4/21/17: Interesting public record / confrontation case & a restitution case

First, in United States v. Fryberg, --- F.3d ---, No. 16-30013 (9th Cir. 2017), the Court held that a tribal "return of service," which the prosecutions used to prove the defendant had been served with notice of a hearing on a domestic violence protection order, was admissible under the public record hearsay exception in Fed. R. Evid. 803(8)(A)(ii), and that admission of the return of service did not violate the defendant’s rights under the Confrontation Clause because it was not testimonial.

The issue arose in a prosecution for possession of a firearm by a prohibited person in violation of 18 U.S.C. § 922(g)(8) (person subject to certain types of domestic violence protection orders).  

At trial, the government admitted a return of service to show the defendant had been served with the protection order.  However, the officer who actually served the defendant and completed the return did not testify (he died before trial). 

The Court found the return was hearsay but qualified as a public record because completion of the return was an “appropriate to the function” of the tribal court system and thus the officer was under a legal duty to report when he completed it.  Moreover, the fact that service had been effected was a “matter observed.” 

The Court further determined the law-enforcement exception did not apply because the return merely recorded the completion of the largely ministerial task of serving Defendant with notice of a hearing.

Finally, the Court held the return was not testimonial for purposes of the Confrontation Clause because its primary purpose was to inform the tribal court that Defendant had been served with notice of the hearing on the protection order, which enabled the hearing to proceed. 

Second, in United States v. Johnson, --- F.3d ---, No. 15-30350 (9th Cir. 2017), the Court clarified that, under the Mandatory Victim Restitution Act, district courts could properly order restitution for all victims harmed by the defendant’s scheme to defraud, including those harmed by conduct beyond the count of conviction.

4/20/17: Two cases today

The Ninth Circuit issued two published criminal decisions today.  Neither case is particularly relevant to our day-to-day practice. 

First, in United States v. Ramirez-Muniz, --- F.3d ---, No. 15-10560 (9th Cir. 2017), the Court held that Cal. Penal Code § 192(a) matches the generic definition of “manslaughter” and is therefore categorically a crime of violence under the old version of § 2L1.2(b)(1)(A)(ii).  

As the opinion states, "Amendments effective November 1, 2016, eliminated the language of U.S.S.G. § 2L1.2 at issue in the instant appeal."

Of note, the opinion does not impact the Court's prior precedent holding that Cal. Penal Code § 192(a) is not crime of violence under 18 U.S.C. § 16's residual clause.  Instead, the opinion based its conclusion on the fact that manslaughter was an enumerated offense under section 2L1.2.

Second, in United States v. Harris, --- F.3d ---, No. 16-10152 (9th Cir. 2017), the Court held that when a defendant owes restitution and is the beneficiary of a discretionary support trust, the government can obtain a writ of continuing garnishment for any distribution from the that trust until restitution is satisfied. 

4/17/17: Important sentencing decision from the Second Circuit

Today's decision in United States v. Jenkins, --- F.3d ---, No. 14-4295-cr (2d Cir. 2017), is a must read for anyone handling CP cases.  And it has great language in general. 

The defendant went to trial on charges of possession and transportation of child pornography after he was found with a collection of child pornography on his laptop and thumb drive as he crossed the U.S.-Canada border on his way to a family vacation.  He was convicted and the district court sentenced him (as a first offender) to 225 months in prison followed by 25 years of supervised release. 

On appeal, the Second Circuit vacated the sentence as substantively unreasonable, even though it was within the the Guidelines range. 

The opinion carefully dissects section 2G2.2 and its run-of-the-mill sentencing enhancements. 

The Court noted, "[i]n 2014, for example, 95.9% of defendants sentenced under § 2G2.2 received the enhancement for an image of a victim under the age of 12, 84.5% for an image of sadistic or masochistic conduct or other forms of violence, 79.3% for an offense involving 600 or more images, and 95.0% for the use of a computer."  

