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Short Wins – The Barry Bonds Opinion Edition

The big news in this batch of opinions is not the conspiracy to import lobsters case, but, rather the Barry Bonds appeal.

Mr. Bonds was prosecuted for evading a prosecutor’s questions while testifying in a grand jury. And, now, thanks to an en banc panel of the Ninth Circuit, his conviction was reversed because giving a nonresponsive answer is not a crime. Though just about any teenager could tell you that.

To the victories:

you win.jpg1. United States v. Bengis, Second Circuit: Appellants were convicted of conspiracy to import lobsters from South African waters in violation of both South African and U.S. law. The district court imposed a restitution order, holding each of the Appellants jointly and severally liable for the market value of all of the lobsters harvested. The Second Circuit reversed the order as to one of the Appellants, who had joined the conspiracy later than the others. The court held that the Appellant was only liable for the value of lobsters taken before he joined the conspiracy if he knew, or reasonably should have known, about the conspiracy’s past imports. The court remanded for the district court to make this determination.

2. United States v. Sandidge, Seventh Circuit: After Appellant pled guilty to being a felon in possession of a firearm, the sentencing court imposed several standard and special conditions of supervised release. The Seventh Circuit vacated all of these conditions because the sentencing court offered no explanation as to their propriety, and conducted no review of the statutory sentencing factors. The court noted that several of the conditions were too vague, including requirements that Appellant meet “family responsibilities” and “not associate with any persons engaged in criminal activity.” The court also noted that several conditions were broader than necessary, such as a requirement not to “consume . . . any mood-altering substances.” The court remanded for resentencing on the issue of conditions of supervised release.

3. United States v. Thomas, Eighth Circuit: While on supervised release, Appellant was arrested on suspicion that he had been involved in a shooting. The government petitioned for revocation of supervised release, presenting the arresting officer as its sole witness. Based on the officer’s testimony, the district court concluded that the evidence was sufficient to support a “Grade A violation,” and sentenced Appellant to 33 months. The Eighth Circuit reversed and remanded for resentencing, holding that the evidence was only sufficient to support a Grade B violation, because the district court did not find that Appellant had committed a crime of violence, a controlled substance offense, or an offense involving a specific type of firearm, or that he had committed an offense punishable by a term of more than 20 years in prison.

4. United States v. Bonds, Ninth Circuit: Appellant was convicted of obstruction of justice for making a single “rambling, non-responsive answer to a simple question” during a grand jury proceeding. The Ninth Circuit reversed, holding that the rambling statement could not constitute obstruction of justice because it was not “material” to the grand jury’s decision. While Appellant’s response did not answer the question, it did not “enlighten, obfuscate, confirm, or deny anything within the scope of the question posed.” The court noted that Appellant could not be tried again on the charge, because double jeopardy applies to a reversal for insufficient evidence.

Defense Attorneys: Dennis P. Riordan, Donald M. Horgan, Ted Sampsell Jones
5. United States v. Mazzarella, Ninth Circuit: After being convicted of twelve felony counts related to a mortgage fraud scheme, Appellant moved for a new trial, arguing that the government had withheld exculpatory evidence in violation of Brady v. Maryland. Appellant pointed to the government’s failure to inform her about (1) an informal immunity agreement with one government witness, (2) another witness’s belief that she had entered into an agreement with the government, which the government denied, and (3) a comment made by yet another witness suggesting that the government might help her secure a job with the FBI after cooperating. Appellant also argued that her Fourth Amendment rights had been violated when a government witness copied documents from Appellant’s office at the government’s request. The district court refused Appellant’s request for discovery and an evidentiary hearing on both issues, and denied the motion for a new trial. The Ninth Circuit reversed, holding that discovery was necessary to determine what immunity agreements existed, and whether any of the documents copied by the government witness had, in fact, been turned over to the government. The Ninth Circuit remanded with instructions to reconsider the Brady and Fourth Amendment claims after permitting discovery and an evidentiary hearing.

Defense Attorneys: John D. Cline, Mark H. Allenbaugh
6. United States v. Washington, Tenth Circuit: Appellant was arrested after the rental car that he was driving, while accompanied by a friend, was found to contain marijuana and methamphetamine. Appellant was convicted of possession of controlled substances with intent to distribute and aiding and abetting that offense. The Tenth Circuit reversed Appellant’s conviction, and remanded with instructions to dismiss the indictment. The court held that there was insufficient evidence to infer that Appellant had knowledge of the presence of a large amount of drugs, since the drugs were not on his person or personal property within the car. The court rejected the government’s argument that the smell of marijuana was sufficient to infer this knowledge, noting that the smell would only suggest the use of marijuana, not the presence of a sufficient amount to sustain a conviction for distribution.

Defense Attorney: Neil Darin Van Dalsem
7. Dimanche v. Brown, Eleventh Circuit: Appellant, an inmate, brought a civil rights suit under 42 U.S.C. § 1983 against prison officials for spraying him with teargas in retaliation for filing grievances about prison conditions. The district court dismissed the suit for failure to exhaust administrative remedies, as well as for failure to state a claim. The Eleventh Circuit reversed on both issues, and remanded for further proceedings. The court held that Appellant’s grievance was properly directed to the head of the State Department of Corrections, as it was a retaliation claim, and that the district court had not explained how Appellant had failed to state his claims.

8. United States v. Peters, Eleventh Circuit: Appellant was convicted of several offenses related to a tax-fraud conspiracy. He was sentenced to 144 months’ imprisonment, and was ordered to pay over $5 million in restitution. While Appellant was incarcerated in California, the government sought to collect the restitution by filing an application for a writ of execution to seize Appellant’s California home. The district court with which the application was filed, the Southern District of Florida, refused Appellant’s request to transfer the application to California, and granted the application. The Eleventh Circuit concluded that the language of the Federal Debt Collection Procedures Act required the transfer of the application to the district where the defendant resides. The Eleventh Circuit vacated the order and remanded with instructions to transfer the application to California.

9. United States v. Mathis-Gardner, D.C. Circuit: Appellant filed a motion for early termination of supervised release. The district court summarily denied the motion. The D.C. Circuit reversed, holding that while the district court need not spell out its reasons for denying a motion to terminate supervised release in an order, its reasons must be apparent from something in the record, such as from a hearing on the motion, or from an order denying a previous motion. The D.C. Circuit held that the record in the case did not indicate the district court’s reasoning, vacated the order denying the motion to terminate supervised release, and remanded for reconsideration.

Defense Attorneys: A.J. Kramer, Michelle M. Peterson