The Court thus granted Mr. Bufalini’s petition and vacated the DOC decisions on his alleged UA violation and revocation of his DOSA.  Mr. Bufalini was ordered released from confinement and transferred to community custody status pursuant to his DOSA, and all time spent in total confinement beyond the 36.75 month initial term of confinement under his DOSA was to be credited against the community custody term.  The Court allowed DOC to begin again in its process in response to the allegation of a UA violation, but must follow the Court’s opinion and governing law in so doing.  The Court did not reach other challenges raised, including Mr. Bufalini’s claims that DOC improperly applied RCW 9.94A.662(3), that his UA was so unreliable that reliance on its results violates due process, and that DOC’s failure to preserve his UA test sample violates due process.  http://www.courts.wa.gov/opinions/pdf/D2%2050785-4-II%20Order%20Publishing.pdf

State v. Classen:  The Court found that kidnapping is a course of conduct crime, but that Mr. Classen’s convictions for kidnapping and attempted kidnapping did not constitute a continuing course of conduct as they were based on two separate acts interrupted by the victim exiting her car and attempting to run away.  The court also found that Mr. Classen’s counsel did not provide ineffective assistance by failing to raise a voluntary intoxication defense, as no facts alleged at trial supported the claim that Mr. Classen was unable to formulate the required mens rea for the crimes due to intoxication. However, the Court found that counsel did provide ineffective assistance by failing to request an inferior degree instructions on the assault charge, as the evidence could have supported the lesser offense.  The Court reversed the assault conviction and remanded but affirmed the kidnapping and harassment convictions.  http://www.courts.wa.gov/opinions/pdf/D2%2049762-0-II%20Published%20Opinion.pdf

State v. Imokawa:  The Court reversed Mr. Imokawa’s convictions for vehicular homicide and vehicular assault, finding that superseding causation negates an element of both crimes, and due process requires the State to prove the absence of a superseding cause when the issue is properly raised by the defense, and the trial court erred in failing to so instruct the jury.  The Court found that dismissal with prejudice was not the only proper remedy, however, as there was sufficient evidence to support the jury’s guilty verdicts on both charges.  The case was remanded for further proceedings.http://www.courts.wa.gov/opinions/pdf/D2%2049995-9-II%20Published%20Opinion.pdf

State v. Harris (Pers. Rest. Of Harris):  In this partially published opinion, Mr. Harris sought to vacate his guilty plea and In Re Barrpleas to second degree murder and second and third degree assault, claiming that the plea were not voluntary and intelligent, that the superior court’s calculation of his offender score violated doubt jeopardy, and that newly discovered evidence undermines the factual basis for his plea.  In the published portion of this opinion, the Court held that Mr. Harris’ plea was voluntary and intelligent when the record supported an assertion that he was aware of the original charge for purposes of the Barr plea, the record shows the relationship between Mr. Harris’ actions and the original plea, the record demonstrates he was aware of the evidence available to the State on the original offense, and the record shows he was aware of the nature and consequences of his plea bargain. The Court declined to review the sentence, finding Mr. Harris’ waiver of his right to appeal the sentence valid.  http://www.courts.wa.gov/opinions/pdf/D2%2049641-1-II%20Published%20Opinion.pdf


 Federal Law

Ninth Circuit Court of Appeals

United States v. Mickey: The panel affirmed convictions for two counts of sex trafficking by force, threats of force, fraud, or coercion in violation of 18 U.S.C. §§ 1591(a) and (b)(1). The panel held that the district court did not err by refusing to give a specific unanimity instruction regarding which precise combination of means the defendant used to cause the victim to engage in a commercial sex act.  The panel rejected the defendant’s contention that force, threats of force, fraud, and coercion are separate elements of the crime. The panel held that although the prosecution technically erred in failing to include the statutory phrase “or any combination of such means” in the indictment, inclusion of that phrase in the jury instructions and Special Verdict Form did not constitute a constructive amendment of the indictment.  The panel wrote that the defendant cannot show prejudice and concluded that there was no plain error.  http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/30/16-50343.pdf