Moreover, "[s]ince the Commission has effectively disavowed § 2G2.2, it should be clearer to a district court . . . that this Guideline 'can easily generate unreasonable results.'" 

The opinion also explains: "Additional months in prison are not simply numbers. Those months have exceptionally severe consequences for the incarcerated individual. They also have consequences both for society which bears the direct and indirect costs of incarceration and for the administration of justice which must be at its best when, as here, the stakes are at their highest."

Finally, the Court has a very helpful discussion on supervised release and its broad restrictions.  

4/14/17: Good constructive amendment case

Constructive amendment is one of those tricky areas that can easily go unnoticed.  Today's decision in United States v. Davis, --- F.3d ---, No. 15-10402 (9th Cir. 2017) provides a good refresher.  

The Court vacated the defendant's conviction for attempted sex trafficking of a minor in violation of 18 U.S.C. § 1591(a), based on constructive amendment.  

The Court explained: “A constructive amendment occurs when the charging terms of the indictment are altered, either literally or in effect, by the prosecutor or a court after the grand jury has last passed upon them.” There are two types of constructive amendment: first, where “there is a complex of facts [presented at trial] distinctly different from those set forth in the charging instrument,” and, second, where “the crime charged [in the indictment] was substantially altered at trial, so that it was impossible to know whether the grand jury would have indicted for the crime actually proved.” 

This case involved the second type.  The indictment charged the defendant with knowing or being in reckless disregard of the fact that the person had not attained the age of 18 years.

The jury instructions and closing argument, however, created a third basis for liability: having a reasonable opportunity to observe her.  The district court specifically told the jury "the Government need not prove that the defendant knew Bianca had not attained the age of 18 so long as the defendant had a reasonable opportunity to observe Bianca."

The Ninth found this was a constructive amendment:  "It is evident that the language of the indictment differs substantially from the jury instruction and the government’s closing argument."

The Court further distinguished between constructive amendments and mere variances: “a constructive amendment typically mandates reversal, while ‘a variance requires reversal only if it prejudices a defendant’s substantial rights.’”  It explained "An amendment of the indictment occurs when the charging terms of the indictment are altered, either literally or in effect, by the prosecutor or a court after the grand jury has last passed upon them. A variance occurs when the charging terms of the indictment are left unaltered, but the evidence at trial proves facts materially different from those alleged in the indictment.

In this case, "the district court’s jury instruction and the government’s argument had the effect of altering the terms of the indictment."

4/13/17: Great qualified immunity case

I'm writing about this case because of the Fourth Amendment discussion.  

Today, in Davis v. United States, --- F.3d ---, No. 15-55671, (9th Cir. 2017), the Ninth Circuit denied qualified immunity to an agent who detained an elderly woman for several hours during a search with a warrant. The case started when the woman tried to sell paperweights belonging to her late husband, one of which contained a piece of moon rock. 

The facts are pretty egregious:

At the time of the detention, Conley [the agent] was aware of several facts that color the reasonableness of his actions. First, Conley knew that Davis was a slight, elderly woman, who was then nearly seventy-five years old and less than five feet tall. Second, he knew that Davis lost control of her bladder during the search and was wearing visibly wet pants. Third, he knew that Davis and Cilley were unarmed and that the search warrant had been fully executed by the time Davis was escorted to the parking lot. Fourth, Conley knew that Davis had not concealed possession of the paperweights, but rather had reached out to NASA for help in selling the paperweights. Finally, because all but the first of the phone calls between Davis and “Jeff” were recorded, Conley knew the exact content of most of those conversations, including that Davis was experiencing financial distress as a result of having to raise grandchildren after her daughter died, her son was severely ill and required expensive medical care, and Davis needed a transplant. Those conversations also revealed Davis’s desire to sell the paperweights in a legal manner and her belief that she possessed them legally because they were a gift to her late husband.

