NO. 18-10450 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA Plaintiff-Appellee v. ROLAND EGUCHI, JR. Defendant-Appellant Appeal from the United States District Court for the District of Hawaii The Honorable Susan Oki Mollway, Senior United States District Judge District Court No. 1:08-cr-00714-SOM-1 DEFENDANT-APPELLANT’S OPENING BRIEF Peter C. Wolff, Jr. Federal Public Defender, District of Hawaii Craig Jerome Assistant Federal Defender 300 Ala Moana Boulevard, Suite 7104 Honolulu, Hawaii 96850 Telephone (808) 541-2521 Facsimile (808) 541-3545 E-Mail [email protected]Counsel for Roland Eguchi, Jr. Case: 18-10450, 02/15/2019, ID: 11197844, DktEntry: 4, Page 1 of 31
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NO 18-10450 - William S. Richardson School of Law · 2019-10-23 · NO. 18-10450 . IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. UNITED STATES OF AMERICA . Plaintiff-Appellee
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NO. 18-10450
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA Plaintiff-Appellee
v.
ROLAND EGUCHI, JR. Defendant-Appellant
Appeal from the United States District Court for the District of Hawaii The Honorable Susan Oki Mollway, Senior United States District Judge
District Court No. 1:08-cr-00714-SOM-1
DEFENDANT-APPELLANT’S OPENING BRIEF
Peter C. Wolff, Jr. Federal Public Defender, District of Hawaii Craig Jerome Assistant Federal Defender 300 Ala Moana Boulevard, Suite 7104 Honolulu, Hawaii 96850 Telephone (808) 541-2521 Facsimile (808) 541-3545 E-Mail [email protected] Counsel for Roland Eguchi, Jr.
1. Standards of review. ............................................................................... 17 2. Due process. ........................................................................................... 17 3. Law of the case. ..................................................................................... 22
Conclusion ....................................................................................................... 25 Statement of Related Cases Form 8 Certificate of Compliance
Table of Authorities Cases Dent v. West Virginia, 129 U.S. 114 (1889) ................................................... 17 Goss v. Lopez, 419 U.S. 565 (1975) ................................................................ 19 In re Vaughan, 2016 WL 878308 (CA9 Feb. 29, 2016) (unpublished) .......... 17 Land v. Salazar, 911 F.3d 942 (CA9 2018) .................................................... 18 Liberty Mut. Ins. Co. v. Equal Emp’t Opportunity Comm’n, 691 F.2d 438 (CA9 1982) ..................................................................... 17 Morrissey v. Brewer, 408 U.S. 471 (1973) ..................................................... 20 Saravia v. Sessions, 905 F.3d 1137 (CA9 2018) ............................................ 19 Swarthout v. Cooke, 562 U.S. 216 (2011) ...................................................... 18 Townsend v. Burke, 334 U.S. 736 (1948) ....................................................... 20 United States v. Alexander, 106 F.3d 874 (CA9 1997) ............................ 22‒23 United States v. Aquino, 794 F.3d 1033 (CA9 2015) ............................... 16, 21 United States v. Comito, 177 F.3d 1166 (CA9 1999) ..................................... 20 United States v. Cuddy, 147 F.3d 1111 (CA9 1998) ...................................... 17 United States v. Evans, 883 F.3d 1154 (CA9 2018) ....................................... 22 United States v. Hall, 912 F.3d 1224 (CA9 2019) .................................... 16, 22 United States v. Havier, 155 F.3d 1090 (CA9 1998) ...................................... 17 United States v. Hill, 2019 WL 471559 (CA9 2019) ...................................... 20 United States v. King, 608 F.3d 1122 (CA9 2010) ....................................... 6‒7
Cases United States v. Loy, 237 F.3d 251 (CA3 2001) ............................................. 22 United States v. Perez, 526 F.3d 543 (CA9 2008) .......................................... 20 United States v. Raya-Vaca, 771 F.3d 1195 (CA9 2014) ............................... 19 United States v. Siegel, 753 F.3d 705 (CA7 2014) ......................................... 21 United States v. Soltero, 510 F.3d 858 (CA9 2007) (per curiam) .................. 22 United States v. Vanderwerfhorst, 576 F.3d 929 (CA9 2009) ........................ 20 Wolff v. McDonnell, 418 U.S. 539 (1974) ................................................ 17‒18 Youngberg v. Romeo, 457 U.S. 307 (1982) .............................................................. 17 Statutes 18 U.S.C. §3231 ................................................................................................ 1 18 U.S.C. §3583 ................................................................................................ 1 18 U.S.C. §3742 ................................................................................................ 1 28 U.S.C. §1291 ................................................................................................ 1 Rule Fed. R. App. P. 4 ............................................................................................... 1 Constitutional Provision U.S. Const., amend. V ....................................................................................... 2
When you lie about this—and I consider like trying to trick your probation officer on the drug test as a lie too—you make a mockery of any attempt by the probation officer to help you or to monitor your behavior, because if they don’t have a true picture of what your behavior is, then I don’t see how they can be doing anything at all that’s worthwhile. And the same with me. If I don’t have facts on which to base a decision, then I don’t see how my decision can make any sense at all. And so the court system cannot operate—we become useless in other words. You just totally undermine the reason to have a court making decisions, the reason to have a probation office working with you.
