9/29/17: Good Miranda Habeas Case

In Rodriguez v. McDonald, --- F.3d ---, No. 12-56594 (9th Cir. 2017), the Court grants habeas relief in a case where "a boy who invoked his constitutional right to the assistance of counsel was denied this assistance, and then was badgered into confessing murder."

There is lots of good language about reinitiating after an invocation.  If you have a case where your client invoked before ultimately confessing, this decision is helpful.

9/26/17: Wide-ranging decision in attempted production of CP case

In United States v. Jayavarman, --- F.3d ---, No. 16-30082 (9th Cir. 2017), the Court issued a lengthy opinion addressing numerous issues in a case where the defendant was convicted of attempting to produce and transport into the United States a visual depiction of a minor engaged in sexually explicit conduct in violation of 18 U.S.C. § 2251(e). 

The key fact was that the defendant thought the person he filmed was a minor, but she was not.  The Court concluded this did not matter:  "We [] hold that a defendant may be convicted of an attempt to violate § 2251(c) if he believes that the victim is a minor, even if the victim turns out to be an adult."

The Court also rejected the defendant's arguments based on the foreign commerce clause, the First Amendment, constructive amendment of the indictment, sufficiency of the evidence, Rule 403,  and failure to provide an interpreter. 

Of note, the Court accepted the government's concession to vacate that the defendant's other conviction for  attempt to aid and abet travel with intent to engage in illicit sexual conduct in violation of 18 U.S.C. § 2243(b).  The Court noted the statute does not cover an attempt to aid and abet:

The substantive statute does not contain an aiding and abetting provision, and the general aiding and abetting statute does not contain an attempt provision. [Thus,] a defendant could be convicted of aiding and abetting an attempt to violate § 2423(b), but he cannot be convicted of attempting to aid and abet a violation of § 2423(b) 

 Because the Court vacate one count of conviction, it remanded for resentencing: "remand of all sentences is often warranted, even when only one conviction is vacated." 

9/15/17: Good 2L1.2 Sentencing Decision

In United States v. Hernandez Martinez, --- F.3d ---, No. 17-50026 (9th Cir. 2017), the Court gives us a favorable ruling on the amended version of 2L1.2.

The provision at issue was 2L1.2(b)(2)(B): If, before the defendant was ordered deported or ordered removed from the United States for the first time, the defendant sustained— . . . (B) a conviction for a felony offense (other than an illegal reentry offense) for which the sentence imposed was two years or more, increase by 8 levels[.]"

The question was "whether the phrase 'sentenced imposed' includes terms of imprisonment that were imposed after the defendant’s first deportation order when assessing the defendant’s eligibility for the § 2L1.2(b)(2)(B) enhancement."  In other words, what if the defendant: (1) sustained a conviction and received less than 2 years, (2) was then deported, (3) came back and received a revocation sentence above 2 years?  Would he or she get the 8-level enhancement?  

The answer is no: "a qualifying sentence must be imposed before the defendant’s first order of deportation or removal."

9/13/17: Hazardous waste case

The moral of the story in United States v. Spatig, --- F.3d ---, No. 15-30322 (9th Cir. 2017), is don't store lots of paint in your yard.  

The defendant was charged with, and convicted of, violating § 6928(d)(2)(A), which prohibits, “knowingly treat[ing], stor[ing], or dispos[ing] of any hazardous waste . . . without a permit.” 

In affirming the defendant's conviction, the Court held the statute defines a crime of general intent. Thus, the district court properly excluded the defendant's diminished capacity evidence.  (Diminished capacity generally cannot be raised as a defense to a general intent crime).  

The Court also affirmed a four-level enhancement under U.S.S.G. § 2Q1.2(b)(3) for cleanup that required a substantial expenditure, due to the $498,562 cost.  It did not "not purport to establish a bright-line rule between substantial and insubstantial expenditures, [but] note[d] that our sister circuits have determined that expenditures of $200,000 or less count as 'substantial.'"

9/12/17: Good case on sealing records of cooperation

In United States v. Doe, --- F.3d ---, No. 15-50259 (9th Cir. 2017), the Ninth Circuit reversed the district court’s order denying the defendant’s motion to seal all documents relating to, or disclosing the existence of, the government’s motion to reduce the defendant’s sentence for substantial assistance in the prosecution of other offenders.

The opinion concludes that disclosing such information creates a genuine risk of harm to the cooperator and can undermine ongoing investigations.  

However, the opinion also assumes without deciding that the public has a qualified First Amendment right of access to court documents and proceedings related to cooperation (which was rebutted in this case).  

The upshot is that district courts must decide motions to seal or redact on a case-by-case basis. Helpfully, the opinion contains substantial ammunition for showing that (1) sealing serves a compelling interest; (2) there is a substantial probability that, in the absence of sealing, this compelling interest would be harmed; and (3) there are no alternatives to sealing that would adequately protect the compelling interest.”

We should use this decision to make that showing. 

 

 

9/11/17: Case on alleged improper contact with jurors

In United States v. McChesney, --- F.3d ---, No. 16-30052 (9th Cir. 2017), the Court affirmed the district court's denial of the defendant’s motion for a new trial on the basis of improper contact with the jury.

The defendant alleged his ex-girlfriend made derogatory comments about him to the jurors at his trial.  The district court sent a questionnaire to the jurors, and none indicated he or she heard the comments.  The court also held a hearing -- at which several witnesses testified about the alleged comments -- but found no credible evidence the comments were made. 

