5/9/24: Major felon-in-possession decision

In United States v. Duarte, --- F.4th ---, No. 22-50048 (9th Cir. 2024), a divided panel vacated on Second Amendment grounds Steven Duarte’s conviction for violating 18 U.S.C. § 922(g)(1), which makes it a crime for any person to possess a firearm if he has been convicted of an offense punishable by imprisonment for a term exceeding one year. 

Here is the majority's intro:

18 U.S.C. § 922(g)(1) makes it a crime for any person to possess a firearm if he has been convicted of an offense “punishable by imprisonment for a term exceeding one year.” Steven Duarte, who has five prior non-violent state criminal convictions—all punishable for more than a year— was charged and convicted under § 922(g)(1) after police saw him toss a handgun out of the window of a moving car. Duarte now challenges the constitutionality of his conviction. He argues that, under the Supreme Court’s recent decision in New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), § 922(g)(1) violates the Second Amendment as applied to him, a non-violent offender who has served his time in prison and reentered society. We agree. 

We reject the Government’s position that our pre-Bruen decision in United States v. Vongxay, 594 F.3d 1111 (9th Cir. 2010), forecloses Duarte’s Second Amendment challenge. Vongxay is clearly irreconcilable with Bruen and therefore no longer controls because Vongxay held that § 922(g)(1) comported with the Second Amendment without applying the mode of analysis that Bruen later established and now requires courts to perform. Bruen instructs us to assess all Second Amendment challenges through the dual lenses of text and history. If the Second Amendment’s plain text protects the person, his arm, and his proposed course of conduct, it then becomes the Government’s burden to prove that the challenged law is consistent with this Nation’s historical tradition of firearm regulation. Vongxay did not apply these two analytical steps because Bruen had not yet established them. We must therefore reconsider § 922(g)(1)’s constitutionality, this time applying Bruen’s two-step, text-and-history framework. 

At step one of Bruen, we easily conclude that Duarte’s weapon, a handgun, is an “arm” within the meaning of the Second Amendment’s text and that Duarte’s “proposed course of conduct—carrying [a] handgun[] publicly for selfdefense”— falls within the Second Amendment’s plain language, two points the Government never disputes. Bruen, 597 U.S. at 32. The Government argues only that “the people” in the Second Amendment excludes felons like Duarte because they are not members of the “virtuous” citizenry. We do not share that view. Bruen and Heller foreclose that argument because both recognized the “strong presumption” that the text of the Second Amendment confers an individual right to keep and bear arms that belongs to “all Americans,” not an “unspecified subset.” Bruen, 597 U.S. at 70 (quoting District of Columbia v. Heller, 554 U.S. 570, 581 (2008)). Our own analysis of the Second Amendment’s publicly understood meaning also confirms that the right to keep and bear arms was every citizen’s fundamental right. Because Duarte is an American citizen, he is “part of ‘the people’ whom the Second Amendment protects.” Bruen, 597 U.S. at 32. 

At Bruen’s second step, we conclude that the Government has failed to prove that § 922(g)(1)’s categorical prohibition, as applied to Duarte, “is part of the historical tradition that delimits the outer bounds of the” Second Amendment right. Bruen, 597 U.S. at 19. The Government put forward no “well-established and representative historical analogue” that “impose[d] a comparable burden on the right of armed self-defense” that was “comparably justified” as compared to § 922(g)(1)’s sweeping, no-exception, lifelong ban. Id. at 29, 30. We therefore vacate Duarte’s conviction and reverse the district court’s judgment entering the same.

5/2/24: Two en banc decisions

First, in United States v. Lucas, --- F.4th ---, No. 22-50064 (9th Cir. 2024), the en banc Court held that clear and convincing evidence is not required for factual findings under the advisory Sentencing Guidelines, even when potentially large enhancements are at stake; fact-finding by a preponderance of the evidence is sufficient to satisfy due process at sentencing.

The writing has been on the wall for this one.  It seemed clear the Ninth Circuit would overrule its prior precedent holding that trial courts must apply a clear-and-convincing evidence standard  “when a sentencing factor has an extremely disproportionate effect on the sentence relative to the conviction.”  With this en banc decision, the Ninth joins the other Circuits in holding that the preponderance standard applies to all sentencing factors. 

Next, in United States v. Anderson, --- F.4th ---, No. 20-50345 (9th Cir. 2024), the en banc Court reversed the district court’s denial of a motion to suppress a firearm found during a warrantless search of the defendant’s truck in a case that presented the question whether an officer’s failure to comply with governing administrative procedures is relevant in assessing the officer’s motivation for conducting an inventory search.  Here are some key parts of the majority opinion. 

