12/29/17: case on 1325 misdemeanors

In United States v. Aldana, --- F.3d---, No. 16-50372 (9th Cir. 2017), the Court affirmed the defendants' misdemeanor convictions under  8 U.S.C. § 1325(a)(1) for attempting to enter the United States “at any time or place other than as designated by immigration officers.”

The Court rejected the defendants' argument that, because the applicable regulations designate entire geographic regions as ports of entry -- rather than just the actual immigration facilities -- and because they entered within that such a region, there was insufficient evidence they had violated the statute.

Instead, the Court held that, for purposes of the statute, a place “designated by immigration officers” refers to a specific immigration facility, not an entire geographic area.

12/27/17: A memorandum worth reading

In United States v. Young, No. 15-50158 (9th Cir. 2017), the Court vacated the defendant's convictions for conspiracy to violate the Racketeer Influenced and Corrupt Practices Act (RICO), conspiratorial and substantive murder under the Violent Crimes in Aid of Racketeering (VICAR) statute, and use of a firearm in furtherance of a crime of violence.

It is a memorandum disposition worth reading.  The Court found the district court erred in admitting through a detective hearsay statements from an alleged gang member implicating the defendant. 

Further, the district court erred in failing to suppress the defendant's inculpatory statements resulting from a deliberate two-step interrogation: "Detectives interrogated Young at the police station for at least twenty minutes without providing any Miranda warnings. Only after Young confessed that he drove the vehicle linked to the shooting (his mother’s car) did the detectives finally give him Miranda warnings." 

On this issue, the Ninth Circuit rejected "the government’s contention that the detectives delayed giving the Miranda warnings so that they could build rapport with Young and get 'biographical' information."

The Court also found the district court plainly erred in failing to instruct the jury accurately as to the culpability required for a criminal conviction under RICO.

The district court instructed the jury that the government must prove that Young “conspired and agreed” that he “or a co-conspirator, would conduct or participate, either directly or indirectly, the conduct of the affairs of the enterprise through a pattern of racketeering activity.” The district court’s instructions obscure the elements of the crime because they do not explain what the defendant, not a co-conspirator, needed to agree to do in order to be found criminally culpable as a conspirator. A defendant is guilty of conspiracy to violate RICO only if the evidence shows that the defendant knowingly and personally “agreed to facilitate a scheme which includes the operation or management of a RICO enterprise.” 

Finally, the Court touched on an important issue to monitor, the impact of Burrage v. United States, 134 S. Ct. 881 (2014) (insisting on but-for causality), on “substantial purpose” or "dual purpose" instructions.

Congratulations to Ben Coleman on another great victory.  And congratulations to Mark Windsor for his tenacious advocacy below. 

12/19/17: Important victory in murder case

Congrats to Davina Chen on the important victory in United States v. Wells, --- F.3d ---, No. 14-30146 (9th Cir. 2017). 

This was a multiple murder case out of Alaska.

You know an opinion is likely coming out for the defense when it begins - "As Justice Louis D. Brandeis warned many years ago: 'The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.'"

The opinion is very long, covering myriad topics. 

Of particular note, the Court excoriated the government for interfering with appointment of counsel under the CJA:

The administration of the CJA is a judicial function for which the Judicial Conference of the United States has approved official guidelines. The prosecution is typically precluded from participating in the determination of a defendant’s eligibility for CJA-appointed counsel. 

The Government’s exclusion from the administration of the CJA is a significant contributing factor to the fairness of our system and the CJA’s role in redressing the imbalance of power between an indigent defendant and the Government. “A contrary position might well result in a system wherein the outcome of criminal trials would be determined by the poverty of the accused rather than the integrity of the factfinding process.” 

The Court warns: "in the future, the Government should tend to its own knitting."

There is also a detailed discussion (ultimately outcome determinative for the defense) on the use of experts to provide criminal profile testimony as substantive evidence of guilt. This should be very helpful going forward.  For instance, the Court rejected the argument that a defendant's opening statement could open the door to such profile testimony.

The Court further explained, "[t]hose jurisdictions that have considered profiles of battering parents, pedophiles, rapists, and drug couriers unanimously agree that the prosecution may not offer such evidence in its case-in-chief as substantive evidence of guilt."

The Court also gives us a good reminder that, "[w]here the district court fails to engage in necessary Rule 403 balancing, we [] review de novo."  And, "[w]e begin with a presumption of prejudice, in reviewing the effects of this erroneous admission."

Additionally, the court has a lengthy analysis of other act evidence under Rule 404, which is worth reading.

There is lots more in the opinion.  But you get the idea.

12/13/17: Categorical case worth noting

In United States v. Werle, --- F.3d ---, No. 16-30181 (9th Cir. 2017), the Court held that, because the defendant’s prior convictions for felony harassment under Washington Revised Code § 9A.46.020(2)(b)(ii) necessarily includes a “threatened use of physical force against the person of another,” it is categorically a crime of violence under § 2K2.1(a)(1) [which uses the same definition as the career offender provision, 4B1.2].

At first blush, the opinion is unremarkable. But then it turns to the discussion of mens rea.

The defendant argued that his prior conviction was not a categorical crime of violence because only negligence was required as to the element of placing the victim “in reasonable fear that the threat to kill would be carried out.”

The Court agreed that was true under Washington law, and agreed (as it must) "that a negligent application of force is insufficient to constitute a 'use of force' and therefore cannot serve as the basis for a crime of violence."

Nevertheless, if found a categorical match.  How, you ask?

[B]ecause § 4B1.2(a)(1) only requires that the state crime has as “an element . . . the threatened use of physical force.” (emphasis added). It is clear that the first element of a conviction under § 9A.46.020(2)(b)(ii)—a knowing threat of intent to kill someone—requires a sufficient mens rea, and so that element by itself may render the conviction a crime of violence. That other elements of the statute may be satisfied with a lower mens rea adds nothing to our inquiry[.]

In other words, so long as just one element of the prior requires a sufficient mens rea, it does not matter that the others require less.

Although this seems (to me) antithetical to the categorical approach, it is now the law.

The Court also rejected the defendant's argument that a threatened use of physical force must convey some prospect that the force could immediately occur.  Thus, even indeterminate threats to kill in the distant future can constitute crimes of violence.

12/12/17: Mathis does not establish a new rule of constitutional law & Federal carjacking is a crime of violence for purposes of 924(c)

In Arazola-Galea v. United States, --- F.3d ---, No. 16-73574 (9th Cir. 2017), the Court held that Mathis v. United States, 136 S. Ct. 2243 (2016), which clarified application of the categorical analysis, did not establish a new rule of constitutional law. 

Thus, the Court declined to give Mathis retroactive application, and on that basis denied the petitioner's request to file a second or successive habeas petition.

In United States v. Gutierrez, --- F.3d ---, No. 16-35583 (9th Cir. 2017), the Court held that federal carjacking (18 U.S.C. 2119), constitutes a crime of violence under the force clause of 18 U.S.C. 924. 

Although carjacking can be committed by intimidation, the Court determined, "[t]o be guilty of carjacking 'by intimidation,' the defendant must take a motor vehicle through conduct that would put an ordinary, reasonable person in fear of bodily harm, which necessarily entails the threatened use of violent physical force."

Thus, carjacking is a predicate offense for brandishing a firearm during a "crime of violence," in violation of 18 U.S.C. § 924(c)(1)(A)(ii). 

