11/15/24: Case on propensity evidence under Federal Rule of Evidence 413

In United States v. Porter, --- F.4th ---, No. 22-10286 (9th Cir. 2024), the Court affirmed Charles Porter’s conviction for various sexual assault offenses in Yosemite National Park in a case in which the panel addressed whether Federal Rule of Evidence 413, which allows propensity evidence in federal criminal sexual assault cases, violates the Fifth Amendment Due Process Clause.

Rule 413 provides that “[i]n a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault.”

Under Federal Rule of Evidence 413, “[i]n a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault.” We are asked to decide whether this rule allowing propensity evidence in federal criminal sexual assault cases violates the Fifth Amendment’s Due Process Clause. Consistent with our precedent and that of other circuits, we hold that Rule 413 is constitutional.

We reaffirm Lemay and join the other circuits in holding that Rule 413 does not violate due process. When district courts retain discretion to exclude unduly prejudicial propensity evidence under Rule 403, Rule 413 is constitutional

11/13/24: Important Fourth Amendment decision

In United States v. Holmes, --- F.4th ---, No. 22-10266 (9th Cir. 2024), a divided Court reversed the district court’s denial of Aaron Holmes’s motion to suppress statements he made to law enforcement and images found on his cellphone, and remanded for further proceedings, in a case concerning a child-pornography investigation of two CyberTipline Reports that the National Center for Missing and Exploited Children forwarded to the Federal Bureau of Investigation.  

The majority's discussion of the good-faith and inevitable-discovery exceptions to the warrant requirement are very helpful.   

In this case, the Government concedes that Agent Steele’s viewing of the Facebook images was a search that triggered the warrant requirement. However, the Government argues on appeal, as it did before the district court, that Agent Steele did not violate the Fourth Amendment because two exceptions to the warrant requirement apply: officer good faith and inevitable discovery.

When law enforcement asserts that it acted in good faith by relying on then-existing law, it must point to “binding appellate precedent” that authorizes the challenged conduct at issue. Id. at 241. The good-faith exception does not require that the existing precedent involve a factual match to the present circumstances, but it does require that the precedent “specifically authorize[]” the conduct at issue.  As we explained in Lara, the good-faith exception applies “only when ‘binding appellate precedent’ expressly instruct[s] the officer what to do.” 815 F.3d at 613. Good faith is not established where existing precedent is unclear or makes the government’s position only “plausibly . . . permissible.” Cano, 934 F.3d at 1021 (quoting Lara, 815 F.3d at 614).

Because the binding appellate precedent that existed when Agent Steele conducted her investigation was contradictory and only plausibly supported her warrantless viewing of the images received from Facebook, we conclude that the good-faith exception does not apply. When it is ambiguous where an officer’s conduct falls on the continuum of what is lawful and what is not, our precedent requires that law enforcement comply with the warrant requirement.

The good-faith exception does not apply here because the existing precedent discussing the private-search doctrine did not specifically authorize Agent Steele to view the Facebook images without a warrant. Rather, the legal landscape only made plausible the contention that Agent Steele’s search fell within the scope of the private-search doctrine.

As far as we can tell, under our rule that binding appellate precedent must “specifically authorize” law enforcement’s conduct, we have not applied the good-faith exception where there are contrasting, potentially dispositive precedents. Instead, we have taken a narrow view of when precedent specifically authorizes an action.  

The Government also argues that the inevitable discovery exception applies. The inevitable-discovery exception excuses warrantless searches where the government proves “by a preponderance of the evidence” that unlawfully obtained evidence “would have been discovered inevitably [through] lawful means.”

Inevitability is the key. There can be “no speculative elements” in showing that law enforcement would have obtained the evidence lawfully absent its unlawful actions. Lang, 149 F.3d at 1047 (quoting Nix v. Williams, 467 U.S. 431, 444 n.5 (1984)). Rather, this inquiry must “focus[] on demonstrated historical facts capable of ready verification or impeachment.” Nix, 467 U.S. at 444 n.5. We have also explained that “the fact or likelihood that makes the discovery inevitable [must] arise from circumstances other than those disclosed by the illegal search itself.” United States v. Boatwright, 822 F.2d 862, 864 (9th Cir. 1987). 

