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!