1/31/17: Case on the Corpus Delicti Doctrine

Today, in United States v. Niebla-Torres, --- F.3d ---, Case No. 15-10261 (9th Cir. 2017), the Ninth Circuit affirmed the defendant's conviction for conspiracy to possess with intent to distribute marijuana.

Agents arrested the defendant on a remote mountain in Arizona.  He confessed to being a scout, helping others smuggle what he believed was marijuana.  However, no marijuana was found at the location.  Nor did agents find anyone actually smuggling marijuana.  The conviction, therefore, was based mostly on the defendant's video-taped confession.  

The defendant argued the government failed introduce sufficient evidence to corroborate his confession under the corpus delicti doctrine. The corpus delicti doctrine requires that a conviction must rest on more than a defendant’s uncorroborated confession. 

The Ninth Circuit has a two-part test to evaluate whether the government has met its burden under the corpus delicti doctrine.  First, the government “must introduce sufficient evidence to establish that the criminal conduct at the core of the offense has occurred. Second, it must introduce independent evidence tending to establish the trustworthiness of the admissions, unless the confession is, by virtue of special circumstances, inherently reliable.” 

On the facts here -- e.g., the location of his arrest and his demeanor during the confession -- both the district court and Ninth Circuit found the government met its burden under both prongs of the test.  

If you have a case where the only real evidence is your client's confession, this opinion is must read. 

1/30/17: The Ninth Circuit affirms the government's stretch.

Today, in United States v. Laursen, --- F.3d ---, Case No. 14-30244 (9th Cir. 2017), the Court proves the old adage that bad facts make bad law. 

The opening line of the opinion is: "In this appeal we address whether taking consensual nude “selfies” involving a forty-five-year-old man and a sixteen year-old girl is sufficient to support a conviction for production and possession of child pornography."

Here is how the concurrence sums up the case:

Michael Laursen stands convicted of the “use” of a minor to engage in sexually explicit conduct for the purpose of producing visual depictions of that conduct and is currently serving the fifteen-year mandatory minimum sentence the statute requires. The photos in question were taken in the course of an ill-advised, but perfectly legal, relationship Laursen had with a young woman above the age of consent under Washington law. The record shows no evidence that Laursen distributed, transferred or otherwise displayed the images to anyone outside that relationship. In this respect, his situation is no different than the thousands of similar photos taken everyday by seventeen-year-old college students engaged in intimate, consensual relationships. The government admits the theory of prosecution here could be used to prosecute anyone snapping a photo showing consenting individuals engaged in intimacy.

In the course of affirming the conviction, the Court rejects all the defendant's arguments.  If you have a production case, this opinion is a must read.

1/27/17 - Solicitation of drugs does not qualify as a federal controlled substance offense

Today, in Sandoval v. Yates, --- F.3d ---, Case No. 13-71784 (9th Cir. 2017), the Ninth Circuit held that the petitioner's conviction for delivery of a controlled substance under Oregon Revised Statutes § 475.992(1)(a) was not an aggravated felony because definition of “delivery” includes mere solicitation, and the federal Controlled Substances Act does not punish soliciting delivery of controlled substances.

Although this is an immigration case, it is equally helpful in the criminal context. 

There is a very clear discussion of both the categorical and modified categorical approaches.  

Additionally, the holding that the CSA does not punish mere solicitation is useful for challenging sentencing predicates. 

According to the Court, "[w]hile strongly corroborative of intent to commit a crime, [solicitation] does not cross the line between preparation and attempt."

This is a good reminder that, when your client's predicate is a state law offense, check to see whether the state's law is interpreted more broadly than its federal counterpart. 

1/19/17 - Case about double counting under the Guidelines

Today, in United States v. Joey, --- F.3d ---, Case No. 15-10096 (9th Cir. 2017), the Ninth Circuit rejected the defendant's double counting argument in the context of his convictions for abusive sexual contact under 18 U.S.C. § 2244(a)(5) and committing a felony offense involving a minor while required to register as a sex offender under 18 U.S.C. § 2260A.

The defendant's claim was that, because the Guidelines prohibit applying specific offense enhancements "based on the same conduct as the conduct comprising the conviction under . . .  § 2260A," the district court erred in applying such enhancements to his convictions under 2244(a)(5).

The Ninth Circuit held:  "Because the Guidelines do not contain any instruction that precludes a district court from applying § 4B1.5 in calculating the Guidelines sentencing range for a § 2244(a)(5) conviction where a defendant has also been convicted under § 2260A, but rather instruct district courts to determine the Guidelines sentencing range for the § 2244(a)(5) count independently of § 2260A, the district court did not procedurally err in calculating the applicable Guidelines sentencing range."

There is significant discussion of the law about double counting under the Guidelines.  If you have a double counting issue, this case is a must read.