Case Law Update (February 2015)

The following criminal cases of note were decided during the last two weeks:

Federal Law

 United States Supreme Court

Holt v. Hobbs: Justice Alito, writing for a unanimous Court, held that Arkansas Department of Correction should have provided a reasonable exception to its prohibition against beards to the petitioner, a devout Muslim for whom shaving is forbidden pursuant to his believes. Despite this, Mr. Holt proposed that the Department allow him to grow a half-inch long beard as a compromise in an attempt to address the Department’s stated fears that contraband could be concealed in facial hair. The Court held that the Department’s grooming police violates the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) insofar as it prevented Mr. Holt from growing a half-inch beard in accordance with his religious beliefs. The Court found that Mr. Holt had proven the sincerity of his religious beliefs and that the government’s action substantially burdened the exercise thereof. The Court chastised the District Court for concluding there was no substantial burden because Mr. Holt could practice his religion in other ways, and found that court erred in suggesting that the burden on Mr. Holt’s religious exercise was slight because he had testified he would get credit from his religion for attempting to follow his beliefs, even if barred from so doing. Finally, the District Court erred in improperly relying on testimony that not all Muslims believe that men must grow beards, observing that RLUIPA’s guarantees are “not limited to beliefs which are shared by all of the members of a religious sect.” As Mr. Holt had satisfied his burden, the Department needed to show that substantially burdening his religious exercise is “the least restrictive means of furthering [a] compelling governmental interest.” The Court found that the Department failed to show that enforcing its beard prohibition against petitioner furthers its compelling interests in preventing prisoners from hiding contraband and disguising their identities. The Department further did not prove that its policy is the least restrictive means of furthering that interest, a standard that is “exceptionally demanding” and requires the government to “sho[w] that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting part2017.” The Court noted that any security concerns could be satisfied by a simple search, and the question of disguise could be solved by requiring inmates to be photographed periodically both with and without beards.  Finally, the court found that the Department failed to adequately explain the substantial under inclusiveness of its policy, since it permits ¼-inch beards for prisoners with medical conditions and more than ½ inch of hair on the head.


Justice Ginsburg, joined by Justice Sotomayor, concurred, noting that unlike the exemption approved in the Hobby Lobby matter, accommodating Mr. Holt’s religious belief would not detrimentally affect others who do not share those beliefs.


Justice Sotomayor also wrote a concurring opinion, writing separately to explain her understanding of the applicable legal standard. The concurrence observed that the Court’s opinion did not preclude deferring to prison officials’ reasoning when that deference is due, but stressed that the deference that must be “extend[ed to] the experience and expertise of prison administrators does not extend so far that prison officials may declare a compelling governmental interest by fiat.” The concurrence agreed that the Court correctly noted that the Department inadequately responded to the less restrictive policies that Mr. Holt brought to their attention, including policies used in prisons in other states. The concurrence observed that the government need not refute each and every conceivable alternative regulation scheme, but only the ones offered by the challenger, and this the Department in this case did not do.


Christeson v. Roper: In this per curiam opinion, the Court found that in denying Mr. Christeson’s request for substitute counsel, so as to have representation that could argue that he was entitled to equitable tolling of the statute of limitations without the conflict of interest faced by his original counsel, who had missed the filing deadline, the Eighth Circuit had contravened the Court’s decision in Martel v. Clair. The Court granted Mr. Christeson’s petition for certiorari. Clair had held that a motion for substitution of counsel should be granted if it is in the interests of justice, and that the factors a court of appeals should consider in determining whether a district court abused its discretion in denying such a motion “include: the timeliness of the motion; the adequacy of the district court’s inquiry into the defendant’s complaint; and the asserted cause for that complaint, including the extent of the conflict or breakdown in communication between lawyer and client (and the client’s responsibility, if any, for that conflict).” The Court found that the lower courts had not adequately accounted for the factors set forth in Clair.


Justice Alito, joined by Justice Thomas, dissented, arguing that Mr. Christeson had other options to have his grievance heard, such as plenary review, and claiming that making exceptions to the statute of limitations for every defendant whose attorneys missed a filing deadline would weaken the equitable tolling policy, meant to come into play only on rare occasions.



