United States v. Kenneth Scott Gordon. Decided July 24, 2017.
In the Ninth Circuit, Ms. McMillen represented the appellant who challenges his conviction for conspiracy to distribute methamphetamine in part on the ground that the district court erred in denying his motion to suppress items seized during his arrest in violation of the Fourth Amendment.
Topics: First Amendment; Religious Freedom and Restoration Act; Controlled Substances Act; marijuana.
In the Ninth Circuit, Ms. McMillen represented the appellant who challenges her conviction under the Controlled Substances Act (CSA) as a violation of the Religious Freedom and Restoration Act, and argues that the classification of marijuana under CSA Schedule I violates Fifth Amendment substantive due process. Trial counsel drafted the briefs. Ms. McMillen delivered oral argument before the Ninth Circuit.
Topics: Export of Classified Defense Information; Violation of Arms Export Control Act; Prompt Presentment Rule; 18 U.S.C. 3501(c); F.R.C.P. 5(a).
Appellant challenged his convictions for Conspiracy to Export Classified Defense Information to China, Violation of the Arms Export Control Act, Communicating National Defense Information to Aid a Foreign Nation, Unlawful Retention of National Defense Information, money laudering and tax fraud. As lead counsel in the appeal, Ms. McMillen argued among other issues that the district court erred in denying appellant’s motion to suppress various statements he made to F.B.I. investigators in violation of Rule 5 of the Federal Rules of Criminal Procedure and 18 U.S.C. § 3501(c), which error was not harmless.
Topics: RICO enterprise; Sixith Amendment right to counsel; ineffective assistance of legal counsel.
In the Ninth Circuit, Ms. McMillen represented the appellant who challenged his convictions on two counts of murder in aid of racketeering and the resulting life sentence without the possibility of parole under the United States Sentencing Guidelines. Among other issues, she argued that the district court violated appellant’s Sixth Amendment right to counsel when it permitted the government to use a surreptitiously obtained recording between appellant and a government agent that contained incriminating statements.
United States v. Mendoza. Decided October 18, 2011.
Topics: mortgage fraud; residential lending practices; Sixth Amendment right to counsel; Sixth Amendment right to jury trial; constructive amendment of indicment.
In the Ninth Circuit, Ms. McMillen represented the appellant in a large mortgage fraud prosecution. Among other issues, she argued that the district court constructively amended the indictment in its instructions to the jury, which allowed the jury to convict appellant on charges for which he did not receive fair notice, and that the district court imposed a sentence in excess of the statutory maximum and resulting in reversible plain error.
Topics: United States Sentencing Guidelines; sentencing entrapment.
In the Ninth Circuit, Ms. McMillen successfully challenged appellant's sentence under the theory of sentencing entrapment in this drug distribution case relating to the large federal sting operation on Oahu's North Shore.
United States v. Rangel-Rogriguez. Decided March 9, 2011.
Topics: Transportation of Illegal Aliens into the United States; United States Sentencing Guidelines; sentencing factors under 18 U.S.C. § 3553(a).
After a retrial the appellant challenged his sentence. On appeal to the Ninth Circuit, Ms. McMillen argued that the district court committed procedural error in resentencing appellant because it treated the United States Sentencing Guidelines as mandatory instead of advisory and failed to consider the factors under 18 U.S.C. § 3553(a), or otherwise under the totality-of-the-circumstances standard, ultimately imposing an unreasonable sentence of 188 months.
United States v. Coward. Decided Feburary 17, 2011.
Topics: False Statements in an Application for a United States passport; United States Sentencing Guidelines.
In this case concerning conviction for Making a False Statement in an Application for United States Passport, Ms. McMillen argued in the Ninth Circuit that the district court failed to consider the sentencing options for the guidelines range that was within Zone B of the sentencing table, pursuant to Guidelines § 1B1.1(h) and § 5C1.1, and failed to consider the totality of the circumstances, resulting in a procedurally defective and unreasonable sentence that must be vacated.
Beidler v. Mitchell, et al. Decided Feburary 1, 2011.
Topics: Equal Protection Clause of the United States Constitution; federal habeas corpus from a state conviction, 28 U.S.C. § 2254; race-based use of peremptory challenges in jury selection; ineffective assistance of trial counsel.
The appellant/petitioner was convicted of murder and related crimes in a California state court. In this appeal from a denial of a federal habeas petition, Ms. McMillen argued that the trial court erred in permitting the prosecutor to excuse during jury selection the only two African-American prospective jurors, and then excuse the only African-American prospective alternate juror, in violation of the Equal Protection Clause of the United States Constitution and Batson v. Kentucky.