12/7/17: Huge categorical victory today

In United States v. Valdivia-Flores, --- F.3d ---, No. 15-50384 (9th Cir. 2017), the Ninth Circuit vacates the defendant's 1326 conviction finding his Washington’s drug trafficking conviction, Wash. Rev. Code § 69.50.401, was not and cannot be an aggravated felony.  In other words, the conviction could not support his deportation.  But there is much more, because the analysis -- which focuses on Washington's overbroad aiding and abetting law -- applies to all Washington crimes, and precludes reliance on the modified categorical approach.  Thus, even if the client admits possession of heroin for sale (as in this case) it does not matter.  

As explained by Davina Chen in more detail below, and bemoaned by the Court, the upshot of the this decision is that “no Washington state conviction can serve as an aggravated felony at all.”  This almost certainly applies for all other federal sentencing predicates, such as ACCA and career offender.  It also likely applies other state's convictions that have the same aiding and abetting law as Washington (not California, sadly).

We have our own Trip Johnston to thank for this huge decision.

Here is Davina's excellent summary:

NO Washington conviction can serve as an aggfel (and by extension, perhaps, a federal sentencing predicate). This is because WA aiding and abetting liability is facially broader than federal aiding and abetting.  Any WA conviction could have been obtained via accomplice liability, because WA law does not require that accomplice liability be charged and it does not require the jury be unanimous.  Ergo . . .no WA convictions match federal analogues.

You will also want to be on the lookout for any prior convictions from: -Indiana-Iowa-Massachusetts-Nebraska-Oklahoma  

So, from the top. In Duenas-Alvarez, the Supreme Court noted that all jurisdictions have abolished the distinction between principal liability and aiding abetting.  So, convictions under state law for aiding and abetting can constitute generic offenses.  For example, in Duenas-Alvarez, aiding abetting a vehicle theft could be generic theft, so long as both the definition of theft and aiding and abetting matched.  

OK, so, since in all jurisdictions, one can be convicted under an aiding and abetting theory, in all cases, we get to argue that our client COULD have been convicted as an aider and abettor.  That is, even if my client is the only named participant in a case, his conviction could have been under an aiding and abetting theory. 

Next step, what does aiding and abetting require?  In federal court and in most jurisdictions, it requires, the defendant to have INTENDED to assist in the crime.  Mere knowledge that one’s conduct will actually assist in the crime is not enough.But in Washington, and the five other jurisdictions listed above, knowledge is enough. You don’t need to intend to assist.  In the example Trip gave at oral argument, if you are driving a taxi, and someone gets in the taxi to travel to a drug deal, the taxi driver may be assisting the drug deal with knowledge, but he doesn’t intend to assist a drug deal.  He doesn’t care.  Is he required to kick the fare out? Under Washington law, apparently he is, or he could face conviction for drug dealing. So, Washington aiding and abetting liability is overbroad because it permits conviction where federal/generic law would not. Since, any conviction could be obtained under this theory of liability, all WA convictions are overbroad.   

What if it’s clear that there was no other participant?  Doesn’t matter, according to Judges O’Scannlain and Marquez.  Since WA law does not require the jury to be unanimous as to whether the conviction is based on principal or aiding and abetting, the statute of conviction is not divisible, so you never get to use the modified categorical approach to determine that the conviction was not based on aiding and abetting. And to the extent that the D cannot show a WA case where the conduct was ACTUALLLY broader than generic aiding and abetting, Judges O’Scannlain and Marquez say it doesn’t matter, because Washington law is overbroad on its face. 

12/6/17: Expert testimony on the ultimate issue

In United States v. Diaz, --- F.3d ---, No. 15-50538 (9th Cir. 2017), the Court affirmed the defendant's conviction for violating 21 U.S.C. 841 based on his running a prescription mill clinic. 

The principal issue revolved around the government's expert physician's testimony that the prescriptions were written “outside the usual course of medical practice” and “without a legitimate purpose.”

The defense argued the testimony amounted to a legal conclusion in violation of Fed. R. Evid. 702 and 704.  The Ninth held otherwise.

We hold that if the terms used by an expert witness do not have a specialized meaning in law and do not  represent an attempt to instruct the jury on the law, or how to apply the law to the facts of the case, the testimony is not an impermissible legal conclusion. See FED. R. EVID. 702(a), 704(a). 

Here, expert testimony was needed to assist the jury. Dr. Chavez’s testimony was helpful because a lay jury would not have the requisite knowledge to evaluate whether the dosage, mix, and course of narcotics prescribed by Diaz were medically appropriate for the conditions being complained of by his patients. Dr. Chavez’s opinions were based on a review of the prescriptions for individual patients, and while he employed phrases that also appear in the elements of § 841(a)(1), such as “outside the usual course of medical practice” and “legitimate medical purpose,” these phrases were used in their ordinary, everyday sense and do not “have a separate, distinct and specialized” legal significance apart from common parlance, Dr. Chavez did not substitute his judgment for the jury’s; he provided a professional opinion about whether a course of conduct comported with the standard of care prevalent in the medical community.

Be wary of the prosecution trying to use this holding in other contexts.

12/4/17: Cal H&S 11351 is divisible as to its controlled substance requirement.

In United States v. Murillo-Alvarado, --- F.3d ---, No. 14-50354 (9th Cir. 2017), the Court held that Cal H&S 11351 is divisible as to its controlled substance requirement.

This was the expected result, because the Court had already reached the same conclusion as to section 11352 in United States v. Martinez-Lopez, 864 F.3d 1034 (9th Cir. 2017) (en banc). 

The Court also concluded the government met its burden under the modified approach.  The key here is that the conviction documents included a certified copy of the guilty plea form which contained a handwritten factual basis in which Murillo-Alvarado admitted that, on May 29, 2001, he “possessed cocaine to be used for purposes of sale.”

This admission to substance, along with the other conviction documents, satisfied the Court that the defendant's plea constituted a conviction for a federal predicate.

11/29/17: Arizona robbery is a crime of violence under 4B1.2

In United States v. Molinar, --- F.3d ---, No. 15-10430 (9th Cir. 2017), a divided panel concluded that Arizona robbery (and armed robbery) is a match for generic robbery.  Thus, it is crime of violence under under section 4B1.2’s enumerated felonies clause.  The Court also determined that Arizona attempt is equivalent to generic attempt.

Of note, the Court held that its prior conclusion in United States v. Taylor, 529 F.3d 1232 (9th Cir. 2008) -- that Arizona armed robbery is a crime of violence section 4B1.2’s force clause -- is clearly irreconcilable with the Supreme Court’s decision in Johnson v. United States, 559 U.S. 133 (2010), and has therefore been effectively overruled.  But this does not help the defendant here.

11/27/17: Riley does not apply to parolees & a Clean Water Act case with lots of interesting issues including on double jeopardy.

In United States v. Johnson, --- F.3d ---, No. 16-10184 (9th Cir. 2017), the Court affirmed the defendant's conviction for felon in possession.

The defendant was on Cal. parole subject to a broad 4th waiver.  After his arrest, police searched his phone without a warrant, finding incriminating text messages. 

The Court affirmed the denial of the defendant's motion to suppress.  Distinguishing Riley and Lara, the Court held the warrantless search of the defendant’s cell phone was constitutionally reasonable, given his status as a parolee and his reduced expectation of privacy.