Ninth Circuit Court of Appeals


Sessoms v. Grounds: The en banc court amended its September 22, 2014 opinion on remand from the United States Supreme Court and denied a rehearing in this habeas case which saw Mr. Sessoms challenging his convictions for murder, robbery, and burglary. The en banc court reversed the district court’s judgment and remanded with instructions to retry or release Mr. Sessoms. The Court found that the district court’s holding that Mr. Sessoms did not make an unequivocal request for an attorney was an unreasonable application of United States Supreme Court precedent. The en banc court reconsidered the case in light of Salinas v. Texas, 133 S. Ct. 2174 (2013), which involved a noncustodial interrogation, and which suggests that Davis’s requirement of an unambiguous invocation of a right to counsel applies to pre-Miranda statements.   The en banc court observed that this case, in contrast, involves a custodial interrogation in which the defendant should have been informed of his rights before he could knowingly waive them, but nevertheless assumed that the clear invocation requirement of Davis applies to Mr. Sessoms. With this requirement clearly in mind, the en banc court held that, under the circumstances, a reasonable law enforcement officer would have understood Mr. Sessoms’s statements as an unambiguous request for counsel, which should have cut off any further questioning under clear Supreme Court precedent. The en banc court concluded that because Mr. Sessoms’s confession likely substantially swayed the jury toward conviction, the constitutional error was not harmless.


Reluctantly dissenting, Chief Judge Kozinski wrote that what the court must decide is not what Mr. Sessoms meant or the officers understood, but whether it was unreasonable for the state courts to conclude that a reasonable officer would have been perplexed as to whether Mr. Sessoms was asking for an attorney.


Dissenting, Judge Callahan wrote separately to stress that she reads the Supreme Court’s remand as precluding the majority’s conclusion that Mr. Sessoms’s comments were so unambiguous as to render the California Court of Appeal’s opinion unreasonable.


Judge Murguia, joined by Chief Judge Kozinski and Judges Silverman, Callahan, and Ikuta, dissented.   Judge Murguia could not say, under the deference mandated by the AEDPA, that it was objectively unreasonable for the California Court of Appeal to hold that a police officer could have interpreted Sessoms’s statement as merely a possible request for a lawyer, which would not require the officer to stop the interrogation.


United States v. Hsiung: The panel filed an amended opinion affirming the convictions of all defendants and the sentence of the only defendant to challenge the sentence, denied a petition for panel rehearing, and denied a petition for rehearing en banc on behalf of the court, in a criminal antitrust case that stems from an international conspiracy between Taiwanese and Korean electronics manufacturers to fix prices for Liquid Crystal Display panels known as TFT-LCDs in violation of the Sherman Act. The panel held that venue in the Northern District of California was proper. The panel held that the defendants waived the argument that an extraterritoriality defense bars their convictions, and held that, viewing the jury instructions as a whole, nothing misled the jury as to its task. The panel held that the district court properly applied a per se analysis under the Sherman Act, rather than the rule of reason, to this horizontal price-fixing scheme. The panel held that the Foreign Trade Antitrust Improvements Act of 1982, 15 U.S.C. § 6a (FTAIA), is not a subject-matter jurisdiction limitation on the power of the federal courts but a component of the merits of a Sherman Act claim involving nonimport trade or commerce with foreign nations. The panel held that the indictment contained the factual allegations necessary to establish that the FTAIA either did not apply or that its requirements were satisfied. The panel explained that import trade does not fall within the FTAIA at all; it falls within the Sherman Act without further clarification or pleading. The panel therefore disagreed with the defendants’ view that the indictment was insufficient because it did not allege import trade under the FTAIA. The panel held that the government sufficiently pleaded and proved that the conspirators engaged in import commerce with the United States and that the price-fixing conspiracy violated § 1 of the Sherman Act. The panel explained that if the government proceeds on a domestic effects theory, which it did here, the government must plead and prove the requirements for the domestic effects exception to the FTAIA, namely that the defendants’ conduct had a “direct, substantial, and reasonably foreseeable effect” on United States commerce. The panel held that the indictment sufficiently alleged such conduct. The panel disagreed with the government that the FTAIA is an affirmative defense to a Sherman Act offense, and held that the domestic effects instruction did not result in a constructive amendment of the indictment. The panel rejected the defendants’ sufficiency of evidence challenge to the domestic effects exception. The panel noted that even disregarding the domestic effects exception, the evidence offered in support of the import trade theory alone was sufficient to convict the defendants of price-fixing in violation of the Sherman Act. The panel affirmed a $500 fine imposed on AU Optronics pursuant to the Alternative Fine Statute, 18 U.S.C. § 3571(d). The panel held that § 3571(d) permits the fine to be based on the gross gains to all the coconspirators rather than on the gains to AU Optronics alone.   The panel wrote that no statutory authority or precedent supports AU Optronics’ interpretation of the statute as requiring joint and several liability or imposition of a “one recovery” rule.