The Ninth Circuit found no errors in these procedures, but noted that live juror testimony might be necessary in other cases.  

The Court also rejected the defendant's claim that his exclusion from telephonic conferences with the district court violated his right to be present at all critical stages. 

Finally, the Court rejected the defendant's claim about destruction of courthouse videos that could have shown the alleged juror interactions.  The Court found the claim forfeited and, in any event, the defendant did not allege bad faith.  

9/8/17: Wide-ranging opinion in Mexican Mafia case

In United States v. Barragan, --- F.3d ---, No. 13-50516 (9th Cir. 2017), the Court issued a wide-ranging opinion affirming the defendants' convictions and most of their sentences in this RICO conspiracy case.

Given the number of issues, the Court treats most of them in summary fashion.  There are, however, a few things worth noting.

On the issue of agents providing testimony about coded language, the Court determined: "the line between lay and expert opinion depends on the basis of the opinion, not its subject matter."  This sets up the troubling possibility that the same testimony would be expert testimony in one case, but lay in another.

As to prosecutorial misconduct in closing, the Court determined, "[t]he prosecutor’s remarks crossed the line."  "[T]he prosecutor emphasized the violent nature of the defendants’ crimes and repeatedly urged the jury to say 'no more.'"  But the Court found harmless error.

It did, however, include the following: "We recognize—and lament—that in the absence of a reversal, some prosecutors may infer from today’s opinion that whatever works is permissible. That would be the wrong conclusion; we today only conclude that the prosecutor’s improper argument was limited in nature, addressed by the district court, and did not have a probable effect on the jury’s verdict in light of the entire record. But forewarned is forearmed. On a different record, we will not hesitate to reverse or even suggest sanctions."

The Court also found that a conviction under Calif. Penal Code § 211—which involves either generic robbery or generic extortion—was categorically a “crime of violence” for purpose of the career offender guideline.

There are myriad other issues discussed, including about wire taps.  I suggest at least skimming the Ninth Circuit summary.

9/7/17: Good case on sentencing reductions and a compelling dissent by Judge Kozinski

In United States v. D.M., --- F.3d ---, No. 16-50243 (9th Cir. 2017), reversing the decision below, the Court held the defendant was eligible for a sentence reduction under Guidelines Amendment 782, which lowered the recommended sentence for drug offenses.

First, the Court determined the appeal was not moot.  Although the defendant had been released from custody, the district court could still reduce his term of supervised release. 

Second, under U.S.S.G. § 1B1.10(b)(2)(B), the district court could consider a number of departures when calculating a sentencing reduction where the defendant has previously provided substantial assistance.  The court was not limited to consideration only of the departure attributable to substantial assistance. 

In other words, if at the original sentencing, the defendant received a departure for substantial assistance, as well as other departures, the district court could consider all of them as part of any reduction: "a court [can], when implementing USSG § 1B1.10(b)(2)(B), [] consider departures that resulted in the previous sentence that were not directly attributable to substantial assistance."  This is distinguished from sentencing reductions, when there was no substantial assistance.  

In United States v. Faagai, --- F.3d ---, No. 15-10621 (9th Cir. 2017), the majority affirmed the district court's denial of a suppression motion.  The majority agreed there was probable cause to believe that contraband would be found in the defendant's truck, and thus the search was permissible under the automobile exception.  Part of this purported probable cause came from calls where the defendant and his alleged drug supplier discussed going to Costco. 

Here is the end of Judge Kozinski's dissent:

The majority strings together a sequence of events like beads on a strand, but doesn’t explain how any of them provide probable cause that Faagai was carrying drugs in his car when he was stopped. Nor do my colleagues reckon with a long line of our cases holding that police suspicions lacking objective evidence are insufficient to establish probable cause. Instead, they fall back again and again on their dubious theory of code words, treating words like “food” and “tools” as nefarious. There’s a vicious circularity to this logic: With the luxury of hindsight, anything at all that Faagai and Penitani might’ve discussed can simply be labeled “code for drugs.” 

Here’s what this case boils down to: Officers had a hunch that a drug transaction was going down. They saw nothing obviously suspicious, but got tired of waiting, watching and wiretapping. They then jumped the gun by executing a warrantless search. Until today, this was not enough to support probable cause, but going forward it will be. This is a green light for the police to search anyone’s property based on what officers subjectively believe—or claim to believe—about someone’s everyday conduct. That puts all of us at risk. Accordingly, I dissent, and I’m off to Costco to buy some food.

9/6/17: case about drug quantity finding in the conspiracy context.

In United States v. Torres, --- F.3d ---, No. 13-50088 (9th Cir. 2017), the Court reviews the mess of Ninth Circuit precedent on drug quantity findings in the conspiracy context.  

Looks like this issue is heading for en banc review.  But for now, the panel found the district court’s jury instruction for determining drug quantities under 21 U.S.C. § 841(b) -- which required the jury to determine drug quantities that were reasonably foreseeable to each defendant in connection with his criminal activity -- was not plain error, even though the jury was not required to find that the drug quantities related to violations were also part of a jointly undertaken criminal activity.

There is a lot of back and forth between the majority and special concurrence on this issue.  If you have a drug conspiracy case going to trial, read this opinion carefully so you can request proper instructions. 

In the 851 enhancement context, the panel also concluded that, even though the defendants' state-court convictions overlapped temporally with their convictions in this case, the state convictions could be considered “prior” convictions that trigger sentencing enhancements under § 841(b).