Where the hypothetical next steps of an investigation are more discretionary and less procedural, inevitability may be lacking. See United States v. Ramirez-Sandoval, 872 F.2d 1392, 1400 (9th Cir. 1989). This is logical—the more leeway for decision-making, the harder it is to conclude, without speculation, that law enforcement inevitably would reach the same outcome.

The timing of an asserted hypothetical lawful discovery may inform inevitability. The case law demonstrates that shorter periods between the unlawful conduct and the asserted lawful discovery that would have occurred typically increases the likelihood of inevitability. 

The next step in the inevitability analysis is even more fatal for the Government. Even if we accept that Agent Rose inevitably would have obtained a search warrant for Holmes’s residence, the Government must also show that the evidence unlawfully obtained by Agent Steele inevitably would have been found by Agent Rose. The Government failed to make this showing because there are no historical facts to prove with any certainty that this would have happened.

The Government must prove that discovery of the evidence by lawful means was inevitable by a preponderance of the evidence. Nix, 467 U.S. at 444. This burden is not met when the Government relies on unsupported assumptions to fill in the gaps of an undeveloped record.

11/5/24: Case on prescribing outside the usual course of professional medical practice and without a legitimate medical purpose.

In United States v. Pham, --- F.4th ---, No. 23-1175 (9th Cir. 2024), the Court affirmed the district court’s denial of  Pham’s motion to withdraw his guilty plea to conspiracy to distribute controlled substances in violation of the Controlled Substances Act.

The defendant sought to withdraw his plea on the ground that it was not knowing and voluntary, citing Ruan v. United States, 597 U.S. 450 (2022).  In Ruan, the Supreme Court held that the government must prove not only that a defendant issued prescriptions that were not in fact authorized under the CSA but also that the defendant wrote the prescriptions with the knowledge or intent that he was doing so without authorization. Under Ruan, after a defendant produces evidence that he or she was authorized to dispense controlled substances, the Government must prove beyond a reasonable doubt that the defendant knew that he or she was acting in an unauthorized manner, or intended to do so.

The Court held that in both the plea agreement and colloquy with the district judge, Pham admitted to having the requisite knowledge of the elements that made his prescriptions not authorized. "In both the plea agreement and the colloquy, Pham admitted to knowingly and intentionally committing acts that were not authorized by the CSA. Pham has failed to show that his guilty plea was unknowing or involuntary. The district court did not err in denying his motion to withdraw the plea."

10/29/24: Important civil forfeiture case

In United States v. Nasri, --- F.4th ---, No. 22-55685 (9th Cir. 2024), the Court majority held that the district court’s exercise of in rem jurisdiction violated due process and vacated the district court’s order granting the government’s motion to strike Nasri’s claim of innocent ownership over the assets. 

This case arises out of the Phantom Secure prosecutions.  The government brought a civil forfeiture action under 28 USC 1355 to recover alleged ill-gotten gains in a foreign bank account from fugitive Younes Nasri. 

Nasri, a Canadian citizen residing in Dubai, challenged the court’s jurisdiction over the assets because allegedly neither he nor the assets had ties to the United States.

The Court held that, as a matter of basic due process, a court must have control or constructive control over the property in a forfeiture action in order to establish in rem jurisdiction over the property.  

We hold that due process requires a district court to establish control or constructive control over property in a forfeiture action to exercise in rem jurisdiction over the property. 

The Court further concluded that the district court's purported exercise of in rem jurisdiction over property located abroad, over which it apparently had no connection, possession, or control, was contrary to fundamental principles of due process.  The Court thus remanded for the district court to assess in the first instance whether the court has control or constructive control over the assets to satisfy due process when asserting in rem jurisdiction.

10/28/24: Case on U.S.S.G. § 2G2.2(b)(6), (b)(7)

In United States v. Sharma, --- F.4th ---, No. 23-616 (9th Cir. 2024), the Court affirmed the defendant's sentence over his facial due-process challenge to Congressionally directed Sentencing Guidelines enhancements for (1) using a computer to commit a child pornography offense, U.S.S.G. § 2G2.2(b)(6); and (2) the number of images involved in the offense, U.S.S.G. § 2G2.2(b)(7).

