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.

6/19/17: Ninth affirms warrantless, suspicionless searches in two contexts

In United States v. Cervantes, --- F.3d ---, No. 15-50459 (9th Cir. 2017), the defendant appealed from his conviction and sentence for unlawfully possessing counterfeit currency and images of counterfeit currency, in violation of 18 U.S.C. §§ 472 and 474. 

He argued the police who found the currency violated his Fourth Amendment rights by conducting a warrantless, suspicionless search of his hotel room.  That search was conducted pursuant to a condition of his mandatory supervision, which the defendant was serving for the final year of his three-year California county jail sentence.

In rejecting the defendant's argument (and affirming the denial of his suppression motion), the Court determined that, for Fourth Amendment purposes, mandatory supervision is more akin to parole than probation, and that the search was authorized under the state-court imposed search condition.

The defendant also challenged the district court's subsequent imposition of a warrantless, suspicionless search condition as part of his federal supervised release. The Ninth affirmed the condition, explaining, [a]lthough warrantless, suspicionless search conditions of this sort should not be routinely imposed, they are not categorically forbidden."  It determined the defendant's lengthy criminal history "justified the district court’s belief that [he] posed an exceptionally high risk of re-offending during his term of supervised release, and that subjecting him to suspicionless searches would be necessary to mitigate that risk."

6/16/17: medical marijuana case

In United States v. Kleiman, --- F.3d ---, No. 14-50585 (9th Cir. 2017), the Court rejected the defendant's myriad arguments, and affirmed his convictions for for conspiracy to distribute and possess marijuana, distribution of marijuana, maintaining a drug-involved premises, and conspiracy to commit money laundering.  The Court also affirmed his 211-month sentence. 

This case started as a California prosecution of defendants who ran several marijuana collectives in L.A.  After the case was dismissed in state court, the feds picked up ball.  One defendant went to trial.  It did not end well.  

On appeal, he challenged the prosecution, arguing the congressional prohibition on using federal funds to prosecute state  medical marijuana operations should apply to his case. 

Although the Court agreed the prohibition applied to the case, it did not help the defendant, because it only prohibited the expenditure of DOJ funds in connection with a specific charge involving conduct that is fully compliant with state laws regarding medical marijuana.  Here, not all the charges qualified.  And it did not require a court to vacate convictions that were obtained before the rider took effect (the circumstance here). 

Of note, there is a relatively helpful discussion on jury instructions after a defendant makes a nullification argument.  The Court held that the district court erred by instructing the jury that “[t]here is no such thing as valid jury nullification,” and that it “would violate [its] oath and the law if [it] willfully brought a verdict contrary to the law given to [it] in this case.” But the error was harmless.  

There are other issues too.  If you have a medical marijuana case, this decision is a must read.

6/15/17: Interesting 922 case

In United States v. Hernandez, --- F.3d ---, No. 14-50214, the Court reversed the defendant's conviction for transportation of firearms into his state of residence in violation of 18 U.S.C. § 922(a)(3), and remanded for a new trial. 

The case is all about the statute's willfulness requirement.  The defendant argued for a heightened willfulness requirement under which the government would have to prove he knew of the specific legal duty he violated.  

The Ninth rejected this argument, holding "the government was required to show that [the defendant] knew his transportation of firearms into California was somehow unlawful, even if he did not know of the specific legal duty, or the particular law, that made it unlawful."

Nevertheless, the conviction could not stand because the district court gave an unduly broad willfulness instruction that, combined with 404(b) evidence, "could have been misunderstood by the jury to permit conviction even if Hernandez intended to commit some later crime."

The Court explained: "What is critical, however, is the distinction between proof of the intent to commit the other uncharged crimes and proof of the intent to commit the charged crime: evidence tending to show intent to commit other crimes may be circumstantial evidence of intent to commit the charged crime, but it is not a substitute for it."

6/12/17: Great Fourth Amendment prolonged detention case

In United States v. Gorman, --- F.3d ---, No. 15-16600 (9th Cir. 2017) -- a civil forfeiture case -- the Ninth Circuit affirmed the district court’s order granting claimant’s motion to suppress evidence seized pursuant to a traffic stop and held that the search of claimant’s vehicle following coordinated traffic stops violated the Constitution.

An officer stopped Mr. Gorman, who was driving his motorhome, for a traffic violation. After a few initial questions, the officer became suspicious Mr. Gorman might be transporting drug money. The officer did not have a drug dog available and could not come up with enough for probable cause, so he eventually let Mr. Gorman go.  The officer then called another Sheriff's office, and gave them information about Mr. Gorman.  Another officer then again stopped Mr. Gorman, this time with a drug dog.  The dog altered and the officer found money, which the government went after in a civil forfeiture proceeding. 