The Court also rejected the defendant's argument about prolonged seizure of his phone. 

Next, the Court considered whether the consent to search (given by the principal tenant) was valid. The Ninth considers five factors to assess whether consent was voluntary: (1) whether defendant was in custody; (2) whether the arresting officers have their guns drawn; (3) whether Miranda warnings have been given; (4) whether the defendant was told he has a right not to consent; and (5) whether defendant was told a search warrant could be obtained.

The Court affirmed the district court's finding of valid consent. But there is a helpful reminder: "The rule is that failing to object to police entry, when no request for permission to enter was made, does not constitute effective consent."

Other than the Fourth Amendment issues, the Court rejected the defendant's hearsay / Confrontation Clause argument.  It found the subject statement was testimonial, but not offered for its truth.

The Court also considered, and rejected, the defendant's argument about expert ballistic testimony.

Finally, on the government's cross appeal, the Court vacated the defendant's sentence, finding the district court erred in concluding his prior Robbery (PC 211) conviction did not qualify as a crime-of-violence, career-offender predicate.

Moving on.

In United States v. Robertson, --- F.3d ---, No. 16-30178 (9th Cir. 2017), the Court affirmed the defendant's convictions for violating the Clean Water Act (CWA).

Much of the appeal turned on whether the dumping at issue fell within the CWA.  That, in turn, required the Ninth to engage in a lengthy discussion of how to deal with fractured (split) Supreme Court opinions, and when intervening case law is clearly irreconcilable with prior precedent under Miller v. Gamie.

Additionally, the Court joined its sister Circuits in holding a criminal defendant cannot challenge the sufficiency of the evidence at a previous trial following conviction at a subsequent trial.  Thus, the Court rejected the defendant’s argument that the district court should have granted his motion to acquit after the jury deadlocked at his first trial.

There was also discussion, and rejection, of the defendant's challenges to the government's expert.

11/21/17: Federal custody and prosecutorial vindictiveness

In United States v. Brown, --- F.3d ---, No. 16-30143 (9th Cir. 2017), the Court held:

(1) when an inmate serving a federal sentence is transferred to a state institution under a writ of habeas corpus ad prosequendum, he or she remains in “the custody of the Attorney General” -- i.e., in federal custody.  Thus, in this case, the defendant could be federally prosecuted for attempted escape from the state institution.

(2) when the government first indicates it does not intend to bring charges, but then receives (unsolicited) a written confession, and thereafter files charges, this does not create a presumption of vindictiveness.

The case also has some interesting stuff for us appellate people. 

The Court reminds us that, like other jurisdictional challenges, "the merits of a vindictive prosecution claim are reviewable even after entry of an unconditional plea because the defendant is contending that “the very initiation of the proceedings against him” constitute a denial of the due process of law."

Also, there is a good fn explaining that, when no facts are at issue, "the question is purely legal."

11/3/17: 1326 & Batson decision

 In United States v. Hernandez-Quintania, --- F.3d ---, No. 16-50171 (9th Cir. 2017), the Court affirmed the defendant’s conviction for illegal reentry in violation of 8 U.S.C. § 1326. 

The defendant challenged the sufficiency of the evidence establishing that he did not obtain consent to reapply for admission prior to entering the United States.  The Court rejected the argument, holding that, under the statute’s plain language, the consent to reapply must come after the defendant’s most recent removal, regardless of whether he had prior permission to reapply.  

The Court found sufficient evidence that the defendant did not have such permission after his last removal.

The Court also rejected the defendant’s Batson claim, finding he failed to establish a prima facie case of a discriminatory purpose for the preemptory challenges at issue.  

This is a good reminder that, if you are going to make a Batson challenge, you better have something specific to say in support other than that the juror was a minority. 

11/2/17: Interesting obstruction of justice case

In United States v. Johnson, --- F.3d ---, No. 16-50018 (9th Cir. 2017), the Court vacated the defendant's obstruction-of-justice conviction under 18 U.S.C. § 1512(b)(3) for failing to include material information about the use of force upon an inmate in reports documenting the encounter with the inmate. 

Section 1512(b)(3) provides, in relevant part: 

Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to . . . . hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense . . . . shall be fined . . . or imprisoned not more than 20 years, or both. § 1512(b)(3). 

The Court held that, under Fowler v. United States, 563 U.S. 668 (2011), the government had to prove a “reasonable likelihood” that the omitted information would have reached federal officers.  

And, "[a]pplying the Fowler standard, we conclude that the Government failed to present sufficient evidence to show that there was a reasonable likelihood that the communication would reach a federal officer. The Government’s evidence established nothing 'more than [a] remote, outlandish, or simply hypothetical' possibility that Johnson’s reports could have reached a federal officer." 

10/30/17: All about drug scheduling

Did you ever want to learn all about how drugs get on the federal schedules?  

If so, United States v. Kelly, --- F.3d ---, No. 16-10460 (9th Cir. 2017), is the case for you.  

Long story short, the defendant moved to dismiss the indictment against him, arguing the substance he possessed, ethylone, was not properly scheduled.  The district court denied the motion and the Ninth affirmed on a conditional-plea appeal.  

The analysis has to do with the fact that the Controlled Substances Act, as codified at 21 U.S.C. §§ 811(h) and 812(b), permits the DEA to make findings for a parent substance as a basis to temporarily schedule that substance and its isomers.  In this case, ethylone was an isomer of a parent substance that was properly scheduled. 

There is also some discussion of Chevron deference.

If you have a designer drug case (or secretly wish you were a chemist), you should probably read this opinion.   

10/25/17: Shooting bears, petty offenses, and objective vs. subjective good faith

Today's decision in United States v. Wallen, --- F.3d ---, No. 16-30033 (9th Cir. 2017) is full of interesting items. 

The defendant shot and killed three grizzly cubs on his property.  He was charged with violating the Endangered Species Act.   He was convicted after trial before a magistrate judge (over his objection and request for a jury). 

On appeal, the Court rejected the defendant's claim that he was entitled to a jury.  The Court concluded his crime qualified as a petty offense -- for which there is no right to a jury trial -- because the maximum penalty is 6 months.  And the additional potential penalties (such as probation and  restitution) were not "so severe as to indicate that the legislature considered the offense serious." 

The Court further determined that, although the crime did not fit within the petty offense definition in 18 U.S.C. 19, "the federal statutory definition of 'petty offense' under § 19 holds no 'talismanic significance' when determining a defendant’s right to a jury trial." 

After addressing the jury issue, the Court turned to whether the “good faith belief” defense for a prosecution under 16 U.S.C. § 1540 is governed by a subjective, rather than an objective, standard, and is satisfied when a defendant actually, even if unreasonably, believes his actions are necessary to protect himself or others from perceived danger from a grizzly bear. 

The Court agreed with the defendant that his subjective belief controlled.  Accordingly, because the district court applied an objective standard, and the error was not harmless, the Court vacated the conviction and remanded for a new trial.  In doing so, however, it explained: 

We emphasize that, although the ultimate question is whether a defendant held a subjective good faith belief, the objective reasonableness (or unreasonableness) of a claimed belief bears directly on whether that belief was held in good faith.