ER 58 (reporter’s typography silently emended). But, the court then relented,
I’ll take a chance here because [the probation officer’s] recommending it and he’s worked with you so much more than I have, but it’s not much rope that I’m giving you. The slightest report from him of a problem will mean you come back into court. …. It cannot happen that you lie to your probation officer again. You need to know this. That’s going to be not something that I will overlook again. …. If I see you sitting in that chair, you kind of know what to expect.
ER 59 (reporter’s typography silently omitted). At the conclusion of the
hearing, the court summarized: “Okay. Do everything your probation officer
tells you to do. Whatever you do—you know, you’ve heard me say this at least
five times in this hearing—don’t lie again to him. Don’t try to trick him again.
Okay? Because I don’t know how to express this strongly enough: I’ll come
down like a ton of bricks on you. Okay?” ER 64.
The court’s remarks clearly signaled that abeyance would continue as
long as Eguchi remained compliant with the conditions of his supervised
not assert that Eguchi had violated his conditions of supervision by engaging in
conduct that constituted kidnapping, threatening, assault, or drug dealing; the
probation officer merely asserted that he had violated the felon association
condition by having been arrested with Lee. ER 69; see also DC ECF 175 2, 5–
6; ER 38 (supervised release condition prohibiting commission of any crime).
The initial hearing on the new violation allegation occurred before a
different district court judge (Senior District Court Judge Kay) than the judge
who had held the other five violations in abeyance (Senior District Court Judge
Mollway). Eguchi denied the new violation allegation. ER 68. And the
government submitted its case on the association violation on the basis of the
probation officer’s recitation of the police report’s contents:
[T]he government would proffer the statement of facts that’s contained in the amended request for course of action. There’s, as Your Honor had noted, a Honolulu police report dated October 18th, 2018, that puts the defendant, Mr. Eguchi, and Mr. Lee at the same place at the time of the arrest. And so the government submits that there is evidence that would support Mr. Eguchi affiliated himself with a convicted felon, Mr. Lee, in violation of the terms and conditions of his supervised release.
ER 69–70. Defense counsel accepted “that stipulation,” but noted it failed to
prove a violation of the association condition because there was no evidence
Eguchi knew Lee was a felon, pointing the court to United States v. King, 608
F.3d 1122 (CA9 2010), for the proposition that “‘non-association conditions
prohibit only knowing contact with persons that the supervisee knows to be
felons.’” ER 70–71 (counsel quoting King, 608 F.3d at 1128 (reporter’s
transcription emended with the King Court’s original emphases)).
After conferring with the probation officer, the government suggested
that, “instead of having an evidentiary hearing to prove up violation number
six,” it was “prepared to go forward on the first five, just the first five violations
and recommend revocation and imposing a sentence today.” ER 71–72. Senior
District Court Judge Kay reminded the government that dropping the new
violation would result in maintaining abeyance, not imprisonment:
According to the write-up here, at the time of his—that he admitted the five violations … on August 20th of this year [before Judge Mollway], and at that time the probation officer recommended that his violations be held in abeyance. The Court was hesitant to follow this recommendation given the egregious nature of Mr. Eguchi’s violations, including that he attempted to use a device to subvert his drug test and twice lied about his drug use. In holding the violations in abeyance, the Court sternly admonished Mr. Eguchi regarding his violations and warned him against engaging in further noncompliant behavior. Problem we’re faced with now is that if we’re not going to consider this additional alleged violation, then it would seem that we would still hold them in abeyance. So I think we have to go ahead with an evidentiary hearing.