The Court held that the defendant did not establish that Congress acted irrationally when it directed the enhancements, nor did he establish that changed circumstances have so drastically altered the application of the enhancements to make them irrational today.

Although the computer-usage and image-number sentencing enhancements in child pornography offenses may be debatable on policy grounds, those debates are not the concern of a court conducting rational basis review. We ask only if a defendant has established that the enhancements lack a rational relationship to a legitimate government interest. We hold that Sharma fails to do so here.  

The Court, however, left open the possibility of a future substantive reasonableness challenge based on the application of these enhancements. 

10/25/24: Case on USSG 2M5.1 related to evasion of export controls.

In United States v. Shih, --- F.4th ---, No. 23-3718 (9th Cir. 2024), the Court affirmed a sentence in a case which the district court applied a base offense level of 26 pursuant to U.S.S.G. § 2M5.1(a)(1) to a count on which a jury found Yi-Chi Shih guilty of violating the International Emergency Economic Powers Act (IEEPA).

Shih violated the IEEPA by exporting to China, without a license, monolithic microwave integrated circuits, devices that amplify microwave signals. The offense arose out of Shih’s collaboration with engineers in China in conducting research for a Chinese enterprise that develops military weapons. 

The base offense level of 26 prescribed in § 2M5.1(a)(1) applies if national security controls were evaded.

The Court rejected Shih's argument that the relevant export controls were foreign policy controls, not national security control. 

10/22/24: Split decision on U.S.S.G. § 2X1.1(b)(2)

In United States v. Lee, --- F.4th ---, No. 23-1495 (9th Cir. 2024), the majority affirmed the sentence imposed on Hoang Ai Le, whom a jury convicted of Hobbs Act conspiracy and a related firearm offense, in a case in which Le and a team of co-conspirators decided to steal computer chips from Diamond Flower Electric Instruments (“DFI”).

The issue on appeal was whether Le should have received a reduction under U.S.S.G. § 2X1.1(b)(2).  The majority said no. 

The provision reads: 

If a conspiracy, decrease by 3 levels, unless [1] the defendant or a co-conspirator completed all the acts the conspirators believed necessary on their part for the successful completion of the substantive offense or [2] the circumstances demonstrate that the conspirators were about to complete all such acts but for apprehension or interruption by some similar event beyond their control.

Here is the majority's reasoning: 

The district court found that the co-conspirators had “entered the victim’s residence, tied up the victim and his parents, and tortured and interrogated the victim in furtherance of the planned DFI robbery.” Because the conspirators had gone to such lengths, and because Le and his team were waiting at the nearby motel and ready to head to DFI with the codes, the conspirators were “about to complete” the Hobbs Act robbery under § 2X1.1(b)(2), which meant the three-level reduction should not apply.

While the Guidelines supply no definition of the point at which conspirators are “about to complete” an offense, the district court’s conclusion cannot be described as clearly erroneous. The home invasion, torture, and interrogation of the person who supposedly knew the DFI alarm codes were the most significant tasks that Le and his co-conspirators needed to complete. Through these vicious actions, the conspirators completed that aspect of the Hobbs Act violation requiring robbery of a person. See 18 U.S.C. § 1951(a), (b)(1). The remaining steps consisted of driving a short distance to the DFI warehouse, punching in the alarm codes, and removing the computer chips. Had the conspirators successfully secured the codes to the building, the remaining steps would have been straightforward: entering a nearby building to which they had the alarm codes.

Something else always could have gone wrong along the way. But that possibility does not detract from what the conspirators had already done. See United States v. Medina, 74 F.3d 413, 418 (2d Cir. 1996) (per curiam) (explaining that § 2X1.1(b)(2) differentiates punishment “based on the conduct of the defendant, not on the probability that a conspiracy would have achieved success”). Someone who is “about to” do something is going to do it relatively soon. See, e.g., About, Merriam-Webster Dictionary 2 (2019); About, New Oxford American Dictionary 5 (2010). But whether someone is “about to” do something depends on the facts and context. It was not clearly erroneous for the district court to conclude that, when the conspirators had selected the target business, brutalized the person they suspected of being the owner, and stationed a ready team near the DFI warehouse, the conspirators were about to complete the Hobbs Act robbery with the codes once obtained.

Judge Berzon's dissent explains why the majority got it wrong.