                                                                            ***

In sum, we hold the “good faith belief” defense under § 1540(b)(3) is available to defendants who, in good faith, subjectively believe they or others are in danger. A factfinder “is not precluded from considering the reasonableness” of this belief “in weighing the credibility of the claim,” but that factfinder “may not substitute its own determination of objective reasonableness . . . [for] what the defendant subjectively believed.” This means that traditional aspects of a self-defense claim – such as the immediacy of the threat, whether the defendant provoked the conflict or the amount of force used,  may be considered for the purpose of determining whether a claimed belief was held in good faith. The standard is subjective, but the objective reasonableness of the defendant’s claimed belief is relevant to the factfinder’s assessment of the sincerity of that claim. 

Finally, here is a good quote for us appellate people: "The 'basic misconception of an essential element of the crime charged' generally 'compels reversal of the conviction,' whether handed down by a judge or jury."

10/17/17: Excellent cumulative error case (a must read)

In United States v. Preston, --- F.3d ---, No. 15-10521 (9th Cir. 2017), the Court vacated the defendant's convictions for aggravated sexual abuse of a child, and remanded for a new trial.

Given the number of errors identified by the Court, this case is a must read.

Here are some highlights:

1.   The Court's discussion of when and how to employ cumulative error analysis is very helpful. 

Where, however, as here, there are multiple trial errors, “‘a balkanized, issue-by-issue . . . review’ is far less effective than analyzing the overall effect of the errors in the context of the evidence introduced at trial against the defendant.” United States v. Frederick, 78 F.3d 1370, 181 (9th Cir. 1996) (quoting United States v. Wallace, 848 F.3d 1464, 1476 (9th Cir. 1988)). This is because the cumulative effect of multiple trial errors “‘can violate due process even where no single error . . . would independently warrant reversal.’” Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007) (citation omitted); see also, e.g., Thomas v. Hubbard, 273 F.3d 1164, 1181 (9th Cir. 2011). In deciding whether the combined effect of multiple errors prejudiced a defendant we ask whether the errors stand in “‘unique symmetry . . . , such that [they] amplify each other in relation to a key contested issue in the case.’” Ybarra v. McDaniel, 656 F.3d 984, 1001 (9th Cir. 2011) (quoting Parle, F.3d 505 at 933).

2.  There is also a very helpful discussion of a witness commenting on the alleged victim's truthfulness.  As part of this discussion, the Court rejected the government's argument about invited error. 

3.  There is a good discussion explaining that a lay witness may not provide general opinion testimony based on his or her experience.  

4.  The Court found error in allowing the alleged victim's brother to testify that, when he heard about the allegation, “there wasn’t any questioning my brother about what he was saying.” The Court explained, "one reasonable way of interpreting it is that Barry found 'what [his brother] was saying' to be beyond question."  Thus, "[b]ecause a reasonable juror would have understood this testimony as Barry professing his belief in the veracity of his brother’s allegations, permitting this testimony was plain error."

 

5.   The Court found plain error in allowing an agent to testify that, during the interrogation, he told the defendant he "did not believe him."  The Court held: "It was [] plainly erroneous for the district court to allow [the agent] to testify that he did not believe [the defendant's] denial of Rosenberg’s allegations."

6.  The Court found error in allowing the defendant's ex-wife to testify about his alleged post-conduct sexual fantasy:

[T]he district court abused its discretion in two ways. First . . . the district court must find that the “other act” sought to be introduced under 404(b) to prove intent is similar to the crime charged. Here, the district court found only that the age of Preston’s stepson in the photograph to which Preston masturbated (8 years old) was similar to Rosenberg’s age when Preston allegedly molested him (10 years old). This finding does not adequately explain or discuss how the act of masturbating to a picture of a boy in underwear—a non-criminal act—is similar to the crime of real-life sexual abuse of a child. 

Second, the district court abused its discretion by finding the evidence admissible under Rule 403.

[A]s this Court has recognized, in many cases, the “link between fantasy and intent is too tenuous to be probative,” as “[p]eople commonly fantasize about doing things they have no intention of actually doing.” And fantasy is even less probative of intent in cases where, as here, intent is not actually disputed—that is, where the defense is a general denial of committing the offense, rather than an admission to an act coupled with a specific denial of the requisite intent. 

7.   The Court also found numerous instances of prosecutorial conduct in commenting on the defendant's failure to testify, vouching for the victim, and misstating evidence.  One is particularly worth noting. 

The government stated in summation: “[Rosenberg] was sexually abused. He told you under oath on the stand. There’s no evidence, there’s no testimony in this case that contradicts Tim Rosenberg’s testimony.”

The Court found this improper, explaining: "where a defendant is the only possible witness who could rebut the testimony of the government witnesses, it is inappropriate for a prosecutor to point out the lack of witnesses or testimony on the other side, because this can only cause the jury to naturally look to the only other evidence there is—the defendant—and, hence, this could be a prohibited comment on the defendant’s failure to testify."

 

10/10/17: Two sentencing decisions

A couple of criminal sentencing decisions today from the Ninth. 

First, in United States v. Bonnett, --- F.3d ---, No. 15-10557 (9th Cir. 2017), the Court joins several other circuits in holding that malingering may support an obstruction of justice enhancement pursuant to U.S.S.G. § 3C1.1.

The Court also held that, when a defendant does not make a factual PSR objection, the district court does not have a Rule-32 obligation to resolve factual disputes.  

Finally, the Court found no error in applying the enhancement for distribution of child pornography for “a thing of value,” based on trading “girl stuff” for “boy stuff.”

Second, in United States v. Slade, --- F.3d ---, No. 16-30150 (9th Cir. 2017), the Court vacated the defendant's sentence, which had been enhanced for a prior crime of violence based on a Washington second-degree assault conviction, Revised Code of Washington section 9A.36.021. 

Following its recent decision in Robinson, the Court concluded section 9A.36.021 criminalizes conduct that does not meet the generic federal definition of crime of violence and is not divisible.  The Court  further determined that its prior decision in United States v. Jennen, 596 F.3d 594 (9th Cir. 2010) -- which reached a contrary conclusion on the crime of violence issue -- was no longer good law following Descamps and Mathis.

9/29/17: Good Miranda Habeas Case

In Rodriguez v. McDonald, --- F.3d ---, No. 12-56594 (9th Cir. 2017), the Court grants habeas relief in a case where "a boy who invoked his constitutional right to the assistance of counsel was denied this assistance, and then was badgered into confessing murder."

There is lots of good language about reinitiating after an invocation.  If you have a case where your client invoked before ultimately confessing, this decision is helpful.

9/26/17: Wide-ranging decision in attempted production of CP case

In United States v. Jayavarman, --- F.3d ---, No. 16-30082 (9th Cir. 2017), the Court issued a lengthy opinion addressing numerous issues in a case where the defendant was convicted of attempting to produce and transport into the United States a visual depiction of a minor engaged in sexually explicit conduct in violation of 18 U.S.C. § 2251(e). 

The key fact was that the defendant thought the person he filmed was a minor, but she was not.  The Court concluded this did not matter:  "We [] hold that a defendant may be convicted of an attempt to violate § 2251(c) if he believes that the victim is a minor, even if the victim turns out to be an adult."

The Court also rejected the defendant's arguments based on the foreign commerce clause, the First Amendment, constructive amendment of the indictment, sufficiency of the evidence, Rule 403,  and failure to provide an interpreter. 