United States v. McElmurray: The panel vacated a criminal judgment and remanded in a case in which the defendant was convicted of possessing child pornography, and distributing it through an online peer- to-peer file-sharing network. The panel rejected the defendant’s contention that convicting him of possessing and distributing the same images amounted to double jeopardy. The panel explained that neither possession nor distribution of child pornography is necessarily a lesser-included offense of the other. The panel held that, as the defendant concedes, conduct such as his constitutes distribution under United States v. Budziak, 697 F.3d 1105 (9th Cir. 2012), which held that maintaining child pornography in a shared folder, knowing that doing so will enable others to download it, if another person does download it, amounts to sufficient evidence to sustain a conviction for distribution. The panel rejected the government’s contention that the defendant waived his Fed. R. Evid. 403 objection to the district court’s admission pursuant to Fed. R. Evid. 404(b) of interview statements he made in connection with a prior state law child-pornography conviction, and in a letter written to an inmate a few months before the present crime was charged. The panel explained that a trial objection to what the coward had already definitively ruled unobjectionable, on the defendant’s in limine motion, would have amounted to taking exception to an evidentiary ruling already made, which Fed. R. Evid. 103 says is unnecessary. The panel explained that because remand is necessary under Rule 403, it did not need to decide whether the government correctly invoked Rule 404(b). The panel held that United States v. Curtin, 489 F.3d 935 (9th Cir. 2007) (en banc), requires reversal in this case under Rule 403 because the record, briefs and oral argument establish that the district court admitted the statements and the letter without reading or listening to the material. The panel wrote that the government has not claimed that the error was harmless, much less borne its burden of proof of harmlessness.


Judge Christen concurred in part and dissented in part. She concurred in the portions of the majority opinion regarding double jeopardy and sufficiency of evidence to support the distribution conviction, as well as the majority’s conclusion that the district court erred by making a Rule 403 determination with respect to the interview statements without reviewing them. She dissented from the majority’s conclusion that the district court made a similar error with respect to the letter.   She wrote that because the district court’s pretrial ruling did not definitively address the specific letter exhibit that the government ultimately sought to introduce and because the defendant did not object at trial under Rule 403, she would review for plain error the district court’s determination that the probative value of the letter outweighed its prejudicial effect, and would affirm the district court’s ruling.


United States v. Davis: The panel affirmed the district court’s denial of a motion pursuant to 18 U.S.C. § 3582(c)(2) for reduction of sentence based upon the retroactive amendments to the Sentencing Guidelines governing crack cocaine. The panel held that the district court’s determination that it lacked jurisdiction to reduce the defendant’s sentence because the sentence was not “based on” the Guidelines is compelled under United States v. Austin, 676 F.3d 924 (9th Cir. 2012), where the defendant’s Fed.R.Crim.P. 11(c)(1)(C) plea agreement neither called for him to be sentenced within a particular Guidelines range, nor made clear that the basis for the specified term is a Guidelines range applicable to the offense, or showed that a sentencing range is evident from the agreement itself.


Concurring, Judge Berzon agreed with the per curiam opinion, given the holding of Austin, which she believes was incorrectly decided and should be reconsidered en banc.


United States v. Ortiz: Affirming a conviction, the panel held that the district court did not abuse its discretion in admitting the opinion testimony of the defendant’s probation officer, identifying the defendant’s voice speaking primarily Spanish on wiretapped calls, notwithstanding that the probation officer was not fluent in Spanish and had only heard the defendant speak English. The panel held that the probation officer’s familiarity with the defendant’s voice was substantially more than the minimal familiarity required by Fed. R. Evid. 901(b)(5) for admission of lay voice identification testimony. The panel explained that the defendant’s challenges ultimately go to the weight rather than the admissibility of the testimony.


United States v. Rice: The panel affirmed convictions for conspiracy, money laundering, and failure to appear, but vacated the sentence and remanded for resentencing and recalculation of restitution and forfeiture. The panel held that although the district court should have acted more promptly in granting the defendant’s request to appear pro se, the district court did not violate the defendant’s Sixth Amendment right to self-representation. The panel held that the defendant’s Sixth Amendment rights were not violated at a March 6, 2009, initial appearance and arraignment on the conspiracy and money laundering charges, which proceeded precisely as if the defendant were representing himself with the assistance of standby counsel. The panel wrote that even assuming that some delay in addressing the defendant’s March 6 self-representation request can be attributed to the defendant’s failure to appear for a pretrial conference, the district court, which did not conduct a Faretta hearing until July 28, 2009, and in the interim struck a dozen pretrial motions because they were not filed by counsel, should have taken up the self-representation request more expeditiously. The panel held that the district court’s actions during the July 28 initial appearance and arraignment on the failure-to- appear charges ensured that there was no constitutional violation. The panel explained that the district court, when granting the defendant’s request to proceed pro se, placed the defendant in the same situation on July 28 as would have obtained had his Faretta motion been granted on March 6 by inviting him to refile all motions, extending the time to file motions to a date to which the defendant stipulated, and giving him more time to prepare for trial than he would have had otherwise. The panel found no violation of the defendant’s statutory right to a speedy trial. In light of the government’s concession that the district court improperly based the sentence, restitution, and forfeiture on a loss amount that included money laundered before the defendant joined the conspiracy, the panel remanded for resentencing and recalculation.