United States v. Turner:  The panel affirmed convictions for two separate fraud schemes pursuant to trials in 2009 and 2012.  The panel held that the defendant’s Sixth Amendment right to counsel was not violated in the 2009 case when the district court partially rejected the eighth request for a continuance, after continuing the trial for over two and half years. Because the district court reasonably concluded that the defendant had repeatedly alternated between invoking his right to self-representation and his right to counsel in order to manipulate proceedings and cause delay, the panel rejected the defendant’s claim that the district court violated his Sixth Amendment right to counsel in the 2012 case by requiring him to represent himself. The panel held that the district court did not abuse its discretion in determining that the defendant was not entitled in either trial to CJA funds to hire a psychiatrist to conduct a mental evaluation, and that the district court did not err in failing to hold a sua sponte competency hearing in the 2012 trial.  Because a reasonable court would not doubt the defendant’s competency, the panel held that the district court did not err in denying the defendant’s motion for mistrial and in its decision not to terminate the defendant’s self-representation.  http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/27/14-50238.pdf

United States v. Holden:  The panel affirmed the defendant’s convictions for mail and wire fraud, conspiracy to commit mail and wire fraud, and money laundering offenses; vacated his custodial sentence and restitution order; and remanded for further proceedings. Assuming without deciding that the defendant’s argument to the contrary is not foreclosed by precedent, the panel held that this court’s caselaw that “participating” in a scheme to defraud is forbidden by the mail and wire fraud statutes does not amount to the creation of a common-law crime in violation of separation-of-powers principles, and that the district court therefore did not err by instructing the jury that it could find the defendant guilty for “participating in” a scheme to defraud. The panel vacated the custodial sentence because the record does not support the district court’s conclusion that the defendant exercised sufficient control or organizational authority over his co-conspirator to qualify for a two-level “organizer” enhancement under U.S.S.G. § 3B1.1(c), and the panel could not say whether the district court would impose the same sentence if it kept the correct Sentencing Guidelines range in mind throughout the process.

The panel observed that the district court’s written restitution order – which both required immediate restitution in full and set a mandatory, unconditional schedule of payments during the period of incarceration – is internally inconsistent, and inconsistent with the district court’s oral announcement that the defendant lacked the ability to make immediate restitution in full.  The panel therefore vacated the restitution order and remanded so that the district court can strike the lump-sum payment requirement from the judgment. http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/26/16-30186.pdf

Echavarria v. Filson:  The panel affirmed the district court’s grant of habeas corpus relief to Jose Echavarria, who was convicted and sentenced to death for killing FBI Special Agent John Bailey. Mr. Echavarria claimed that there was a constitutionally intolerable risk of bias, based on the fact that several years earlier Agent Bailey had investigated for possible criminal prosecution Nevada District Judge Jack Lehman, who presided over Mr. Echavarria’s trial.  The panel reviewed the Nevada Supreme Court’s decision de novo, rather than with AEDPA deference, because the Nevada Supreme Court adjudicated only Mr. Echavarria’s claim of actual bias, not his distinct claim of risk of bias.  The panel held that Mr. Echavarria’s right to due process was violated because for an average judge in Judge Lehman’s position there would have been a constitutionally intolerable risk of bias. http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/25/15-99001.pdf

State v. Sleugh:  The panel affirmed the district court’s affirmance of a magistrate judge’s order denying Damion Sleugh’s motion to unseal codefendant Shawndale Boyd’s applications to issue subpoenas pursuant to Fed. R. Crim. P. 17(c).  The panel held that there is no presumption of public access under the First Amendment or common law that attaches to Rule 17(c) subpoena applications and their supporting materials; and that parties can only justify accessing sealed or in camera Rule 17(c) subpoenas, subpoena applications, and supporting documents by demonstrating a “special need.”  The panel held that Mr. Sleugh failed to demonstrate a “special need” for Boyd’s Rule 17(c) subpoena materials, and that there is a continuing need to seal them. http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/23/17-10424.pdf