Of note, the Court accepted the government's concession to vacate that the defendant's other conviction for  attempt to aid and abet travel with intent to engage in illicit sexual conduct in violation of 18 U.S.C. § 2243(b).  The Court noted the statute does not cover an attempt to aid and abet:

The substantive statute does not contain an aiding and abetting provision, and the general aiding and abetting statute does not contain an attempt provision. [Thus,] a defendant could be convicted of aiding and abetting an attempt to violate § 2423(b), but he cannot be convicted of attempting to aid and abet a violation of § 2423(b) 

 Because the Court vacate one count of conviction, it remanded for resentencing: "remand of all sentences is often warranted, even when only one conviction is vacated." 

9/15/17: Good 2L1.2 Sentencing Decision

In United States v. Hernandez Martinez, --- F.3d ---, No. 17-50026 (9th Cir. 2017), the Court gives us a favorable ruling on the amended version of 2L1.2.

The provision at issue was 2L1.2(b)(2)(B): If, before the defendant was ordered deported or ordered removed from the United States for the first time, the defendant sustained— . . . (B) a conviction for a felony offense (other than an illegal reentry offense) for which the sentence imposed was two years or more, increase by 8 levels[.]"

The question was "whether the phrase 'sentenced imposed' includes terms of imprisonment that were imposed after the defendant’s first deportation order when assessing the defendant’s eligibility for the § 2L1.2(b)(2)(B) enhancement."  In other words, what if the defendant: (1) sustained a conviction and received less than 2 years, (2) was then deported, (3) came back and received a revocation sentence above 2 years?  Would he or she get the 8-level enhancement?  

The answer is no: "a qualifying sentence must be imposed before the defendant’s first order of deportation or removal."

9/13/17: Hazardous waste case

The moral of the story in United States v. Spatig, --- F.3d ---, No. 15-30322 (9th Cir. 2017), is don't store lots of paint in your yard.  

The defendant was charged with, and convicted of, violating § 6928(d)(2)(A), which prohibits, “knowingly treat[ing], stor[ing], or dispos[ing] of any hazardous waste . . . without a permit.” 

In affirming the defendant's conviction, the Court held the statute defines a crime of general intent. Thus, the district court properly excluded the defendant's diminished capacity evidence.  (Diminished capacity generally cannot be raised as a defense to a general intent crime).  

The Court also affirmed a four-level enhancement under U.S.S.G. § 2Q1.2(b)(3) for cleanup that required a substantial expenditure, due to the $498,562 cost.  It did not "not purport to establish a bright-line rule between substantial and insubstantial expenditures, [but] note[d] that our sister circuits have determined that expenditures of $200,000 or less count as 'substantial.'"

9/12/17: Good case on sealing records of cooperation

In United States v. Doe, --- F.3d ---, No. 15-50259 (9th Cir. 2017), the Ninth Circuit reversed the district court’s order denying the defendant’s motion to seal all documents relating to, or disclosing the existence of, the government’s motion to reduce the defendant’s sentence for substantial assistance in the prosecution of other offenders.

The opinion concludes that disclosing such information creates a genuine risk of harm to the cooperator and can undermine ongoing investigations.  

However, the opinion also assumes without deciding that the public has a qualified First Amendment right of access to court documents and proceedings related to cooperation (which was rebutted in this case).  

The upshot is that district courts must decide motions to seal or redact on a case-by-case basis. Helpfully, the opinion contains substantial ammunition for showing that (1) sealing serves a compelling interest; (2) there is a substantial probability that, in the absence of sealing, this compelling interest would be harmed; and (3) there are no alternatives to sealing that would adequately protect the compelling interest.”

We should use this decision to make that showing. 

 

 

9/11/17: Case on alleged improper contact with jurors

In United States v. McChesney, --- F.3d ---, No. 16-30052 (9th Cir. 2017), the Court affirmed the district court's denial of the defendant’s motion for a new trial on the basis of improper contact with the jury.

The defendant alleged his ex-girlfriend made derogatory comments about him to the jurors at his trial.  The district court sent a questionnaire to the jurors, and none indicated he or she heard the comments.  The court also held a hearing -- at which several witnesses testified about the alleged comments -- but found no credible evidence the comments were made. 

The Ninth Circuit found no errors in these procedures, but noted that live juror testimony might be necessary in other cases.  

The Court also rejected the defendant's claim that his exclusion from telephonic conferences with the district court violated his right to be present at all critical stages. 

Finally, the Court rejected the defendant's claim about destruction of courthouse videos that could have shown the alleged juror interactions.  The Court found the claim forfeited and, in any event, the defendant did not allege bad faith.  

9/8/17: Wide-ranging opinion in Mexican Mafia case

In United States v. Barragan, --- F.3d ---, No. 13-50516 (9th Cir. 2017), the Court issued a wide-ranging opinion affirming the defendants' convictions and most of their sentences in this RICO conspiracy case.

Given the number of issues, the Court treats most of them in summary fashion.  There are, however, a few things worth noting.

On the issue of agents providing testimony about coded language, the Court determined: "the line between lay and expert opinion depends on the basis of the opinion, not its subject matter."  This sets up the troubling possibility that the same testimony would be expert testimony in one case, but lay in another.

As to prosecutorial misconduct in closing, the Court determined, "[t]he prosecutor’s remarks crossed the line."  "[T]he prosecutor emphasized the violent nature of the defendants’ crimes and repeatedly urged the jury to say 'no more.'"  But the Court found harmless error.

It did, however, include the following: "We recognize—and lament—that in the absence of a reversal, some prosecutors may infer from today’s opinion that whatever works is permissible. That would be the wrong conclusion; we today only conclude that the prosecutor’s improper argument was limited in nature, addressed by the district court, and did not have a probable effect on the jury’s verdict in light of the entire record. But forewarned is forearmed. On a different record, we will not hesitate to reverse or even suggest sanctions."

The Court also found that a conviction under Calif. Penal Code § 211—which involves either generic robbery or generic extortion—was categorically a “crime of violence” for purpose of the career offender guideline.

There are myriad other issues discussed, including about wire taps.  I suggest at least skimming the Ninth Circuit summary.

9/7/17: Good case on sentencing reductions and a compelling dissent by Judge Kozinski

In United States v. D.M., --- F.3d ---, No. 16-50243 (9th Cir. 2017), reversing the decision below, the Court held the defendant was eligible for a sentence reduction under Guidelines Amendment 782, which lowered the recommended sentence for drug offenses.

First, the Court determined the appeal was not moot.  Although the defendant had been released from custody, the district court could still reduce his term of supervised release. 

Second, under U.S.S.G. § 1B1.10(b)(2)(B), the district court could consider a number of departures when calculating a sentencing reduction where the defendant has previously provided substantial assistance.  The court was not limited to consideration only of the departure attributable to substantial assistance. 

In other words, if at the original sentencing, the defendant received a departure for substantial assistance, as well as other departures, the district court could consider all of them as part of any reduction: "a court [can], when implementing USSG § 1B1.10(b)(2)(B), [] consider departures that resulted in the previous sentence that were not directly attributable to substantial assistance."  This is distinguished from sentencing reductions, when there was no substantial assistance.  

In United States v. Faagai, --- F.3d ---, No. 15-10621 (9th Cir. 2017), the majority affirmed the district court's denial of a suppression motion.  The majority agreed there was probable cause to believe that contraband would be found in the defendant's truck, and thus the search was permissible under the automobile exception.  Part of this purported probable cause came from calls where the defendant and his alleged drug supplier discussed going to Costco. 