Law enforcement may conduct warrantless inventory searches of impounded vehicles. But the Supreme Court has instructed that inventory searches are reasonable under the Fourth Amendment only if they are motivated by administrative purposes, and not solely by investigatory purposes. The question here is whether an officer’s failure to comply with governing administrative procedures is relevant in assessing the officer’s motivation for conducting an inventory search. The answer is yes. An officer’s compliance (or as is the case here, non-compliance) with department policy governing inventory searches is part of the totality of circumstances properly considered in determining whether a search satisfies the requirements of the inventory-search exception to the warrant requirement. And based on the circumstances presented here, we conclude that the deputies who searched Defendant Jonathan Anderson’s truck acted solely for investigatory reasons. Therefore, we reverse the district court’s denial of his motion to suppress.

The Fourth Amendment, not policies governing administrative searches, defines the constitutional right against unreasonable searches and seizures. But given the nature of the inventory-search exception to the warrant requirement, law enforcement’s compliance with the governing inventory procedure or policy can be material. To satisfy the Fourth Amendment, an inventory search must serve administrative, not solely investigatory, goals. Bertine, 479 U.S. at 371–72. And whether law enforcement officers have complied with their governing inventory procedure can inform their motivations for conducting an inventory search. See Opperman, 428 U.S. at 376 (“[I]n following standard police procedures, . . . the conduct of the police was not ‘unreasonable’ under the Fourth Amendment.”); Garay, 938 F.3d at 1111 (“If [an inventory search is] done according to standardized criteria and not in ‘bad faith or for the sole purpose of investigation,’ police inventory procedures satisfy the Fourth Amendment.” (quoting Bertine, 479 U.S. at 372)). Accordingly, deviation from the governing inventory policy can evidence bad faith or that officers were acting solely for investigative purposes. 

The dissent laments that Anderson “goes free” as a result of our decision. Dissent at 38. But, of course, one does not lose his Fourth Amendment rights upon being convicted of a felony—or even multiple felonies. And we do not enforce the Fourth Amendment based on whether an underlying conviction will be invalidated. See Riley, 573 U.S. at 401 (“We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime. . . . Privacy comes at a cost.”). 

4/19/24: forfeiture by wrongdoing rule

In United States v. Blackshire, --- F.4th ---, No. 21-10230 (9th Cir. 2024), the Court affirmed Lawrence Blackshire’s convictions and sentence for various offenses arising out of an assault on his girlfriend, C.S.

Lawrence Blackshire was convicted of various offenses arising out of an assault on his girlfriend, C.S. After the government could not locate C.S. to testify at trial, the district court admitted statements she gave to police officers and a nurse. The central issue on appeal is whether the district court erred in finding that Blackshire forfeited his right to confront C.S. by causing her unavailability. We hold that it did not, and—finding Blackshire’s remaining arguments unpersuasive—affirm his convictions. 

The “Confrontation Clause” bars testimonial hearsay by an unavailable declarant2 unless “the defendant has had a prior opportunity to cross-examine” the declarant. Crawford v. Washington, 541 U.S. 36, 59 (2004). However, “[a] defendant may forfeit confrontation rights and render hearsay rules inapplicable if the defendant is responsible for the witness’s unavailability.” United States v. Johnson, 767 F.3d 815, 820 (9th Cir. 2014). This “forfeiture by wrongdoing” rule “permit[s] the introduction of statements of a witness who was ‘detained’ or ‘kept away’ by the ‘means or procurement’ of the defendant.”

Federal Rule of Evidence 804(b)(6) “codifies” the forfeiture by wrongdoing doctrine. Davis v. Washington, 547 U.S. 813, 833 (2006). The Rule allows introduction of hearsay when a party “wrongfully caused—or acquiesced in wrongfully causing—the declarant’s unavailability as a witness, and did so intending that result.”

“Supreme Court authority . . . clearly establishes that the forfeiture-by-wrongdoing doctrine applies where there has been affirmative action on the part of the defendant that produces the desired result, non-appearance by a prospective witness against him in a criminal case.” Carlson, 791 F.3d at 1010. To establish forfeiture by wrongdoing, the government must demonstrate that the defendant intentionally “engaged in conduct designed to prevent a witness from testifying.” Giles, 554 U.S. at 361. “Causing the declarant’s unavailability with the intent of doing so is critical to the doctrine of forfeiture by wrongdoing.”