The Court explained, under the Fourth Amendment, “a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.” Nevertheless, “special circumstances, or possibly a prolonged detention, might lead to a different conclusion in an unusual case.” For instance, search related detentions that are “unnecessarily painful [or] degrading” and “lengthy detentions[] of the elderly, or of children, or of individuals suffering from a serious illness or disability raise additional concerns.” Thus, a “seizure must be ‘carefully tailored’ to the law enforcement interests that . . . justify detention while a search warrant is being executed.”

The search here "was unreasonably prolonged and degrading."  As such, the agent was not entitled to qualified immunity as a matter of law.

4/11/17: Douglas Crooked Arm and the stolen eagle feather

A great title for today's disappointing decision in United States v. Crooked Arm, --- F.3d ---, No. 15-30277 (9th Cir. 2017). 

This is the second published decision arising from a prosecution in which the defendants were convicted of conspiring “to kill, transport, offer for sale, and sell migratory birds, including bald and golden eagles” in violation of the Migratory Bird Treaty Act."

The issue this time involved whether the defendants' felony sentences violated Apprendi because their guilty pleas established only misdemeanor conduct. 

The majority sidesteps the issue, using a law of the case analysis.  Essentially, the majority held that, because the prior Panel decision left in place the defendants' conspiracy convictions, they could not now challenge the sentences arising from those convictions.  

In a thorough and compelling dissent, Judge Nguyen was having none of it.  

She explained:  "Crooked Arm’s and Shane’s felony sentences violate Apprendi v. New Jersey, 530 U.S. 466 (2000), because the conspiracy object to which they admitted—selling migratory bird feathers—was only a misdemeanor."

Further, "[t]he majority’s flawed reasoning is as follows: the prior panel, by not vacating the convictions, implicitly ruled that Defendants should be sentenced as felons on remand. But the panel made no such ruling, which would have required a finding that Defendants admitted to one of the felony objects—rather than the misdemeanor objects—alleged in Count I’s multi-object conspiracy. Instead, the panel held that Count I charged a felony in part, that Defendants admitted only to a conspiracy to sell feathers, that the sale of feathers was a misdemeanor, and that Defendants’ felony sentences must be vacated."

In my favorite line, Judge Nguyen writes of the majority:  "Respectfully, this reasoning substitutes a strawman argument for the one Defendants actually make."

I suggest reading the dissent. 

4/10/17: Commonsense habeas ruling

Today, in Nasby v. McDaniel, --- F.3d ---, No. 14-17313 (9th Cir. 2017), the Court gives us a nice dose of commonsense.  It concluded district courts must actually review the state court record before deciding (denying) a habeas petition, rather than merely relying on the state court's summary of the record.  

In true twilight zone fashion, the state argued AEDPA prevents a federal habeas court from reviewing the record and obliges it to accept the state court’s description of facts on faith.  The Ninth, held, "[t]his is clearly wrong. Far from requiring that a federal court accept the state court’s description of the facts without conducting an independent examination of the record, AEDPA demands the opposite."

4/7/16: Good decision on categorical approach and Cal Veh. Code 10851

Today, in United States v. Arriaga-Pinon, --- F.3d ---, No. 16-50188 (9th Cir. 2017), the Court vacated the defendant's sentence because the district court erred in concluding his prior conviction under California Vehicle Code section 10851(a) was an aggravated felony.

The Court sidestepped the issue of whether its prior law on divisibility is still valid after United States v. Mathis, 136 S. Ct. 2243 (2016), although Chief Judge Thomas concurred to suggest it is not and that en banc review is appropriate.  

Instead, the Court determined that, even under the modified categorical approach, the judicially noticeable documents were not sufficient to establish whether the defendant – who, in the plea colloquy, pled no contest to what the court described as “unlawful driving or taking of a vehicle in violation of Vehicle Code Section 10851(a)” – was convicted as a principal or as an accessory after the fact.  Thus, the government could not meet its burden to establish the conviction qualified as an aggravated felony.  

