Judge questions post-sentencing dismissal request in sheriff deputy's civil rights case
A former federal judge now representing the victim is asking the 9th Circuit to appoint him and the victim's other lawyer as special counsel to defend the convictions.
The Trump-appointed U.S. attorney’s new attempts to dismiss criminal indictments in Los Angeles are drawing mixed reactions from the federal judges who must consider the unusual requests.
One also has drawn the interest of a law professor and former federal judge who is warning of potential far-reaching implications if the U.S. Department of Justice succeeds in its request to dismiss a criminal civil rights case against an ex-sheriff’s deputy convicted by a jury and sentenced by a judge.
In a 26-page filing with attorney Caree Harper, Paul C. Cassell, a professor at the University of Utah College of Law, cited case law that calls sentencing “an exclusively judicial function” and said the DOJ “is now attempting to deploy a motion to dismiss to effectively overturn” former Los Angeles County sheriff’s Deputy Trevor Kirk’s four-month prison sentence.
“This intrusion into the sentencing domain is improper,” according to the filing. “And if the Government’s unprecedented maneuver works here, it will no doubt serve as a roadmap for other cases.”
Cassell, who served as a U.S. District judge in the District of Utah from 2002 to 2007, joined the case as a lawyer for Kirk’s victim, Jacey Houeston, after prosecutors last week moved to dismiss the case entirely, despite previous statements that they determined Kirk deserved a misdemeanor conviction.
Cassell’s involvement comes as he’s taking a similar stance against the DOJ’s dismissal request in the criminal case against aviation giant Boeing Inc., and it brings new attention to a controversial reexamination of Kirk’s case made in the early days of Bill Essayli’s leadership in the U.S. Attorney’s Office in the Los Angeles-based Central District for California.
Four prosecutors who worked Kirk’s case withdrew from it in April after Essayli moved to reduce his felony conviction to a misdemeanor, and three joined dozens of other prosecutors in leaving the office completely. More prosecutors have quit for other reasons in the months since, and several have spoken anonymously to journalists at the Los Angeles Times and Bloomberg about Essayli’s decisions to pursue politically minded indictments about illegal immigration and related protests, in conflict with DOJ policy and against the advice of more experienced prosecutors.
Essayli’s office moved to dismiss the case against Kirk on July 29, the same day the office moved to dismiss the criminal indictment against Andrew Wiederhorn, the former CEO of the publicly traded FAT Brands, Inc., who was accused of defrauding the Internal Revenue Service and company investors by concealing $47 million in shareholder loans paid to him. It was his 120th day in office, which was the last day of his interim appointment.
The U.S. Senate must confirm interim appointees within 120 days, but President Donald Trump hasn’t nominated Essayli for Senate confirmation. The Article III judges in the Central District could’ve appointed a replacement but didn’t, so Trump named Essayli the Central District’s acting U.S. attorney, which keeps him on the job for 210 more days before he needs Senate confirmation.
DOJ cites ‘government enforcement priorities’
The dismissal motions in Kirk’s and Wiederhorn’s cases drew mixed reactions from judges.
U.S. District Judge Wesley L. Hsu, a 2023 Joe Biden appointee, dismissed Wiederhorn’s felon in possession of a firearm case without question through a motion filed July 29 under Rule 48 of the Federal Rules of Criminal Procedure, which says prosecutors “may, with leave of court, dismiss an indictment, information, or complaint.”
U.S. District Judge R. Gary Klausner took a different route in the main criminal case against Wiederhorn, which includes charges of wire fraud, tax evasion and obstructing the IRS and has three codefendants: the FAT Brands company, Chief Financial Officer Rebecca Hershinger and outside accountant William Amon.
Instead of dismissing the indictment, Klausner ordered prosecutors to show cause why he should do so. His four-paragraph order said case law says courts must “grant considerable deference to the prosecutor” under Rule 48, but “to honor the purpose of the rule, the trial court at the very least must know the prosecutor’s reasons for seeking to dismiss the indictment.”
“Here, the Government’s Motion lacks any such explanation,” Klausner wrote.
Assistant U.S. Attorney Kevin Reidy’s response said the alleged conduct doesn’t “fall within the scope” of criminal prosecution priorities described in Department of Justice policy guidance memos on Feb. 5 and May 12. The priorities, according to the memos, include immigration enforcement, human trafficking and smuggling; transnational organized crimes, cartels and gangs; and “protecting law enforcement personnel.”
“The Executive branch’s decision to focus its limited prosecution resources on other types of harm is not clearly contrary to the public interest,” Reidy wrote. “Where, as here, a dismissal is based on government enforcement priorities, the Court should defer to the government’s evaluation of those priorities and grant a motion to dismiss.”
Klausner signed the dismissal order on Thursday.