This case has great language on both the prolonged detention and multiple traffic stops issues.  The Court held, the "first roadside detention was unreasonably prolonged in violation of the Fourth Amendment. The dog sniff and the search of Gorman’s vehicle, in turn, followed directly in an unbroken causal chain of events from that constitutional violation. As a result, the seized currency is the 'fruit of the poisonous tree' and was properly suppressed under the exclusionary rule."

The discussion of prolonged detentionsis especially helpful:

The Supreme Court has made clear that traffic stops can last only as long as is reasonably necessary to carry out the “mission” of the stop, unless police have an independent reason to detain the motorist longer. The “mission” of a stop includes “determining whether to issue a traffic ticket” and “checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance.” A stop that is unreasonably prolonged beyond the time needed to perform these tasks ordinarily violates the Constitution. 

This is so because the “[t]emporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a ‘seizure’ of ‘persons’ within the meaning of [the Fourth Amendment].” The observation of a traffic infraction provides “[a]uthority for the seizure” of the driver only until the “tasks tied to the traffic infraction are – or reasonably should have been – completed.” Thus, “[a] seizure justified only by a policeobserved traffic violation . . . become[s] unlawful if it is prolonged beyond the time reasonably required to complete” the stop’s mission. 

The Supreme Court has indicated that within “the time reasonably required to complete” the stop’s mission, the Fourth Amendment may tolerate investigations that are unrelated to the purpose of the stop and that fall outside the scope of that mission. Id. at 1615. The Court is clear, however, that these “unrelated investigations” are impermissible if they “lengthen the roadside detention.” Police simply may not perform unrelated investigations that prolong a stop unless they have “independent reasonable suspicion justifying [the] prolongation.” 

Non-routine record checks and dog sniffs are paradigm examples of “unrelated investigations” that may not be performed if they prolong a roadside detention absent independent reasonable suspicion. These inquiries “[l]ack[] the same close connection to roadway safety as the ordinary inquiries.” We have held that prolonging a traffic stop to perform an ex-felon registration check or a dog sniff is unlawful because these tasks are “aimed at detecting evidence of ordinary criminal wrongdoing” and are not “ordinary inquir[ies] incident to the traffic stop.” “[T]he Government’s endeavor to detect crime in general or drug trafficking in particular . . . cannot justify prolonging an ordinary traffic stop . . . .”  “Such on scene investigation into other crimes detours from an officer’s traffic mission.”

6/12/17: Good case about right to present a defense in the closing-argument context.

In United States v. Brown, --- F.3d ---,No. 15-30148 (9th Cir. 2017), a divided panel reversed the client’s conviction for conspiracy to advertise child pornography under 18 U.S.C. §§ 2251(d) and (e).

The defendant sought to argue in closing that the government failed to prove the “notice” or “advertisement” element, because the images were posted on a private, pass-word protected internet bulletin board (Dark Moon).

The district court precluded the argument, essentially finding that a posting on the closed bulletin board was sufficient to constitute an advertisement as a matter of law.

The Ninth Circuit reversed.  It distinguished prior cases that held a posting was legally sufficient to meet the government’s burden, explaining: “There is wide gulf between saying that evidence is sufficient to convict, and saying that such evidence is always sufficient as a matter of law to convict.”

Thus, "[b]y refusing to allow Brown to present his defense in closing argument based on the closed nature of the Dark Moon bulletin board, the district court violated [Brown’s] fundamental right to assistance of counsel and right to present a defense, and it relieved the prosecution of its burden to prove its case beyond a reasonable doubt. [A] deficient closing argument [lessens] the Government’s burden of persuading the jury[,] [and] cause[s] the breakdown of our adversarial system. Since preventing a defendant from arguing a legitimate defense theory constitutes structural error, we must reverse Brown’s conviction accordingly."

6/9/17: Statutes prohibiting illegal importation of weapons apply extraterritorially

In United States v. Ubaldo, --- F.3d ---, No. 14-50093 (9th Cir. 2017), the Court rejected a variety of defense arguments and affirmed the defendants' convictions.  

The case arose from a sting operation in which FBI agents purchased weapons in the Philippines and transported them back to the U.S. 

The opinion covers a lot of ground, none of it good for the defense.  Of note:

• The Court held that the weapons importation statutes, §§ 922(l) and 2778(b)(2) apply extraterritorially.

• Even though the FBI agents did the shipping and the defendants were not the but-for cause of the shipping, the Court found the evidence sufficient to support the convictions under a broad aiding and abetting theory. 