ER 72 (reporter’s typography silently emended). The government then asked
for a continuance “to call the appropriate witnesses necessary to prove the
[association] violation.” ER 72. The court granted the motion for a continuance,
noting, “I think we’re going through an unnecessary exercise [defense counsel],
but you have a right to compel that, that’s your right.” ER 72–73.
Senior District Court Judge Mollway resumed presiding over the case at
the continued hearing. The hearing opened with the government opting “not to
pursue [the association] violation.” ER 76. Instead, the government again urged
“that the violations that were previously found and held in abeyance should
now serve as the basis for revocation.” ER 76–77. The government candidly
explained that, even after further investigation, it could not prove the
association violation (nor had it spotted any other violation it could prove):
[O]ver the past two weeks, the Government has been working with Probation, and Probation had reached out to HPD and the detective assigned to the case. And so I want to just be clear that we haven’t been—we’ve been doing our due diligence and follow up in order to see whether or not the violation could be proved or any additional violations, Your Honor. And … [we] determined that we wouldn’t be proceeding.
ER 77; see also ER 78–79 (defense counsel’s recap of prior proceedings on the
new violation). The remainder of the hearing consisted of the court and the
parties (mainly defense counsel) sparring over whether the court could rescind
abeyance absent proving up the additional violation or some similar factual
change of circumstances. ER 79–95.
Defense counsel took the position that, absent some proven change of
circumstances (such as a new instance of proven noncompliance), due process
precluded the court from rescinding abeyance and, ultimately, requested that the
court maintain abeyance and continue Eguchi on his initial term of supervised
release. ER 95; see also ER 79–95. The government and the court took the
position that abeyance could be rescinded at any time, without any need to
prove a new instance of noncompliance. ER 79–95; see, particularly, ER 80–81
(court muses “what more do I need to revisit the issue” of abeyance “and say,
‘Now I will revoke’,” when abeyance was a “benefit” to Eguchi and there is “no
prejudice” to him when abeyance is rescinded); ER 83 (court queries, “[a]nd
even if he doesn’t violate, if he doesn’t seem to me to be making good use of
that opportunity, why isn’t it enough for me to say, ‘I held these things in
abeyance; now I’m going to revoke’?”). The court continued the hearing for the
parties to further brief the issue. ER 94.
Notably, though, when probed by the court during the hearing on what
change of circumstances justified rescinding abeyance and imprisoning Eguchi
for the initial set of violations, the probation officer relied solely upon the
allegations of criminal conduct and associating with a felon that the government
admitted it could not prove:
[The] Probation Office is deeply concerned with the allegations, especially, you know, following the new arrest. It goes along—as indicated in our recommendation, Your Honor, there’s a pattern of arrest and concern, you know, dating back to May. And following the last revocation hearing, it was our hope that the subject was
going to demonstrate conduct that reflects a sober and law-abiding lifestyle. However, the subsequent arrest and the allegations of kidnapping, terroristic threatening, was deeply concerning, Your Honor, and so we filed our petition. Subsequent to that revocation hearing, you know, we learned of that new information and that subsequent information—or we learned the new information that suggested there was a different violation—or a new violation that existed that warranted further investigation, Your Honor. And that the subsequent, complaint, the arrest was withdrawn. And that’s where we lie, Your Honor.
ER 90 (reporter’s typography amended). The court clarified that the probation
officer was talking about the association allegation arising out of the arrest for
kidnapping and threatening. ER 91. When similarly asked what new
circumstances existed to justify rescinding abeyance, the government also relied
on the new allegations of criminal conduct, albeit acknowledging that “they are
just allegations, they’re not charges, they’re not convictions, but” they were
“deeply concerning,” nonetheless. ER 91.
In their written briefs, the parties maintained their positions. Defense
counsel’s brief elaborated that disturbing the status quo required some proven
change in circumstances, and also argued that, in Eguchi’s case, rescission for
any reason shy of noncompliance would violate due process for lack of notice.
