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.  

10/11/24: An “oily bilge water” case

In United States v. Korotkiy, --- F.4th ---, No. 23-2443 (9th Cir. 2024), a split decision, the majority affirmed the district court’s order denying Denys Korotkiy’s motion to dismiss a count charging him under 33 U.S.C. § 1908 with violating 33 C.F.R. § 151.25 (2023), a regulation that requires shipmasters to, among other things, maintain a record of certain bilge-water operations while in U.S. waters.

The opinion is long. The basic question is whether "maintain" means maintain accurately or just maintain as in keep in good condition.   The majority went with the first definition.  Here is the introduction and conclusion: 

Under international and federal law, it is unlawful to dump the polluted water that collects in a boat’s bottom— otherwise known as “oily bilge water”—while at sea. Those same laws also require ships to log their bilge-water operations in an Oil Record Book. Defendant and Chief Engineer Denys Korotkiy, along with the crew aboard the foreign-flagged ship MV Donald, flouted those laws by dumping oily bilge water on the high seas and covering it up with misleading entries in the ship’s Oil Record Book. After making port in the United States and presenting the Oil Record Book to U.S. officials, Korotkiy faced prosecution under federal law, including 33 C.F.R. § 151.25 (2023). That regulation requires shipmasters to, among other things, “maintain” a record of certain bilge-water operations in an Oil Record Book while in U.S. waters. And the MV Donald’s record was—to put it simply—inaccurate. Korotkiy moved to dismiss his indictment, arguing that “maintain” does not mean “maintain accurately” and that § 151.25 neither applied to him nor proscribed his conduct. 

The district court was unpersuaded. It applied out-of-circuit case law to find that Korotkiy could be charged for causing the failure to maintain an accurate record of bilgewater operations in an Oil Record Book at port under § 151.25. On appeal, Korotkiy urges us to reverse the district court’s order because: (1) § 151.25 does not require crewmembers to maintain substantively “accurate” records in Oil Record Books; (2) neither Congress nor the international community intended for such prosecutions to occur; and (3) only ship masters, and not chief engineers, should be charged for violations of § 151.25. Although this is a matter of first impression in the Ninth Circuit, we join the First, Second, Third, and Fifth Circuits. We hold that the regulation’s plain language proscribes Korotkiy’s conduct and affirm the district court’s decision.

In sum, the Ionia, Jho, Vastardis, and Hornof courts have all considered and rejected arguments resembling Korotkiy’s, uniformly holding that 33 C.F.R. § 151.25 imposes a duty upon foreign-flagged vessels to maintain accurate (or at least not knowingly inaccurate) Oil Record Books while in U.S. territorial waters. Korotkiy does not offer a “compelling reason” to chart a separate course and “create a circuit split.” Given § 151.25’s plain language and the law’s purpose, we decline his invitation to do so and affirm the district court’s order.

10/8/24: Interesting categorical analysis case in the VICAR murder context

In United States v. Elmore, --- F.4th ---, No. 22-16539 (9th Cir. 2024), the Court reversed the district court’s denial of Reginald Elmore’s 28 U.S.C. § 2255 motion challenging the validity of his conviction for use or possession of a firearm during murder in aid of racketeering in violation of 18 U.S.C. § 924(j)(1), and remanded for further proceedings.

Unless you are a categorical-analysis expert, this decision can be tricky.  Here is some of the key language:

Reginald Elmore challenges the validity of his 2019 conviction for use or possession of a firearm during murder in aid of racketeering in violation of 18 U.S.C. § 924(j)(1). To be valid, Elmore’s § 924(j)(1) conviction requires a predicate “crime of violence,” meaning an offense that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 924(c)(3)(A). The predicate offense for Elmore’s § 924(j)(1) conviction—VICAR murder in violation of 18 U.S.C. § 1959(a)(1)1—itself requires a predicate violation of state or federal law. 

We hold that the modified categorical approach must be applied to determine the elements of Elmore’s charged VICAR offense. We conclude that Elmore was charged with VICAR murder in aid of racketeering predicated on murder under California law. Because we are persuaded that determining whether this charged offense “has as an element the . . . use of physical force” against another person requires considering whether California murder necessarily involves the requisite force, we reverse and remand to the district court for further proceedings. 

Elmore’s 924(j)(1) conviction requires a valid predicate “crime of violence.” Section 924(c)(3) defines a crime of violence as a felony offense that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another,” or one “that[,] by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” 18 U.S.C. § 924(c)(3)(A)–(B). When Elmore entered his guilty plea, both the first clause of this definition—the “elements” or “force” clause—and the second—the “residual” clause—were in effect. Shortly after his guilty plea, the Supreme Court invalidated the residual clause of § 924(c)(3) for vagueness. Davis, 588 U.S. at 470. Thus, to constitute a predicate crime of violence sufficient to support Elmore’s § 924(j)(1) conviction, the dismissed VICAR charges must satisfy § 924(c)(3)(A), the elements clause of § 924(c)(3).

In Elmore’s case, we must determine whether the elements of the predicate charged VICAR offenses necessarily involve the “use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 924(c)(3)(A). “Unless the least culpable act criminalized [by the statute] entails that force, the statute is not a categorical match with the elements clause, and it does not qualify as a crime of violence.” Begay, 33 F.4th at 1091.

We [] agree with our sister circuits that “the modified categorical approach applies to substantive VICAR offenses, and that ‘a substantive VICAR offense is a crime of violence [under § 924(c)(3)(A)] when predicated on at least one violent crime in aid of racketeering acts.’”

Applying the modified categorical approach, we conclude that Elmore was charged with VICAR murder in aid of racketeering under 18 U.S.C. § 1959(a)(1) predicated on murder in violation of California law.

To find a principal guilty of this substantive crime, a jury would have to find that the defendant committed California murder for the purpose of promoting their position within, or receiving something of value from, a qualifying racketeering enterprise.

We have never addressed how courts should analyze VICAR offenses for this purpose. Elmore argues that, when applying the modified categorical approach to determine whether the charged VICAR offense satisfies the elements clause, courts should look through to the elements of the charged VICAR murder predicate (here, California murder). The government argues that every charged VICAR murder necessarily has generic federal murder as an element, so courts need not look to the charged predicate at all. In the context of this case, Elmore has the better argument. 

Although we have recognized that, in limited circumstances, the federal generic definition of the offense may be substituted for the state-law definition, see Adkins, 883 F.3d at 1210–11, we have never addressed whether generic murder is an independent element of VICAR murder, such that it should be charged or instructed. And we need not consider that question today. We hold only that where, as here, application of the modified categorical approach reveals that the predicate state-law violation supplied the definition of murder for the VICAR offense, courts should look through to the elements of that predicate violation to determine whether the VICAR offense, as charged or convicted, constitutes a crime of violence under § 924(c)(3)(A).  

Where, as here, there is no evidence that a generic offense was an element of the charged VICAR offense, courts should look through to elements of the charged state-law predicate violation to determine whether the VICAR offense satisfies § 924(c)(3)(A), the elements clause of § 924(c)(3).

Here, such analysis requires determining whether California murder “has as an element the use, attempted use, or threatened use of physical force against the person or property of another,” § 924(c)(3)(A), such that Elmore’s charged VICAR murder offenses are a valid predicate for his § 924(j)(1) conviction.

Because the district court did not consider whether California murder is a crime of violence and declined to address the government’s procedural arguments, we reverse and remand for further proceedings consistent with this opinion.