Wrongful action is a separate requirement from causation and intent in the Rule, as well as in the traditional hearsay exception. But the government need not show that Blackshire engaged in criminal wrongdoing that caused C.S.’s unavailability. See Fed. R. Evid. 804(b)(6) Advisory Committee Note to Amendment (1997). Instead, the doctrine acknowledges the principle that, “[w]hile defendants have no duty to assist the State in proving their guilt, they do have the duty to refrain from acting in ways that destroy the integrity of the criminal trial system.” 

With respect to whether Blackshire caused C.S.’s absence, there is sufficient evidence to support the district court’s finding. In one recorded conversation, Blackshire told someone that law enforcement would not be able to find “victims” because “we already discussed the whole fucking not showing up to court thing.” And, he was recorded asking two other women to tell C.S. not to appear in court. He took “affirmative action,” Carlson, 791 F.3d at 1010, “designed” to prevent C.S. from testifying, Giles, 554 U.S. at 359.

Blackshire’s recorded statements need not be understood, as he suggests, simply as efforts at “making peace,” or informing C.S. of her right not to testify. Instead, they can reasonably be interpreted as evidencing efforts to “coerc[e], undu[ly] influence, or pressure” C.S. into not showing up in court.

The Court also rejected his remaining claims, including a jury instruction issue based on the invited error doctrine. 

4/18/24: Asking about parole status during a traffic stop does not violate the Fourth Amendment

In United States v. Ramirez, --- F.4th ---, No. 22-50045 (9th Cir. 2024), the Court affirmed the district court’s denial of a motion to suppress.  The issue was whether a police officer violates the Fourth Amendment by asking about parole status during a traffic stop.

Can a police officer during a traffic stop ask someone if he is on parole? Appellant Victor Ramirez contends that asking that question impinges on the Fourth Amendment because it gives the police license to search a parolee—who typically agrees to future searches as a condition of his release—for general criminal activity unrelated to the traffic stop. We disagree and hold that an officer may ask about parole status because it reasonably relates to the officer’s safety and imposes a negligible burden.

When the police pull someone over for a traffic violation, the officer can obviously investigate that traffic infraction. Rodriguez v. United States, 575 U.S. 348, 354 (9th Cir. 2015) (analogizing a traffic stop to a Terry stop). But a traffic stop “exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures.” Id. at 350. Thus, “[t]o be lawful, a traffic stop must be limited in its scope.” Taylor, 60 F.4th at 1239 (citing Rodriguez, 575 U.S. at 354–55).

Besides investigating the traffic violation that warranted the stop, a police officer can also make “ordinary inquiries incident to the traffic stop” and “attend to related safety USA V. RAMIREZ 7 concerns.” Id. (quoting Rodriguez, 575 U.S. at 354–55).1 The Supreme Court has held that lawful “inquiries incident to a traffic stop” may include “checking [a] driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance.” Rodriguez, 575 U.S. at 355. The Court has also held that “attend[ing] to related safety concerns” includes “certain negligibly burdensome precautions in order to complete his mission safely.” Id. at 354, 356. So, for example, an officer may order the driver of a vehicle to exit the vehicle during a traffic stop. Id. at 356 (citing Pennsylvania v. Mimms, 434 U.S. 106, 110 (1977) (per curiam) (“Establishing a face-to-face confrontation diminishes the possibility, otherwise substantial, that the driver can make unobserved movements; this, in turn, reduces the likelihood that the officer will be the victim of an assault.”)). 

Asking someone about his parole status is substantially similar to running a criminal history check during a traffic stop—a practice that we have held passes muster under the Fourth Amendment.

We thus hold that asking someone about his parole status during a traffic stop does not offend the Fourth Amendment. 

4/17/24: Forced use of biometrics to unlock a phone.

In United States v. Payne, --- F.4th ---, No. 22-50262 (9th Cir. 2024), the Court affirmed the district court’s denial of Jeremy Travis Payne’s motion to suppress evidence.

This is a lengthy opinion on 4th and 5th amendment issues. 

Payne was on California parole with various search conditions. During a traffic stop, and after learning about Payne's parole status, officers forcibly used Payne's thumb to unlock his phone.   Officers found incriminating evidence on the phone that led them to his home.  They first entered the house without a warrant for protective sweep before returning with a warrant and finding evidence of drug trafficking. 

After the district court denied his motion to suppress the evidence, he entered a conditional guilty plea to possession of fentanyl with intent to distribute.   

On appeal, Payne argued the compelled use of his thumb and the searches violated his Fourth and Fifth Amendment rights.

