Federal Public Defender

              Northern District of California

                    Barry J. Portman

                   Federal Defender

New Cases and Developments in Federal Criminal Defense

This page summarizes developments of note in federal criminal defense. A more expansive discussion of these cases, and of other new legal challenges and ideas, can be found on the Ninth Circuit blog. The Ninth Circuit blog contains Federal Defender Jon Sands' weekly Ninth Circuit summaries, interesting new defense challenges and theories posted by AFPDs David Porter and Steve Sady, and the “Case o’ The Week” memos by AFPD Steve Kalar. Because the blog is updated more frequently than this web site, and because it has contributions from several defender offices, the Ninth Circuit blog is a useful starting place for the latest developments in federal criminal defense.

CJA counsel are encouraged to comment on the blog postings – many new ideas have been fleshed out and enhanced by attorney commentary.

To search the blog, once within the site hit, “Cntrl-F.” This will generate a search window. Type in a term and hit search. Note that many postings are also located within the blog archives, which can also be searched using "Ctnrl-F."

Summaries of New Federal Cases of Interest:

● The Ninth Circuit struck a blow to wiretap litigation in United States v. Callum, __ F.3d __, 2005 WL 901819 (9th Cir. April 20, 2005). Northern District attorneys Mark Rosenbush, Richard Mazer, Joyce Leavitt, and Michael Stepanian fought this wiretap. The decision -- and Pregerson's concurrence -- harshly criticize the lack of supervision in the N.D. Cal USAO which produced this shoddy wiretap. Unfortunately, the opinion is all bark and no bite: despite the harsh language, the Ninth still upholds the wire. This decision creates new, bad wiretap law and -- in the opinion of many -- eviscerates the intent of Title III. An en banc petition is on its way: wish Rosenbush and his crew luck on en banc review.

● The Supreme Court has again foreshadowed the demise of the Almendarez-Torres case in its recent decision, Shepard v. United States, 2005 WL 51694 (Mar. 7, 2005). The very good holding of the Shepard case is that the government cannot rely on police reports, or other collateral evidence, to prove that a prior conviction is a "crime of violence" and, therefore, an ACCA predicate. The more interesting discussion, however, is Justice Souter's Section III -- where he and three other judges complain that the use of prior convictions may violate Apprendi. Justice Thomas concurs, but argues that Souter doesn't go far enough -- such use of a prior conviction for Thomas does violate Apprendi. The upshot is that five Justices would arguably extend Apprendi to include the use of prior convictions to enhance a sentence, if those convictions are not alleged in an indictment and proved beyond a reasonable doubt at trial. As discussed in greater depth in the Ninth Circuit blog, now is the time to preserve all objections to enhanced sentences based on prior convictions -- there is much hope that the Supreme Court will revisit Almendarez-Torres soon.

● The Ninth Circuit has finally weighed in on Booker in United States v. Ameline, __ F.3d __, 2005 WL 350811 (9th Cir. 2005), as amend. Feb. 10, 2005. This is actually Ameline II – a previous version of the case addressed Blakely procedures in the Circuit. In this latest opinion, the Court found that Booker requires consideration of all of the factors of 18 USC § 3553(a), and not just the federal sentencing guidelines. While a district court must consider the guidelines, it can also consider other factors as well – such as previously prohibited departures. The Court reaffirmed the protections of Federal Rule of Criminal Procedure 32, and kept the burden firmly on the government for proving facts used to create higher sentences. Finally, and of great immediate interest, the Ninth found that the defendant had established Booker plain error on his appeal – and emphasized that it would be the rare case that wouldn’t meet the plain error test. This is a thoughtful opinion with much good Booker discussion. A more complete discussion and a link to the opinion can be found on the Ninth Circuit blog.
   As of February 21, the mandate on Ameline II has been stayed while the government seeks rehearing en banc.

  NOTE: On March 11, 2005, Ameline II was withdrawn and submitted for en banc consideration. See order here. Steve Hubachek, of the San Diego Defender, argued the en banc case.

● The Ninth Circuit has found that federal program for the treatment of sex offenders is unconstitutional. See United States v. Antelope, 395 F.3d 1128 (9th Cir. 2005). The SABER program required mandatory polygraphs of sex offenders during supervised release or probation. During these sessions, the defendant was asked questions about his prior sexual history. Any answers – including those involving children – were not privileged and could be used for prosecution. The Ninth found that this mandatory questioning violated a defendant’s rights to be protected against self-incrimination. A full discussion of the opinion can be found on the Ninth Circuit blog.

● We in the Northern District are having considerable success with Morales-Izquierdo motions in illegal reentry cases. See Morales-Izquierdo v. Ashcroft, 388 F.3d 1299 (9th Cir 2004). That fairly recent decision found that certain administrative decisions used by the INS to deport aliens violated the controlling immigration statute. AFPD Lara Vinnard in particular has pushed this creative motion to success in San Jose. E-mail Lara for samples of her briefs. A full discussion of the Morales-Izquierdo case and litigation strategies can be found on the Ninth Circuit blog.

● A recent Ninth Circuit decision is disappointing in its endorsement of photospreads. In United States v. Beck, 393 F.3d 1088 (9th Cir. 2005) the Court upheld a photospread that was claimed to be suggestive. Beck will, unfortunately, be a central decision in any case involving photospreads or eyewitness identification. A more complete discussion of Beck can be found on the Ninth Circuit blog.

● The Supreme Court has issued a decision that essentially exempts drug-dog “sniffs” from Fourth Amendment analysis, in Illinois v. Caballes, 125 S.Ct. 834 (2005). In this case, a traffic stop was followed by a quick sniff by a police narcotics dog. When the dog alerted, a large amount of marijuana was recovered. The Court found no problem with this procedure. Note that there are several ways to try to limit and distinguish this case; a more complete discussion can be found on the Ninth Circuit blog.