Dismissal requested after bail on appeal rejected
In Kirk’s case, Assistant U.S. Attorney Robert Keenan filed the dismissal motion on July 29, eight days after U.S. District Judge Stephen V. Wilson rejected the DOJ’s request that Kirk be granted bail pending appeal.
Assistant U.S. Attorney Jennifer Waier, who is Essayli’s second in command, appeared for Keenan during a brief hearing on July 21 in which Judge Wilson said his “hands were tied” by the fact that Kirk’s appeal has no substantial legal issues with viable chances of success.
Kirk currently must surrender to the Bureau of Prisons by Aug. 28 to begin the four-month prison sentence Wilson imposed on June 2.
A jury on Feb. 6 convicted him of deprivation of rights under the color of law for a confrontation with Houseton on June 24, 2023, outside a Winco grocery store in Lancaster, about 70 miles northeast of Los Angeles. Jurors agreed he used a dangerous weapon and/or caused bodily injury, which elevated his conviction to a felony, but Essayli struck a rare “post-trial agreement” that said the Justice Department would move to strike the jury’s felony finding.
Wilson’s May 27 order did not strike the felony verdict, but it essentially mooted it by striking the felony allegation in Kirk’s indictment.
Wilson, a 1985 Ronald Reagan appointee, cited the fact that previous prosecutors offered Kirk a misdemeanor plea deal before trial, but he didn’t mention that the offer prohibited Kirk from working in law enforcement while the new agreement does not. He did, however, warn of a likely prison sentence because “straight probation does not sufficiently reflect Defendant’s breach of duty and the manner in which he breached that duty.”
Legal Affairs and Trials with Meghann Cuniff is a reader-supported project that utilizes my 20 years of reporting experience in traditional media to bring you in-depth news about major legal issues. If you want to support my work, consider upgrading to a paid subscription.
Keenan, who took over the case in April after the trial prosecutors withdrew, asked for no prison time, and he reminded Wilson in a filing last week that he said “a sentence of imprisonment would be unreasonable and, if memory serves, intolerable.”
After Wilson sentenced Kirk to prison, “the issue was presented again: What are we doing with this case?” Keenan said during a 45-minute hearing on Monday.
“We decided, you know, this is not a case where we’re comfortable letting the conviction stand,” Keenan said.
Wilson had not yet issued his order as of Friday morning. He said Monday he must “give further thought to it, because it’s required.”
“I don’t say that because I just want time. I do have to think about this,” Wilson said.
Cassell’s supplemental filing with Harper likens the dismissal request to the DOJ’s ongoing attempt to dismiss the criminal fraud case against Boeing in the Northern District of Texas, where prosecutors “entered into a binding non-prosecution agreement even before the district court had ruled on a dismissal motion.”
The DOJ “appears to be pursuing a strategy it has recently pursued elsewhere—specifically, a strategy of not allowing district courts to make a reasoned evaluation of the underlying reasons for a motion to dismiss,” Cassell wrote.
Cassell represents family members of people killed in Boeing plane crashes. The judge in the case, U.S. District Judge Reed C. O’Connor, has a hearing scheduled for Sept. 3 at 8:30 a.m. in Fort Worth, Texas.
O’Connor also is to consider a motion from Cassell and other victims’ counsel that says only the appointment of a special prosecutor “can restore the integrity of these proceedings and ensure that justice and time-tested canons of constitutional separation of power guide the resolution of this matter.”
Will the 9th Circuit appoint a special prosecutor?
Cassell said Wilson need not consider whether to appoint a special prosecutor in In Kirk’s case because “the Government itself has already obtained a conviction.”
The 9th Circuit, however, could appoint special counsel to defend Kirk’s conviction because the DOJ won’t, which Cassell said “appears” to be the appellate court’s “normal practice.” He cited the court’s appointment of a special prosecutor to defend former Maricopa County, Arizona, Sheriff Joseph Arpaio’s conviction for misdemeanor contempt of court after President Trump pardoned him in 2017 and Arpaio asked the 9th Circuit to vacate his judgment.
“Notably, as in Arpaio, the Government’s pending motion to dismiss seeks not only dismissal of the indictment against Defendant but also vacating the judgment,” Cassell and Harper wrote. “Accordingly, this Court should simply await a clarifying ruling from the Circuit on the Defendant’s appeal before speculating on how issues on remand might shake out.”
Cassell and Harper also said Judge Wilson no longer has jurisdiction over the case because “more than eight weeks ago, the Defendant filed a notice of appeal and took his efforts to overturn his conviction to the Ninth Circuit.”
“Whether the Government can now dismiss this case must be addressed by the Ninth Circuit,” they wrote.