For those interested in a summary on how to determine divisibility post-Mathis -- and thus whether the modified categorical approach applies -- I suggest reading the concurrence.  

4/5/17 - En Banc Court decides standard of review for Guidelines application

The long awaiting, at least by us appellate people, en banc decision is in.  

In United States v. Gasca-Ruiz, --- F.3d ---, Nos. 14-50342, 14-50343 (9th Cir. 2017) (en banc), the Court resolved an intra-circuit conflict over the standard of review that applies on appellate review of a district court’s application of the Guidelines to the facts of a given case.

The Court separated the Guidelines analysis into three components: 

First, the district court must identify the correct legal standard, a task that typically entails selecting and properly interpreting the right Guidelines provision. Second, the court must find the relevant historical facts, meaning the facts that answer primarily “what happened” types of questions (who, what, when, where, why, etc.). And third, the court must apply the appropriate guideline to the facts of the case—that is, decide whether the set of historical facts as found satisfies the governing legal standard.

As to the first and second components, "Our cases uniformly hold that we review the district court’s identification of the correct legal standard de novo and the district court’s factual findings for clear error."   Of note, the first component (identification of the correct legal rule) includes not only identifying the correct Guidelines provision, but also any generalized rules of application such as a district court deciding "the Guidelines’ vulnerable victim enhancement applies regardless of whether the defendant specifically targeted the victims because they were vulnerable."

As to the third component (the true subject of the opinion), the Court held, as a general rule, the district court’s application of the Sentencing Guidelines to the facts of a given case should be reviewed for abuse of discretion.  But there is at least one exception.  The district court's decision as to whether a defendant’s prior conviction is for a “crime of violence,” as required under some provisions of the Guidelines, remains subject to de novo review.

4/3/17: SCOTUS decides courts can consider 924(c) mand. mins. in sentencing for the underlying offense & a 9th Cir. restitution case

In Dean v. United States, 581 U.S. ---(2017), the unanimous Court decided that, in sentencing a defendant who has been convicted under 18 U.S.C. § 924(c), the district court can consider the mandatory minimum for the 924(c) in determining the appropriate sentence for the underlying predicate offense.

Section 924(c) criminalizes using or carrying a firearm during and in relation to a crime of violence or drug trafficking crime, or possessing a firearm in furtherance of such an underlying crime. It also mandates a distinct penalty, one that must be imposed “in addition to the punishment provided for [the predicate] crime of violence or drug trafficking crime.” §924(c)(1)(A) (emphasis added). A first-time offender under §924(c) receives a five-year mandatory minimum. A “second or subsequent conviction” under §924(c) carries an additional 25-year mandatory minimum. §§924(c)(1)(A)(i),(C)(i).

The Court determined, “[n]othing in §924(c) restricts the authority conferred on sentencing courts by §3553(a) and the related provisions to consider a sentence imposed under §924(c).”

It further explained: “The Government speaks of Congress’s intent to prevent district courts from bottoming out sentences for predicate §924(c) offenses whenever they think a mandatory minimum under §924(c) is already punishment enough. But no such intent finds expression in the language of §924(c). That language simply requires any mandatory minimum under §924(c) to be imposed “in addition to” the sentence for the predicate offense, and to run consecutively to that sentence. Nothing in those requirements prevents a sentencing court from considering a mandatory minimum under §924(c) when calculating an appropriate sentence for the predicate offense.”

Moving on.

In United States v. Blackwell, --- F.3d---, Case No. 16-10287 (9th Cir. 2017), the Court held that, even for those ordered to pay restitution before enactment of the “Mandatory Victims Restitution Act of 1996,” the time limits in that Act apply.  Thus, “the liability to pay a fine or restitution shall terminate the later of 20 years from the entry of judgment or 20 years after the release from imprisonment of the defendant.”