Here is the end of Judge Kozinski's dissent:

The majority strings together a sequence of events like beads on a strand, but doesn’t explain how any of them provide probable cause that Faagai was carrying drugs in his car when he was stopped. Nor do my colleagues reckon with a long line of our cases holding that police suspicions lacking objective evidence are insufficient to establish probable cause. Instead, they fall back again and again on their dubious theory of code words, treating words like “food” and “tools” as nefarious. There’s a vicious circularity to this logic: With the luxury of hindsight, anything at all that Faagai and Penitani might’ve discussed can simply be labeled “code for drugs.” 

Here’s what this case boils down to: Officers had a hunch that a drug transaction was going down. They saw nothing obviously suspicious, but got tired of waiting, watching and wiretapping. They then jumped the gun by executing a warrantless search. Until today, this was not enough to support probable cause, but going forward it will be. This is a green light for the police to search anyone’s property based on what officers subjectively believe—or claim to believe—about someone’s everyday conduct. That puts all of us at risk. Accordingly, I dissent, and I’m off to Costco to buy some food.

9/6/17: case about drug quantity finding in the conspiracy context.

In United States v. Torres, --- F.3d ---, No. 13-50088 (9th Cir. 2017), the Court reviews the mess of Ninth Circuit precedent on drug quantity findings in the conspiracy context.  

Looks like this issue is heading for en banc review.  But for now, the panel found the district court’s jury instruction for determining drug quantities under 21 U.S.C. § 841(b) -- which required the jury to determine drug quantities that were reasonably foreseeable to each defendant in connection with his criminal activity -- was not plain error, even though the jury was not required to find that the drug quantities related to violations were also part of a jointly undertaken criminal activity.

There is a lot of back and forth between the majority and special concurrence on this issue.  If you have a drug conspiracy case going to trial, read this opinion carefully so you can request proper instructions. 

In the 851 enhancement context, the panel also concluded that, even though the defendants' state-court convictions overlapped temporally with their convictions in this case, the state convictions could be considered “prior” convictions that trigger sentencing enhancements under § 841(b).

8/29/17: A good 851 mandatory-minimum case

I'm happy to be writing about one of my cases today.

In United States v. Ocampo-Estrada, --- F.3d ---, No. 15-50471 (9th Cir. 2017), the Court vacated my client's mandatory-minimum, 20-year sentence (although it affirmed his conspiracy conviction). 

The government filed an 851 enhancement before trial, based on Mr. Ocampo's prior conviction under Cal. H&S 11378.    As a result, after the conviction, the district court was forced to impose a 20-year sentence for essentially street-level methamphetamine sales.  

The principal issue addressed by the Court was whether the government proved up the 851 enhancement at sentencing, because the state-court documents it used to establish the prior 11378 conviction did not specify the drug type.  Our argument was that, because the California drug statutes are overbroad compared to their federal counterparts, the mere existence of the 11378 was insufficient to support the federal enhancement without proof of the substance. 

The Ninth Circuit agreed.  Based on the recent en banc decision in Martinez-Lopez, the Court confirmed that section 11378 was  overbroad and divisible.  But it concluded the conviction documents did not satisfy the modified-categorical approach and thus vacated the enhanced sentence. The mandatory minimum is now 10 years, rather than 20.   

8/28/17: All about 3582

In United States v. Mercado-Moreno, --- F.3d ---, No. 15-10545 (9th Cir. 2017), the Court undertakes a lengthy analysis of the proper procedures for resentencing proceedings under 3582(c)(2).  The opinion is full of new rules. None of them help the defendant in this case, as the Court affirms the denial of his motion for a sentencing reduction. 

In a nutshell, when the Guidelines change such that a defendant is eligible for a sentencing reduction under 18 U.S.C. 3582(c)(2): "a district court may supplement the original sentencing court’s quantity findings only when supplemental findings are necessary to determine the defendant’s eligibility for a sentence reduction in light of a retroactive Guidelines amendment. However, the district court may not make supplemental findings that are inconsistent with the findings made by the original sentencing court. We also hold that a district court has broad discretion in how to adjudicate § 3582(c)(2) proceedings, including whether to hold a hearing when making supplemental findings of drug quantity."

While this does not sound all that bad, in practice, it means that if, at the original sentencing, the court found the defendant responsible for "more than" or "at least" X amount of drugs, the court can then supplement those findings at the resentencing to find the defendant responsible for more drugs.  And based on that finding, it can deny the motion for a sentencing reduction.  

So the next time you file a motion under 3582, read this case first. Also, if you have a situation where you can get a favorable finding on specific drug quantity, you might want to ask the district court to make it on the record.  That way, at any resentencing, a new judge cannot go above the previously found amount.  

Finally, for all us appellate people, here is line we are sure to see cited by the government: "In reviewing for abuse of discretion, we may affirm the 'district court on any ground supported by the record, even if the district court’s reasoning differs from our own.'"  

8/25/17 - Two criminal cases

Sorry for the delay, but I'm on vacation.  

Anyway, two cases yesterday.  

In United States v. Walter-Eze, --- F.3d ---, No. 15-50315 (9th Cir. 20017), the Court considered a variety of issues in a health care fraud prosecution. 

The bulk of the opinion focused on the defendant's claim that a conflict of interest created by the district court -- when it conditioned an adjournment on counsel’s paying jury costs and witness fees -- violated her Sixth Amendment right to counsel.  The Court rejected the claim because the defendant could not show prejudice.  The Court also disagreed that prejudice should be presumed because of an actual conflict of interest.  (Concurring, Judge Nguyen explains why the majority's analysis on presuming prejudice was flawed).

The Court also held that the district court did not abuse its discretion in denying a continuance on the day of trial.  

Additionally, the Court found no error in the district court's decision to give a deliberate ignorance instruction after closing arguments completed.  The Court essentially concluded that the defendants' closing argument made the instruction appropriate.  

Finally, the Court rejected the defendant's arguments on loss calculation, leadership role, and restitution. 

In United States v. Robinson, --- F.3d ---, No. 16-30096 (9th Cir. 2017), the Court vacated the defendant's sentence, holding that the Washington crime of second-degree assault, Wash. Rev. Code § 9A.36.021, is not a “crime of violence” within the meaning of U.S.S.G. § 2K2.1. 

The parties agreed the statute was overbroad, and the Court rejected the government's argument that it was divisible under Descamps and Mathis. 

Of note, the Court also determined its prior precedent in United States v. Lawrence, 627 F.3d 1281 (9th Cir. 2010) (considering the same statute) was effectively overruled by Descamps and Mathis. 

8/22/17: Good news in two cases

First, in United States v. Peralta-Sanchez, No. 14-50393 (9th Cir. 2017), the Court granted panel rehearing, and vacated its prior published decision. 

This is good news because the prior majority opinion held that aliens subject to expedited removal proceedings under 8 U.S.C. § 1225 have no Fifth Amendment due process right to hire counsel.  This was true, even if the person is not caught at the border, but inside the country where due process protections are greater.  

In place of the old published opinion, the Court filed a memorandum.  Although the defendant's conviction remains affirmed, the memorandum "assume[d] for purposes of this case only that Peralta-Sanchez had a due process right to retain counsel at his own expense and to be advised by the government of the right to seek withdrawal of admission under 8 U.S.C. § 1225(a)(4) during the proceedings, and thus that his due process rights were violated[.]"