Keenan acknowledged the possible jurisdictional issue by asking Wilson to, “in the alternative” of dismissal, issue an indicative ruling stating he “would grant the motion to dismiss if the Ninth Circuit remands the case for that purpose.”
Cassell and Harper said Wilson “should deny the request for an indicative ruling, because the Government has failed to make a ‘timely motion’ for relief, as required” by Rule 37 of the Federal Rules of Criminal Procedure. They also said Wilson “is not permitted to give speculative advice on how things might unfold” and if he choses to do so, he should indicate he’d reject dismissal.
“The Government’s purported reasons for the dismissal are after-the-fact, pretextual, and unpersuasive,” according to the filing.
“At bottom, the Government relies only on the fact that it is not inclined to defend the conviction on appeal. But it would be clearly contrary to the manifest public interest for the Court to dismiss this case on such flimsy grounds. Indeed, it appears that the Government’s true basis for the dismissal motion is that it objects to the Court’s prison sentence. The Court should not allow the Government to subvert a duly imposed sentence for a serious crime.”
When dismissing the felony against Kirk, Judge Wilson cited a 7th Circuit U.S. Court of Appeals case and quoted a 2000 9th Circuit case that said, “it is not clear that there are any circumstances in which the dismissal would be contrary to the public interest.”
Cassell and Harper, however, said the 7th Circuit “is not controlling here” and its “skepticism about district court power is unpersuasive.”
The Circuit “appears to admit that its interpretation of Rule 48(a) renders the provision essentially meaningless. If a rule providing for judicial review of a motion cannot be judicially enforced, then the rule has no purpose,” Cassell wrote. “This outcome is contrary to the well-settled principle that a legal rule should not be interpreted in a ways that make the rule ineffective.”
Cassell said the 7th Circuit’s ruling also “is inconsistent” with the U.S. Supreme Court’s 1977 finding in Rinaldi v. United States, which held that a trial judge abused discretion by denying a Rule 48 motion brought after a jury trial and while the case was on appeal but also held that judges can reject Rule 48 dismissal motions if dismissal contradicts the public interest.
Wilson cited Rinaldi in his earlier dismissal order but also cited the 9th and 7th Circuit decisions when questioning whether any circumstance contradicts the public interest.
Cassell and Harper said Wilson should reject dismissal because of the DOJ’s “failure to justify” the request, but he also can reject it based on the facts of the case, which they said “cry out for justice.”
Houeston is “a senior citizen” who “committed no crime,” “had no weapon,” “did not try to flee” and “did not try to resist.”
“But, because of Defendant’s excessive force—while acting under color of law as an employee of the Los Angeles County Sheriff’s Department—she sustained a black eye, a fractured bone in her right arm, multiple bruises, scratches, and significant chemical burning from the pepper-spray. Defendant sprayed her at close range, as she screamed in pain and struggled to fill her lungs with oxygen. And afterward, rather than admitting his crime, Defendant tried to cover up his actions by initiating bogus charges against J.H. for felony obstructing an officer.”
Cassell and Harper also filed a motion to intervene in Kirk’s 9th Circuit appeal that asks for them to be appointed “amicus curiae in defense of the judgment.”
“J.H.’s counsel have diverse backgrounds and considerable experience in this legal area, so the Court would be assured of a vigorous defense of the judgment below if the Court were to appoint them,” according to the 16-page motion.
Does ‘prosecutorial discretion’ justify dismissal?
Judge Wilson didn’t hear argument from Cassell or Harper on Monday, but he questioned Keenan about issues raised in their brief, including whether he has jurisdiction to dismiss because “you’re teeing up exactly what the 9th Circuit would consider.”
“Do you see any distinction between the discretion you have to dismiss the case or vacate the judgment on Rule 48 before judgment and after judgment?” Wilson asked.
Keenan said they don’t.
“The only distinction that matters when it comes to the judgment is once it becomes final, and it’s not final until the appellate review is done,” Keenan said.
Wilson also asked Keenan if he believes Kirk used excessive force with Houseton, and Keenan said, “It is the government's conclusion that the the evidence is insufficient to support the verdict.”
He said he wasn’t suggesting “bad faith” by “my former colleagues” and “I think reasonable minds can differ on issues involving cases like this.”
“I’m not casting aspersions on my former colleagues on this case, in no way, shape or form,” Keenan said.
“You’re not suggesting they acted in bad faith, but you’re saying they made a mistake?” Judge Wilson replied.
“In our view, it’s an issue about the exercise of discretion. Are we comfortable with it? The answer is no. That’s the answer,” Keenan said.
Keenan said Cassell’s and Harper’s brief fails to recognize that “there’s a case or controversy requirement in criminal cases” and if prosecutors want to dismiss, “there is no case.”
