3/29/17: One opinion, lots of issues

In United States v. Plascencia-Orozco, --- F.3d ---, Case No. 15-50143 (9th Cir. 2017), the Court addressed, and rejected, of host of issues raised in the context of a 1326 trial.

Here is how the opinion starts: 

We seldom run into a “frequent flyer” as “frequent” as appellant. Over his 46-year career as an illegal entrant, he has been deported or removed dozens of times. But what makes him stand out as a “cara dura” [chutzpah] is not only that on some of these entries, he used the name and stolen documents of an innocent father of five, but that he now testifies before the wife and mother that he actually fathered two of the innocent’s children. Despite the numerous grounds he now urges on appeal, we affirm.

The opinion then goes on to address the defendant's request for a fourth attorney, plea-agreement breach, multiple alleged evidentiary errors, a substantive reasonableness challenge to the 184 month sentence, and the district court's freestanding order directing the defendant to use his true legal name.

The breach issue is worth discussing.  The defendant had a prior plea agreement in which the government promised not to prosecute him for certain charges unless he again illegally reentered the country.  When he did so, the government indicted him on the previously un-pursued charge.  The Court held:

[T]he proper way for a defendant to raise a prior plea agreement as a defense to a criminal charge is to move to dismiss that charge under Federal Rule of Criminal Procedure 12(b). If the government thinks that the defendant has breached the plea agreement, such that it no longer applies, then it must proffer sufficient evidence to establish that breach by a preponderance of the evidence. The matter need not be submitted to a jury, nor need it be decided before the indictment or information is filed. The district court followed these procedures here, and its ruling at the motions in-limine hearing that Plascencia had breached his plea agreement was not reversible error. 

Also of note, the Court vacated the district court’s order directing the defendant to “use his true name of Ramiro Plascencia-Orozco.”

3/13/17 – 3/14/17: Important Fourth Amendment cases

Beginning with United States v. Perkins, --- F.3d ---, Case No. 15-30035 (9th Cr.2017), this is a CP case in which the Court reversed the district court’s denial of a motion to suppress evidence obtained from the defendant’s computers pursuant to a search warrant and vacated the defendant's conviction. 

This is a rare case where the Court determined the investigating agent intentionally or recklessly misled the magistrate who issued the warrant. 

The agent omitted the fact that Canadian agents who first found the images that ultimately led to the warrant concluded they were not of a sexual nature and thus not illegal.  According to the Court, "[t]hese omissions reveal a clear, intentional pattern in Agent Ensley’s actions: he selectively included information bolstering probable cause, while omitting information that did not. We have recognized that an affiant can mislead a magistrate “[b]y reporting less than the total story, [thereby] . . . manipulat[ing] the inferences a magistrate will draw.”

The Court determined, "[b]y providing an incomplete and misleading recitation of the facts and withholding the images, Agent Ensley effectively usurped the magistrate’s duty to conduct an

independent evaluation of probable cause."

The Court further concluded that, once corrected, the warrant would not establish probable cause.  In reaching this conclusion, the Court explained that the defendant's prior criminal history, which included a child molestation conviction, had only marginal relevance.  Finally, the Court held that the images themselves were not sufficient to establish probable cause: “In short, a warrant application explaining that an individual with two 20-year-old convictions was in legal possession of two non-pornographic images while traveling through Canada is insufficient to support probable cause to search his home computers in Washington for child pornography”

Note: this was a 2-1 decision. 

Moving on, the next two cases come from the Southern District of California. 

In UnitedStates v. Rodriguez, --- F.3d ---, Case No. 15-50096 (9th Cir. 2017), the Court vacated the defendant’s sentence – which was enhanced under 21 USC 851 – because the district court failed to comply with the statutory procedures.  Specifically, the district court failed to comply with 851(b), which requires the court address the defendant personally, inquire if he or she denies the alleged convictions, and inform him or her that any challenges not brought will be waived.  On the specific facts here -- some confusion as to whether the defendant disputed convictions, and added confusion over the proper standard to apply in ruling on the 851 (beyond a reasonable doubt) -- the Court could not say the error was harmless.

This is an important case to read whenever you have an 851 enhancement looming. 

The Court also discussed an important area of Fourth Amendment law, how a district court should evaluate a wiretap warrant approved by a different district court judge.  It held: a reviewing district court judge should apply the Ninth Circuit’s two-step approach: (1) review de novo whether the application for a wiretap contains a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or be too dangerous; and (2) if the application meets those requirements, review for abuse of discretion the issuing judge’s conclusion that the wiretap was necessary.

There is also a lengthy discussion of the necessity requirement.

Finally, in United States v. Job, --- F.3d ---, Case No. 14-50472 (9th Cir.2017), the Court vacated one of the defendant’s convictions and his sentence in a meth conspiracy case. 

The Court found the district court erred in denying the defendant’s motion to suppress evidence found during searches of his person, car, and home solely on the basis that the defendant, who was on probation for a nonviolent offense, was subject to a Fourth Amendment search waiver at the time of the searches.