Washington State Law


Washington State Supreme Court


State v. Walker: In an opinion authored by Justice Yu and joined by the Chief Justice and Justices C. Johnson, Fairhurst, Owens, and Gonzalez, the Court overturned Mr. Walker’s conviction as an accomplice to first degree murder, first degree assault, first degree robbery, solicitation, and conspiracy. The Court found that the prosecuting attorney committed egregious misconduct in the use of a Power Point presentation during closing argument that repeatedly expressed the prosecutor’s opinion on guilt, including slides bearing Mr. Walker’s photograph and phrases such as “Guilty beyond a reasonable doubt.” The prosecutor further juxtaposed photographs of the victim with those of Mr. Walker and his family, and altered some of these to include inflammatory captions as well. The Court found that the slides served no legitimate purpose and their prejudicial effect could not have been cured by a timely objection. The Court was unable to conclude with any confidence that Mr. Walker’s convictions were the result of a fair trial. The Court’s opinion soundly chastised the prosecuting attorney for his tactics in this case, expressing its frustration that the office continued to defend such practices despite earlier opinions clearly barring their use. The Court also found that Mr. Walker was properly instructed on accomplice liability, and the lack of a unanimity instruction on accomplice liability did not violate his right to a unanimous jury verdict.


In a concurrence, Justice Stephens, joined by Justice Wiggins, agreed that the State’s misconduct during closing argument requires reversal of Mr. Walker’s conviction, but joined Justice Gordon McCloud’s view that the State was entitled to call out admitted evidence during closing argument and that the misconduct was not as far reaching as the majority suggests. Justice Stephens concurred with the majority resolution of the remaining issues.


In her concurrence, Justice Gordon McCloud agreed that the prosecutor’s closing argument contained so much personal opinion, vouching, and inflammatory imagery that reversal was necessary. However, Justice Gordon McCloud wrote separately to stress that not all of the slides in the prosecutor’s power point presentation were of such a nature. Some used admitted evidence and, while they were inflammatory, they were also permissible. The concurrence also disagreed with the majority’s endorsement of the wording of the elements, or “to convict” instruction. Justice Gordon McCloud expressed concern that the wording would be confusing, and would advise trial courts instead to use a simple accomplice liability instruction along with a basic to convict instruction to go back to using an accomplice liability instruction along with a simple “to convict” instruction referring solely to the defendant.


Division Two Court of Appeals


State v. Pittman: In this partially published opinion, the Court affirmed Mr. Pittman’s convictions for eluding and DUI. The Court concluded that the charging document against Mr. Pittman was adequate. Mr. Pittman’s complained of omission, that the methods used by police to flag him down was not part of the charging document, was also found by the Court to not be an essential element of the crime, and therefore need not be included in that document.


State v. Fehr: The Court affirmed Ms. Fehr’s convictions for possession of methamphetamine and delivery of methamphetamine. The Court found no error in the trial court re-playing an admitted tape recording to the jury in her absence. The Court further found that there was no misconduct in the court’s admonishment to Ms. Fehr not to react with facial expressions to testimony during trial. However, the court found that the trial court provided the jury with special verdict forms that relieved the State of its burden to prove every element of the law authorizing the school bus route stop sentencing enhancements. The Court therefore reversed Ms. Fehr’s school bus stop sentencing enhancements and remanded.



Division Three Court of Appeals


State v. West: The Court affirmed Mr. West’s convictions, finding that if counsel was ineffective in failing to ask the trial court, as well as the jury, to acquit him by reason of insanity, this omission did not prejudice Mr. West. The Court further found that counsel’s failure to object to the prejudicial testimony of one of the State’s experts did not fall below the standard of care owed by defense counsel. The Court found that there was sufficient evidence to show that Mr. West understood the nature and quality of his acts and wrongfulness of his conduct when he brutally assaulted his cell mates, and that despite his clear mental illness, he was capable of standing trial.


State v. Wilcoxon: In this partially published opinion, the court affirmed Mr. Wilcoxon’s convictions related to the burglary of a bowling alley in Clarkston. The Court did not agree that Mr. Wilcoxon’s right to confront witnesses was violated when the court declined to sever the trials and permitted his co-defendants statements to come into evidence via another witness. The Court concluded that the statements were not testimonial and therefore there was no Sixth Amendment violation.

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