First, the Court held the phone search was authorized under Payne's general search condition, mandated by California law, allowing the suspicionless search of any property under his control.  It also rejected the argument that the search was unreasonable on a theory that it violated California’s prohibition against arbitrary, capricious, or harassing searches. In addition, the search of Payne’s photos, videos, and maps on his cell phone did not run afoul of Riley v. California, which held that officers cannot search the contents of an individual’s cell phone incident to their arrest, because Riley does not apply to parole searches of a cell phone.

Next, the Court held that the officers did not violate Payne’s Fifth Amendment privilege against self-incrimination when they compelled him to unlock his cell phone using his fingerprint. Payne established that the communication at issue was compelled and incriminating. The Court held, however, that the compelled use of a biometric to unlock an electronic device was not testimonial because it required no cognitive exertion, placing it in the same category as a blood draw or a fingerprint taken at booking, and merely provided the CHP with access to a source of potential information. Accordingly, the Fifth Amendment did not apply.

Finally, the Court noted: "We would be remiss not to mention that Fifth Amendment questions like this one are highly fact dependent and the line between what is testimonial and what is not is particularly fine. Our opinion should not be read to extend to all instances where a biometric is used to unlock an electronic device. Indeed, the outcome on the testimonial prong may have been different had Officer Coddington required Payne to independently select the finger that he placed on the phone."

4/16/24: Helpful decision on the hearsay exception for statements of a party opponent

In United States v. Mirabal, --- F.4th ---, No. 22-50217 (9th Cir. 2024), the Court vacated Gabriel Mirabal’s conviction by jury trial for two counts of assaulting a federal officer resulting in bodily injury, in violation of 18 U.S.C. § 111, and remanded for further proceedings.

The Court held the district court abused its discretion in excluding the sworn statement of a government attorney as hearsay at Mirabal’s trial because, in a criminal case, the sworn statement of a government attorney in a plea agreement or sentencing memorandum is a party admission, excluded from the definition of hearsay under Federal Rule of Evidence 801(d)(2).

Today, we examine the application of . . . Rule 801(d)(2) in the context of government attorney statements. Doing so, we hold that, in a criminal case, the sworn statement of a government attorney in a plea agreement or sentencing memorandum is a party admission, excluded from the definition of hearsay under Rule 801(d)(2).

There is no question that, as our decision in Van Griffin implies, “the Federal Rules clearly contemplate that the federal government is a party-opponent of the defendant in criminal cases. Nor can it be seriously disputed that, as the Department of Transportation in Van Griffin was the “relevant and competent section of the government” when it came to highway safety, so is the Department of Justice with respect to criminal prosecutions. The logic of our decision in Van Griffin comfortably encompasses formal, signed statements made by a government attorney in filings before a court, such as plea agreements and sentencing memoranda. We therefore hold that when a criminal defendant seeks to introduce such statements at trial, they fall within Rule 801(d)(2)’s hearsay exclusion for statements made by an opposing party.

We do not determine how far Rule 801(d)(2) extends to other government employees. And exactly which departments of the federal government are a party-opponent will depend on a case’s factual circumstances. Today, we hold only that “in criminal cases, the Justice Department certainly should be considered” a party-opponent of criminal defendants. 

4/12/24: Case on appellate waivers and Miller v. Gammie

In United States v. Medina-Luna, --- F.4th ---, No. 23-705 (9th Cir. 2024), the Court dismissed in part and affirmed in part Medina-Luna's appeal from the 41-month prison sentence imposed following his guilty plea to an information charging him with attempted reentry by a removed noncitizen in violation of 8 U.S.C. § 1326. 

Medina-Luna challenged the validity of his waiver of a grand jury indictment.  The Court held that Medina-Luna waived the right to appeal that issue by pleading guilty unconditionally. Relying on the Supreme Court’s decision in United States v. Cotton, 535 U.S. 625 (2002) (holding that defects in an indictment do not deprive a court of jurisdiction), the panel held that an error in procuring a knowing and voluntary waiver of indictment is nonjurisdictional and is therefore waived by a defendant’s subsequent guilty plea.

Citing Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (en banc) (holding that a three-judge panel may recognize a decision as overruled if it is clearly irreconcilable with a later precedent from the Supreme Court), the panel overruled United States v. Travis, 735 F.2d 1129 (9th Cir. 1984), to the extent Travis characterized any defect in the waiver of indictment as jurisdictional. The Court took the opportunity to reaffirm that Miller remains good law in all respects.

The Court also held the sentence was substantively reasonable.