Because the police did not learn of the Fourth Waiver until after the searches, it could not support them.  On this point, the Court explained, “A Fourth Amendment search waiver cannot provide a justification for a search of a probationer where the officers were unaware of the waiver before they undertook the search.”

Further, the Court explained that its decision in King, which allowed certain suspicionless searches when there was a Fourth Waiver, applied only to violent felonies. 

The Court also rejected the government’s attempt to justify the search of the defendant as a valid Terry stop or his car under the automobile exception. 

The opinion also has good language on the harmless error standard: “Review for harmless error requires not only an evaluation of the remaining incriminating evidence in the record, but also the most perceptive reflections as to the probabilities of the effect of [the] error on a reasonable trier of fact. We must be convinced that the improperly admitted evidence did not contribute to the verdict, and the government bears the burden of showing the harmlessness of the error.”

As to sentencing issues, the Court reiterated that, when the defendant makes specific PSR objections, the district court “must —for any disputed portion of the presentence report or other controverted matter —rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing.”

There is also an important discussion of the +2 for importing meth under 2D1.1(b)(5).  The government argued for a strict liability standard such that the increase would apply “so long as the government proves that the drugs were imported by someone — and regardless of the defendant’s intent, knowledge, or lack of knowledge that the drugs were imported.”  The Court rejected the approach.  Thus, the defendant must actually know the drugs were imported.  Or, if the enhancement is alleged to apply on the basis of joint activity, the importation must be at least reasonably foreseeable.

3/10/17: Interesting case on failure to consult with defense counsel before answering jury question

Today, in United States v. Martinez, --- F.3d -- Case No. 15-50205 (9th Cir. 2017), the Court vacated the defendant's sentence because the district court  failed to notify and consult with defense counsel before responding to a jury question seeking guidance on the significance of the special finding as to the defendant’s removal date that escalated the statutory maximum sentence from two years to twenty. 

In this 1326 case, the jury was asked to return a special verdict on the defendant's removal date (which as noted impacts the statutory maximum).  The jury sent a note asking, “On the jury form, what significance is the date of December 3rd, 2010? (on the portion that asks if he was deported subsequent to the date of 12/3/2010).” The court, without notifying or consulting counsel, wrote its response directly on the jury note, stating, “It is a matter for the court to consider, not the jury. The jury has to consider whether the defendant was deported or removed after that date.”

A few minutes later, the jury found the defendant guilty and answered the special verdict question in the affirmative.  The district court convened the parties, informed them that it had received a note from the jury. The district court then stated, “I didn’t think it was important to bring [counsel] back in to answer this question, so I answered it myself.” The judge also told counsel, “So you know, if you have a problem with that, I guess you’ll take it up with the Court of Appeals.” 

On appeal, the Ninth Circuit found that the district court's action violated Rule 43 and the Sixth Amendment.  It also found the error was not harmless beyond a reasonable doubt.  

The decision is worth a read.  It is also an important reminder that we should always ask the court to instruct the jury that it must apply the beyond a reasonable doubt standard to special verdict questions that impact the minimum or maximum sentence. 

3/8/17: "there is no need for the dissent’s 'the sky is falling' rhetoric."

Last June, in Cuero v. Cate, 827 F.3d 879 (9th Cir. 2016), the Ninth Circuit reversed the district court’s denial of habeas relief. (Full disclosure, this is one of my cases.)

The case came out of California state court.  In short, the client pleaded guilty in exchange for a promise of 14 years, 4 months.  Post plea, but before sentencing, the state amended the charging document and Mr. Cuero received a sentence of 25 to life.  (Yes, that really happened). 

From my view, the habeas was a clear application of Santabello, and a majority of the panel agreed. 

The State then filed for rehearing en banc, which we obviously opposed.  

Today, the Court issued a lengthy published order denying the petition for rehearing (here).   The order and dissent contain significant discussions of both California and Federal law on plea deals and the government's duty to fulfill its promises. 

As Judge Wardlaw correctly notes:  "The panel majority opinion speaks for itself. I respectfully suggest that there is no need for the dissent’s “the sky is falling” rhetoric. This is the rare case where the state court’s decision was contrary to then-clearly established Supreme Court law governing guilty pleas induced by agreements with the prosecutor. It is no wonder that a majority of our active judges declined to rehear this simple appeal en banc."

Hopefully, SCOTUS lets this be the final word. 

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In other news, the Ninth Circuit decided an interesting forfeiture case today.  

In United States v. Pollard, --- F.3d ---, Case No. 15-10246 (9th Cir. 2017), the Court upheld a criminal forfeiture order based on the defendant's aggravated identity theft (1028A) conviction, because  "[a]n essential element of [the] aggravated identity theft plea was an admission that [the defendant] committed and aided and abetted bank fraud." 

This stuff gets pretty confusing.  But basically, under 28 U.S.C. § 2461(c), the government may seek criminal forfeiture whenever civil forfeiture is available and the defendant is found guilty of the offense.  The statute, therefore, “make[s] criminal forfeiture available in every case that the criminal forfeiture statute does not reach but for which civil forfeiture is legally authorized.” 