“Even if the victim really wants it to continue, there is no jurisdiction at that point,” Keenan said
As he did in previous filings, Keenan discussed Houseton’s “acts of resistance” and said “I don’t think we acknowledged that fully at trial.”
“I think we, in fact, at some point, we portrayed J.H.’s conduct as an effort at deescalation,” Keenan said.
“We had video evidence that J.H. did resist Deputy Kirk when he first approached her, and she continued to resist,” Keenan continued. “Once that happens, it creates some justification how much on the use of force in terms of securing the suspect.”
Wilson said jurors saw the video themselves, but Keenan disputed how prosecutors characterized Houseton’s actions and Kirk’s commands, including dismissing his statement to Houseton to get on the ground when she was on the ground and trying to get up.
Maybe “a team of editors” could have told Kirk to say “stay on the ground” instead of “get,” Keenan said, but “it’s clear he meant stay on the ground.”
“He’s pushing her back to the ground because she’s trying to get up. So he wants her on the ground. That’s what he’s communicating,” Keenan said.
Wilson said Keenan’s real reason for seeking dismissal “is you think the defendant should have gotten the probationary sentence.”
Keenan said, “I don’t think that’s a fair read.”
Wilson asked if he believes Kirk’s conviction “was a miscarriage of justice.”
“I now those terms have legal significance, and I’m not trying to dodge it,” Keenan said. “We are relying on our discretion. Prosecutorial discretion.”
Wilson ended the hearing and said he’d take the motion under submission.
AUSA takes similar stance in Breonna Taylor case
Keenan is a longtime assistant U.S. attorney in the Santa Ana office who currently is working as senior counsel in the DOJ’s Civil Rights Division in Washington, D.C.
He recently wrote a sentencing memorandum for a police officer in Louisville, Kentucky, convicted of a civil rights crime for firing 10 shots during a raid that killed Breeona Taylor in March 2020. The memo called for Brett Hankison to be sentenced to only one day in jail and emphasized the 10 shots he fired didn’t injure anyone and occurred after a shot was fired from inside Taylor’s apartment.
Keenan said he reviewed many cases involving deprivation of rights under color of law charges and “is unaware of another prosecution in which a police officer has been charged with depriving the rights of another person under the Fourth Amendment for returning fire and not injuring anyone.”
The DOJ “respects the jury’s guilty verdict as the unanimous judgment of a group of Defendant Hankison’s peers that he is guilty beyond a reasonable doubt of every element of the crime of conviction,” Keenan wrote. “But for a jury verdict in this case the government might proceed differently.”
However, like he did in Kirk’s case, Keenan argued the U.S. Sentencing Guidelines were too harsh and that the judge should apply a “downward departure” to reduce Hankison’s sentence to a day in custody with credit for a day he’s already served.
“Here, Defendant Hankison knew that he and his fellow officers had just been fired upon, and one of them had been hit. Although his response in these fraught circumstances was unreasonable given the benefit of hindsight, that unreasonable response did not kill or wound Breonna Taylor, her boyfriend, her neighbors, defendant’s fellow officers, or anyone else,” Keenan wrote.
U.S. District Judge Rebecca Grady Jennings sentenced Hankison to 33 months in prison.
Thank you for reading Legal Affairs and Trials with Meghann Cuniff. I plan to continue following these cases and other important issued in Los Angeles federal courts such as the ongoing litigation over immigration-related raids. Please consider becoming a paid subscriber so I can continue doing this work.
Court documents:
United States v. Wiederhorn:
July 29 dismissal motion in Judge Hsu’s case
July 29 dismissal motion in Judge Klausner’s case
Aug. 1 Judge Hsu’s dismissal order
Aug. 1 Judge Klausner’s order to show cause
Aug. 5 USA response
Aug. 7 Klausner’s dismissal order
United States v. Kirk:
Aug. 5 motion to intervene in 9th Circuit appeal
Aug. 3 opposition supplement
Aug. 1 prosecutors’ supplement
July 30 victim’s opposition to dismissal with photo of victim
July 29 prosecutors’ motion to dismiss
June 5 9th Circuit order
May 27 Judge Wilson’s order
United States v. Boeing
May 29 dismissal motion
June 18 motion for special prosecutor
Previous articles:
June 5 9th Circuit says victim in civil rights case has no right to challenge dismissal of felony
May 20 Judge cites 'public interest' in argument over 'post-trial' civil rights plea agreement
May 2 New U.S. attorney in LA moves to strike jury's felony civil rights verdict against cop
Thank you again for supporting my independent legal affairs journalism. Your paid subscriptions make my work possible. If you’re not already a paid subscriber, please consider purchasing a subscription through Substack. You also can support me through my merchandise store and by watching my YouTube channel. Also, follow me on Facebook and Instagram as I grow my Meta presence. Thank you!