Second, in United States v. Brito, --- F.3d ---, No. 15-30229 (9th Cir. 2017), the Court considered whether a sentencing reduction under 18 U.S.C. § 3582(c)(2) based on retroactive Sentencing Guidelines Amendment can include credit for time spent in state custody. 

The Court said, yes (thus reversing the district court).  It held, “term of imprisonment,” as used in § 3582(c)(2) and § 1B1.10(b)(2)(A), can include time spent in state custody, and  if the district court at the original sentencing gave credit for time spent in state custody , the “term of imprisonment” on the motion for sentence reduction can include the time spent in both federal and state custody. 

8/21/17: Good "official restraint" case from the S.D. Ca

In United States v. Castillo-Mendez, --- F.3d ---, No. 15-50273 (9th Cir. 2017), the Court vacated the defendant's conviction for attempted illegal reentry, and remanded for a new trial.

The Court concluded the district court erred in providing a flawed supplemental instruction on official restraint.  After summarizing the relevant precedent on official restraint, the Court reiterated that, in the attempt to reenter context -- as opposed to a "found in" case -- the key is whether the defendant intended to enter free from official restraint, not whether he or she was actually under official restraint.

Because the district court's supplemental instruction confused those concepts, the conviction could not stand.  The Ninth Circuit concluded with the following:

On remand, the district court should instruct the jury that to convict CastilloMendez of attempted illegal reentry the government must prove specific intent to enter free from official restraint. Should the jury again ask for the definition of official restraint, the district court should remind the jury that official restraint is relevant only as a part of the defendant’s requisite mens rea, and answer with a definition drawn from attempted illegal reentry cases, such as “you must find that the defendant had the specific intent to enter free from official restraint, which means intent to enter without being detected, apprehended, or prevented from going at large within the United States and mixing with the population.”

8/10/17: Interesting qui tam / forfeiture decision

In United States v. Smith, --- F.3d ---, No. 16-10160 (9th Cir. 2017), the Court considered whether two qui tam relators were entitled to intervene in a criminal forfeiture action so that they could recover a share of the proceeds.  

It held they could not, because a criminal forfeiture action does not constitute an “alternate remedy” to a civil qui tam action under the False Claims Act, entitling a relator to intervene.  

Further, because the relators had no interest in the property when the criminal acts were committed, and they were not qualifying bonafide purchasers for value, they did not have standing to intervene under the forfeiture statute, 21 U.S.C. § 853(n)(6).

 

7/31/17: Case about the spousal privilege

In United States v. Seminole, --- F.3d ---, No. 16-30202 (9th Cir. 2017), the Court confirmed the longstanding exception to the adverse-spousal-testimony privilege -- which permits a witness to refuse to testify against his or her spouse -- for cases in which the spouse is the victim of the crime at issue.

In short, a court can compel a victim to testify against his or her spouse regarding the crime.

7/31/17: En banc decision on Cal drug statutes

The long awaited decision in United States v. Martinez-Lopez, --- F.3d ---, No. 14-50014 (9th Cir. 2017) (en banc), is here.  And it is not good news for criminal defendants.

The conclusion is that the Cal drug statutes -- such as HS 11352 -- are divisible with regard to both their controlled substance requirement and actus reus requirement.

This means that, for purposes of determining whether a prior Cal. conviction is a federal sentencing-enhancement predicate, courts can use the modified categorical approach -- i.e., consult the conviction documents to determine the elements to which the defendant pleaded guilty.  So, for example, if the defendant admitted to selling cocaine, the prior conviction will qualify as a drug trafficking offense.

[Had the decision on divisibility come out the other way -- that the Cal. drug statutes were not divisible -- these prior drug convictions would almost never qualify as federal predicates]

There are persuasive dissents.  And Judge Bybee notes he is "concurring in part and dissenting in part, but frustrated with the whole endeavor."

7/10/17: No plain error in sentencing without accepting guilty plea and Cal robbery still a CoV

In United States v. Chavez-Cuevas, --- F.3d ---, No. 15-50480 (9th Cir. 2017), the Court considered whether the district court erred in failing to accept the defendant's guilty plea before imposing sentence.  It further considered whether Cal. 211 was still a crime of violence under the old version of 2L1.2. 

This is a 1326 case out of the S.D. Ca.  The defendant pleaded guilty before a magistrate judge, who recommended the plea be accepted by the district court judge.  The district court, however, imposed sentence without first accepting the plea.    

The Court concluded that, even if this was error, it was not plain error and not structural error.  

As to the sentencing issue, the Court concluded that its prior decision in United States v. Becerril-Lopez, 541 F.3d 881 (9th Cir. 2008) (holding that robbery under Cal. 211 was a categorical CoV under 2L1.2) survives Descamps and Mathis. 

7/5/17: A death penalty reversal and a case on sentencing reductions

Two cases to discuss today. 

First, in Petrocelli v. Baker, --- F.3d ---, No. 14-99006 (9th Cir. 2017), the Court affirmed the petitioner's conviction, but vacated his death sentence.  

This is a pre-AEDPA case.  The petitioner was convicted of murder in Nevada.

In challenging his conviction, the petitioner raised a number of arguments about the use of his confessions and Miranda.  These were rejected.  Of note, there is some discussion of what constitutes and unambiguous invocation.  The panel also reminds us that, even if there is a Miranda violation, the statement can still be used for impeachment, so long as it was voluntary. 

As for the sentence, the petitioner argued the admission of psychiatric testimony during the penalty phase violated his Fifth and Sixth Amendment rights under Estelle v. Smith.  

The psychiatrist, acting at the request of the prosecutor, visited the petitioner in jail to determine his competency to stand trial, failed to provide Miranda warnings, did not seek or obtain permission from appointed counsel to visit or evaluate him, and testified that the petitioner was a dangerous psychopath and incurable.  The prosecutor then highlighted this testimony in closing. 

The panel had no trouble finding a prejudicial, constitutional violation.  Judge Christen concurred to explain that "even if the State could show that the prosecutor’s tactics had not prejudiced the jury’s verdict, Petrocelli’s case is one of the very few in which deliberate prosecutorial misconduct and egregious trial errors warrant habeas relief. See Brecht v. Abrahamson, 507 U.S. 619, 638 n.9 (1993) (stating that a deliberate and especially egregious trial error, or one that is combined with a pattern of prosecutorial misconduct, might warrant habeas relief, even if the jury’s verdict is not substantially influenced)."

Moving on.

In United States v. Padilla-Diaz, --- F.3d ---, No. 15-30279 (9th Cir. 2017), the Court affirmed the district court’s denials of three defendants’ motions for sentence reductions under United States Sentencing Guidelines Amendment 782 and 18 U.S.C. § 3582(c)(2).

The appeal focused on the Sentencing Commission’s Policy Statement § 1B1.10(b)(2)(A), which generally prohibits courts from reducing a defendant’s “term of imprisonment” to “less than the minimum of the amended guideline range.”  

The Court held that § 1B1.10(b)(2)(A): (1) was not inconsistent with 28 U.S.C. § 991(b) (providing that one of the “purposes” of the Commission is to “establish sentencing policies and practices” that “avoid[] unwarranted sentencing disparities among defendants . . . while maintaining sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors.”); (2) did not violate equal protection because it was rational; and (3) did not violate due process even though it was enacted after two of the defendants' guilty pleas. 