There are also  rulings on Franks, Rule 16, 404(b), destruction of evidence, and jury instructions.  

6/8/17: En banc sentencing decision

In United States v. Simon, --- F.3d ---,No. 15-10203 (9th Cir. 2017) (en banc), the unanimous en banc Court joined the other Circuits in holding that the proper Guidelines provision for conspiracy to commit Hobbs Act robbery is U.S.S.G. § 2X1.1 (the general inchoate crime provision), not 2B1.3 (which covers robbery).

The main difference is that, under 2X1.1, the defendant can properly receive an enhanced sentence for conduct that he contemplated and intended, but did not carry out.  While, under 2B1.3, intended but non-completed conduct cannot serve as the basis for an enhancement.

The opinion addresses when to use 2X1.1 rather than another specific provision.

Section 2X1.1 generally covers inchoate offenses like attempt, solicitation, and conspiracy. But it does not apply if the “attempt, solicitation, or conspiracy is expressly covered by another offense guideline section.”

Under prior Ninth Circuit precedent, to determine when another Guidelines section “expressly” covers an inchoate offense, the Court looked to the underlying criminal offense.  If the substantive statute included the inchoate offense, then the sentencing court would read the substantive Guideline to cover sentencing for the inchoate offense.

The en banc Court overruled that prior precedent.  It held, “a Guideline other than § 2X1.1 ‘expressly cover[s]’ an inchoate offense only if the Guidelines themselves so indicate.”

When a sentencing court must determine whether another Guidelines section “expressly cover[s]” an inchoate offense, a sentencing court should begin with Application Note 1 to § 2X1.1, but also may look to the title and content of other Guidelines provisions, or other relevant intra-Guidelines context. Sentencing courts should not, however, rely exclusively on the underlying substantive offense in the United States Code, because statutory language sheds no light on the question of whether a Guidelines section expressly covers the offense, for purposes of § 2X1.1(c).

6/6/17: Restitution, the inextinguishable obligation

In United States v. Hankins, --- F.3d ---, No. 15-30345 (9th Cir. 2017), the Court considered whether a defendant may discharge a restitution judgment based on a private settlement with the victim.

"The answer is no—restitution is a criminal sentence that cannot be extinguished by a victim’s disclaimer of benefits."

The Court also determined that "a district court may redirect restitution payments to the federal Crime Victims Fund, 42 U.S.C. § 10601 et seq., (“the Fund”), when a victim later disclaims restitution without making a direct assignment to the Fund . . . . the statute provides leeway for the court to fashion this practical solution."

6/1/17: Good case on the administrative search doctrine

In United States v. Orozco, --- F.3d ---, No. 15-10385 (9th Cir. 2017), the Court considered "whether [a pretextual] stop was justified under the administrative search doctrine, which permits stops and searches initiated in furtherance of a valid administrative scheme to be conducted in the absence of reasonable suspicion or probable cause."  The Court concluded it was not. 

In this case, Nevada Highway Patrol troopers stopped a tractor-trailer to investigate criminal activity.  Specifically, they had a tip that the driver might be transporting drugs.  After the stop, the driver eventually consented to a search.  The troopers found drugs. 

The district court denied the defendant's suppression motion.  The Ninth Circuit reversed. 

The Court did "not decide whether the Nevada troopers had reasonable suspicion for the stop, because the U.S. Attorney waived this argument by failing to address it in his answering brief."  Instead, it assumed "there was no reasonable suspicion."

The Court thus turned to whether the stop could be justified under Nevada's administrative inspection scheme for commercial vehicles.  The Court explained:

Because the programmatic purpose of the Nevada inspection scheme may be valid, a stop undertaken in furtherance of that purpose does not violate the Fourth Amendment, even if reasonable suspicion or probable cause is lacking. Nevertheless, it could hardly be that a suspicionless stop made for reasons unrelated to the programmatic purpose of the scheme is valid simply because it is undertaken by those charged with enforcing that scheme. Indeed, that is why, as we have shown, when the Supreme Court has upheld particular administrative or special needs programs, it has consistently observed that those programs, and the searches and seizures conducted pursuant to them, did not appear to be pretexts for obtaining evidence of criminal activity. Otherwise, a valid programmatic purpose, as in the present case, which confers “unbridled discretion [on] police officers,”  would become a license to undertake pretextual stops of commercial vehicles for evidence of criminal activity or any other impermissible reason, such as the race or nationality of the driver.

On the record before it, "[t]he objective evidence clearly establishes that the only reason for the stop was the officers’ belief that Orozco could possibly be hauling marijuana or methamphetamine in his tractor-trailer."  Thus, it was pretextual in violation of the Fourth Amendment.