DC ECF 186. In its brief, the government merely asserted that the initial
revocation hearing on the five admitted violations sufficed to comport with due
process, such that subsequently rescinding abeyance raised no independent due
The court’s reasoning mirrored a god-giveth-god-taketh-away syllogism:
because Eguchi had no due process right to abeyance based on the probation
officer’s hopefulness, and abeyance was thus wholly a matter of the district
court’s grace, he had no due process right that could be violated by rescission,
no matter when or why it occurred:
But I’m looking at it as the probation officer was hopeful in August. He’s now reconsidering that, granted, on the ground of unsubstantiated allegations, but Mr. Eguchi did not have any constitutional right to have his probation officer be hopeful in the face of five violations that he admittedly committed. So he had no right to have [the probation officer] say, “You know what? I’m hoping you’re going to be okay and you had some setback, but I’m with you, Mr. Eguchi.” He had no right to that, uhm, subjective view by the probation officer. That is not something he was entitled to have. That he got it is not something he should be allowed to count on having forever. …. I could have rejected in August the probation officer’s hopefulness and sentenced him in August. If the probation officer has removed that hopeful attitude, why can I no longer do what I could have done in August even ignoring these unsubstantiated allegations which are the basis for the present absence of hopefulness because Mr. Eguchi never had an entitlement to hopefulness from his probation officer or to my acceptance of that hopefulness?
ER 112–113 (reporter’s typography silently emended).
In accord with that sentiment, the district court purported to not rely on
the new allegations, declined to find any facts regarding them, and ruled that the
probation officer’s hopelessness and pessimism sufficed to justify rescinding
I’m having a real problem with accepting the premise that once I hold something in abeyance, the discretion I have at the time I hold something in abeyance becomes more circumscribed because I held something in abeyance. If that’s a standard, as I say, we will really hesitate to hold anything in abeyance.
So I am revoking Mr. Eguchi’s supervised release status. In doing so, I am not finding that he committed any new supervised release violation. I am not finding that he has done what an anonymous caller and a third party report to the probation officer assert. I am, instead, relying on five violations that he committed, he admitted having committed, in August but that I held in abeyance even while expressing concern about the seriousness of those violations.
In no longer holding those in abeyance, I am relying on the probations officer’s changed recommendation and the—at the August hearing I expressed concern about relying on the probation officer’s optimism and recommendation that I hold the violations in abeyance. The probation officer is no longer expressing that same attitude and is instead very worried about Mr. Eguchi. But I am not making new factual findings that he—Mr. Eguchi did or did not commit new violations. I am resurrecting concerns that I did express in August about the seriousness of the violations that I found in August[.]
ER 126–127. The court thus laundered the unproven allegations through the
probation officer’s lost hope and newfound pessimism. Accord ER 126–127
with ER 101–102 (court acknowledges that the probation officer was no longer
optimistic due to the unproven allegations); ER 110 (court again acknowledges
that the probation officer lost hope because of the “unsubstantiated arguments
and claims”); ER 112–113. The court sentenced Eguchi to eight months’
decided that the appropriate thing to do with the five admitted violations was to
hold them in abeyance and continue Eguchi on his initial supervised release
term, the law of the case doctrine generally precluded the district court from
revisiting the issue. Counsel discerns no reason why the district court’s
abeyance ruling would stand uniquely immune from the law of the case
doctrine. The court’s abeyance ruling was a ruling, like any other.
This Court holds that a district court abuses its discretion under the law
of the case doctrine unless:
1) the first decision was clearly erroneous; 2) an intervening change in the law has occurred; 3) the evidence [before the court] is substantially different; 4) other changed circumstances exist; or 5) a manifest injustice would otherwise result.
Alexander, 106 F.3d at 876. The only one of these even potentially applicable in
Eguchi’s case would be the changed circumstances trigger. The only
circumstance that had changed, however, was that the probation office had
ceased to be hopeful. No new violations of Eguchi’s supervised release were
proven. No additional aggravating facts about the original violations had come
to light. No material change in his sincerity or familial support had occurred.
And no transgressions of the implied or express terms under which the court
had granted abeyance (failing to obey, or lying to, the probation officer) were
even alleged, much less proven. The district court, moreover, recognized that
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