United States v. Valenzuela. Decided December 15, 2010.
Topics: multiple drug distribution conspiracies versus single conspiracy; constructive amendment of indictment; prosecutorial misconduct; application of sentencing enhancements.
In one of the largest crystal methamphetamine conspiracies prosecuted in the United States District Court for the District of Hawaii, Ms. McMillen represented the appellant who challenged in the Ninth Circuit her conviction for conspiracy to distribute crystal methamphetamine and the resulting sentence. She argued among other issues that insufficient evidence proved the single drug conspiracy charged in the indictment, instead demonstrating multiple smaller conspiracies.
Halloran v. Bennett; et al. Decided March 4, 2010.
Topics: federal habeas corpus petition from state conviction; attempted sexual assault; actual innocence.
In this appeal, Ms. McMillen represented the petitioner, a Hawaii state prisoner, who appealed the district court's denial of his motion to reconsider the court's denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his conviction and 20-year sentence for attempted sexual assault. She argued that the petitioner should be granted federal habeas relief based on the Fifth and Fourteenth Amendments because he is actually innocent.
Topics: Conspiracy to Commit Marriage Fraud; Sixth Amendment right to effective assistance of counsel; plea agreements.
Ms. McMillen argued in the Ninth Circuit that the appellant was denied effective assistance of counsel guaranteed under the Sixth Amendment when, pursuant to the advice of counsel, he entered the plea agreement whereby he waived fundamental rights in exchange for sentencing advantages that were illusory.
Topics: competency to stand trial; Sixth Amendment right to counsel; judicial recusal; United States Sentencing Guidelines.
This appeal concerned convictions after a retrial on a 100-count indictment for a fraudulent investment scheme and conviction for, among other charges, mail fraud, wire fraud, and money laundering. In the Ninth Circuit Ms. McMillen argued, among other issues, that trial judge should have recused himself inasmuch as the record demonstrated the court’s pervasive bias against the defendant as to make fair judgment impossible. She also argued that the upward adjustments to defendant’s sentence under the U.S. Sentencing Guidelines absent any support in the court’s findings of fact andconclusions of law violated defendant’s rights as set forth under the holdings of Apprendi v. New Jersey and Blakely v. Washington. The Ninth Circuit remanded the matter for sentencing.
Topics: Filing False Federal Income Tax Returns; plea agreements; United States Sentencing Guidelines.
In this appeal to the Ninth Circuit concerning filing false income tax returns, Ms. McMillen argued that in violation of the Sixth Amendment the district court imposed a sentence exceeding the maximum authorized by the facts established in the plea agreement and admitted to by the defendant, thus requiring reversal and remand for resentencing according to the United States Sentencing Guidelines as modified by the Supreme Court in United States v. Booker.
State of Hawaii v. Gauntt-Bryant. Decided September 29, 2004.
Topics: Abuse of Family and Household Member; constitutional right to testify.
The appellant was convicted of abuse of a family or household member. On appeal, Ms. McMillen successfully argued that the trial court failed to engage appellant in the required colloquy concerning her constitutional right to testify in her own defense both before the trial and at the close of the trial, which failure was not harmless beyond a reasonable doubt.
United States v. Mirikitani. Decided August 31, 2004.
Topics: Fifth Amendment due process; Sixth Amendment due process; Fraud, Theft, Bribery against State and Local Governments, 18 U.S.C. § 666.
In this appeal by a former city official from conviction for fraud and bribery under 18 U.S.C. § 666, Ms. McMillen argued that in violation of due process the district court erred in finding that the nexus requirement under § 666 was a jurisdictional element for the court to decide, rather than a factual element of the offense which should have been submitted to the jury and proven beyond a reasonable doubt by the government. Ms. McMillen also argued that § 666 is unconstitutional on its face because it was enacted outside the scope of Congress’ authority under the spending clause of Article I of the Constitution.
State of Hawaii v. Schneidewind. Decided July 17, 2002.
Topics: Abuse of Family and Household Member; constitutional right to testify; constitutional right to allocution.
In the Hawaii Supreme Court, Ms. McMillen successfully argued that the trial court erred in failing to engage appellant in the required colloquy concerning his constitutional right to testify both before the trial and at the close of the trial, and that the court trial violated Appellant’s constitutional right to allocution before imposing the sentence.