Although a violation of § 1028A, is not itself an enumerated offense in either the civil or criminal forfeiture statutes, a conviction under 1028A requires the improper use of the identity in the course of committing certain predicate offenses.   And some of those predicate offense, like bank fraud, qualify for civil forfeiture. 

Thus, the Court held that, when a conviction for aggravated identity theft is premised on a proven or admitted violation of a predicate offense that is enumerated in the civil forfeiture statute, then forfeiture is authorized. 

And that was the situation before it.  There is also some discussion of appellate waivers. 

3/7/17: Case rejecting vagueness challenge to supervised release condition

Today, in United States v. Sims, --- F.3d ---, Case No 15-10450 (9th Cir. 2017), the Court rejected a vagueness challenge to a special condition of supervised release prohibiting the defendant from possessing, distributing, inhaling, or ingesting synthetic cannabinoids.

The condition was as follows:

The defendant shall not knowingly possess, distribute, inhale, or ingest any synthetic cannabinoid, defined as a substance that mimics the effects of cannabis and applied to plant material, often referred to as “synthetic marijuana,” “K2,” or “Spice,” without the prior approval of the court.

The Ninth found no problem with the condition and distinguished it from a condition that it previously rejected in United States v. Aquino, 794 F.3d 1033 (9th Cir. 2015).

3/6/17: SCOTUS says no vagueness challenges to the Guidelines

Today, in Beckles v. United States, 580 U.S. ---, Case No 15-8544 (2017), the Court held that the advisory Guidelines are not subject to vagueness challenges under the Due Process Clause.

This case follows on Johnson, which held the residual clause in ACCA was unconstitutionally vague.

In Beckles, the Court considered whether the same analysis should apply to the identically worded residual clause in the career offender Guidelines (4B1.2).  In rejecting any vagueness challenge to the Guidelines, the Court explained, "[u]nlike the ACCA, . . . the advisory Guidelines do not fix the permissible range of sentences. To the contrary, they merely guide the exercise of a court’s discretion in choosing an appropriate sentence within the statutory range. Accordingly, the Guidelines are not subject to a vagueness challenge under the Due Process Clause."

Justice Sotomayor concurs in the judgment, but explains why the majority analysis is flawed.  Her concurrence is worth a read.

3/3/17: Very good 1326 "official restraint" case & a troubling habeas decision

It is Friday, let's start with the good news.

In United States v. Vazquez-Hernandez, --- F.3d ---, Case No. 15-10009 (9th Cir. 2017), the Court vacated the defendant's attempted illegal reentry conviction on plain-error review.

The defendant was washing windows on the South side of a port of entry, but technically within U.S. territory.  Agents arrested him.  The district court failed to instruct the jury that, to sustain the conviction, the government needed to prove the defendant attempted to enter free from official restraint.  The jury convicted.

On appeal, the Ninth Circuit, explained, "[t]he Fifth and Sixth Amendments require criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged beyond a reasonable doubt. United States v. Gaudin, 515 U.S. 506, 509–10 (1995). Jury instructions misstate the essential elements of an offense when they do not adequately link the intent element of a crime with the required object of that intent."

And that was the error in failing to instruct on official restraint.  Moreover, as to intent to enter free from official restrain, the evidence was insufficient.  Thus, there can be no retrial.

If you have an attempted 1326 near the border, this case is a must read.

In Robertson v. Pichon, --- F.3d ---, Case No. 15-16463 (9th Cir. 2017), the Court affirmed the denial of habeas in a case where the petitioner invoked his right to counsel in response to a request to take a chemical test in the DUI context.  The Court held that because the Supreme Court has not addressed whether a defendant’s request for counsel in response to a request to submit to a chemical test constitutes an invocation of his Miranda rights for purposes of any future custodial interrogations, the state court’s ruling that the admission of Robertson’s statements did not violate Miranda and Edwards is not objectively unreasonable.

Luckily, Chief Judge Thomas concurred to explain that the result was compelled by the AEDPA standard of review, but wrote that if the appeal were on direct review, it might be a different outcome.

3/1/17: Habeas rule worth knowing

Although Mahrt v. Beard, --- F.3d ---, Case No. 15-16404 (9th Cir. 2017) did not end well for the petitioner -- the 9th reverses the district court's habeas grant -- there is a good rule that comes out of the decision.  

The Court held that an ineffective assistance of counsel claim based on pre-guilty plea conduct of counsel -- in this case, failing to file suppression motion -- is not barred by Tollett v. Henderson, 411 U.S. 258 (1973).  According to the Court, Tollet, properly understood, does not bar federal habeas claims of pre-plea ineffective assistance of counsel when the action, or inaction, of counsel prevents petitioner from making an informed choice whether to plead. 

In other words, because ineffective assistance of counsel in failing to bring a pre-trial motion could impact the decision to plead, that claim in cognizable on federal habeas.