 

7/3/17: Booking exception to Miranda, a potential change coming to 1326(d) analysis, and a habeas grant

Busy Monday in the Ninth. 

First, in United States v. Zapien, --- F.3d ---, No. 14-10224 (9th Cir. 2017), the Court affirmed the district court’s denial of the defendant’s motion to suppress his confession.

The defendant invoked his right to counsel after agents read him his Miranda rights.  Then, agents started asking routine booking questions.  While answering those biographical questions, the defendant volunteered that he wanted to make a statement.  Agents again read him his rights, and the defendant confirmed he wanted to make a statement without counsel. 

The Ninth determined, "the booking exception can apply to questioning even after a defendant has invoked his right to counsel."  And because the questions were truly biographical and the defendant reinitiated on his own, there was no Miranda violation. 

 

Moving on, in United States v. Ochoa, --- F.3d ---, No. 15-10354 (9th Cir. 2017), the Court granted a petition for panel rehearing, reversed itself, and vacated the defendant's 1326 convictions.  

The decision itself is straightforward under Ninth Circuit law.  The defendant was an LPR deported for a purported aggravated felony -- conspiracy to export defense articles without a license in violation of 18 U.S.C. § 371 and 22 U.S.C. § 2778.  

On appeal from his later 1326 conviction,  the Court agreed that, by criminalizing unlicensed exports of a broad range of munitions, § 2278 sweeps more broadly than the generic federal aggravated felony or firearms offenses.  The panel further held that § 2278 is not divisible, and thus it did not proceed to the modified categorical approach.  As a result, the conviction did not qualify as an aggravated felony, and could not support the subsequent 1326 conviction. 

The more interesting part of the decision is Judge Graber's concurrence, joined by the other panel members, calling for en banc review of the Ninth's 1326(d) jurisprudence.   The concurrence argues that Ninth Circuit law on 1326(d) challenges has strayed from the statutory requirements:

By permitting collateral legal challenges to an IJ’s removability determination in the way that we do, we retroactively label erroneous-only-in-hindsight (but unappealed) categorical determinations as “fundamentally unfair,” and as satisfying all three requirements of § 1326(d). Our precedent has the effect of nullifying the procedural requirements of § 1326(d)(1) and (2) and creating in their place a new, substantive right to retroactive de novo review, thereby undermining the finality interests the statute was designed to protect. These anomalies call for en banc consideration to bring our jurisprudence in line with the statute and the other circuits. 

Finally, in Hall v. Haws, --- F.3d ---, No. 14-56159 (9th Cir. 2017), a divided panel affirmed the district court's grant of habeas relief in a California murder case.

This case is out of the S.D. Ca.  It followed on Sherrors v. Woodford, 425 F. App’x 617 (9th Cir. 2011), which granted the habeas petition of the co-defendant. 

The issue on the merits is about California Jury Instruction Criminal 2.15, which allowed the jury to infer guilt of murder from evidence that the defendants were in possession of recently stolen property plus slight corroborating evidence.  The Court found the instruction was constitutionally erroneous and prejudicial.  

The case also presented substantial procedural hurdles, because the petitioner essentially abandoned his petition based on the mistaken view he had joined in his co-defendant's petition.  If you have a case where you are litigating a motion to reopen habeas proceedings under Fed. R. Civ. P. 60(b).  This decision is a must read.  

Congrats to Holly Sullivan and Robert Rexrode!

6/30/17: En banc decision on improper contact between a juror and an outside party

In Goody v. Spearman, --- F.3d ---, No. 13-56024 (9th Cir. 2017), the en banc Court reversed the district court's denial of a habeas petition.

The defendant was convicted of murder in California.  He filed a new trial motion alleging one of the jurors was in continuous contact with a "judge friend" about the case and shared information from the judge with the other jurors.  

The California courts rejected the petitioner's claims about this conduct, as did the district court.  

The unanimous en banc Court disagreed.  

The Court reiterated the two-step process "when faced with allegations of improper contact between a juror and an outside party."

At step one, the court asks whether the contact was “possibly prejudicial,” meaning it had a “tendency” to be “injurious to the defendant.” If so, the contact is “deemed presumptively prejudicial” and the court proceeds to step two, where the “burden rests heavily upon the [state] to establish” the contact was, in fact, “harmless.” If the state does not show harmlessness, the court must grant the defendant a new trial. When the presumption arises but the prejudicial effect of the contact is unclear from the existing record, the trial court must hold a “hearing” to “determine the circumstances [of the contact], the impact thereof upon the juror, and whether or not it was prejudicial.”

Because the process was not followed, the Court remanded with instructions to hold an evidentiary hearing on the misconduct and its prejudicial effect.

6/28/17: Two cases about the prior version of 2L1.2

Today, the Ninth Circuit published two decisions under the prior version of section 2L1.2 and its +16 crime of violence enhancement (which no longer exists). 

Briefly:

In United States v. Perez-Silvan, --- F.3d ---, No. 16-10177 (9th Cir. 2017), the Court affirmed a 16-level crime-of-violence enhancement to the defendant’s illegal reentry sentence pursuant to the old version of U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on his prior aggravated assault conviction under Tennessee Code Annotated § 39- 13-102.

The Court determined the Tennessee statute was divisible -- because the subdivisions "carry different penalties, they necessarily contain distinct elements."  Applying the modified categorical approach, the Court held the defendant's conviction qualified as a predicate crime of violence. 

The Court also dismissed the defendant's appeal from his supervised release violation, because the notice of appeal was untimely and he failed to brief any issues about the violation sentence.

Judge Owens concurred "to urge the Commission to simplify the Guidelines" and "spare judges, lawyers, and defendants from the wasteland of Descamps." 

In United States v. Calvillo-Palacios, --- F.3d ---, No. 16-10039 (9th Cir. 2017), the Court affirmed a 16-level crime-of-violence enhancement to the defendant’s illegal reentry sentence pursuant to the old version of U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on his prior aggravated assault conviction under under Texas Penal Code §§ 22.01 and 22.02.   

The opinion contains a lengthy discussion about bodily injury and physical force that might also be relevant in other contexts.  According to the Court, "we have . . repeatedly [held] that threat and assault statutes necessarily involve the use of violent, physical force."

6/26/17: Oregon robbery not violent felony under the ACCA

In United States v. Strickland, --- F.3d ---, No. 14-30168 (9th Cir. 2017), the Court held a conviction for third degree robbery under Oregon law is not a violent felony for purposes of the ACCA.

Under the ACCA's force clause, there must be violent force, i.e., force capable of causing physical pain or injury to another person.

The Oregon statute, however, required only physical force, which is not necessarily violent.

Thus, under the categorical approach, the Oregon statute was not a predicate.

6/21/17: Good Fourth Amendment language

A quick note from a sec. 1983 case today.  

In Brewster v. Beck, --- F.3d ---, No. 15-55479 (9th Cir. 2017), the Court reversed the district court’s dismissal of an action alleging that Los Angeles police officers violated plaintiff’s Fourth Amendment rights when they impounded her vehicle for 30 days pursuant to California Vehicle Code section 14602.6(a)(1). 

There is some good language for criminal suppression motions (citations omitted):

The Fourth Amendment doesn’t become irrelevant once an initial seizure has run its course. A seizure is justified under the Fourth Amendment only to the extent that the government’s justification holds force. Thereafter, the government must cease the seizure or secure a new justification.