11/29/17: Arizona robbery is a crime of violence under 4B1.2

In United States v. Molinar, --- F.3d ---, No. 15-10430 (9th Cir. 2017), a divided panel concluded that Arizona robbery (and armed robbery) is a match for generic robbery.  Thus, it is crime of violence under under section 4B1.2’s enumerated felonies clause.  The Court also determined that Arizona attempt is equivalent to generic attempt.

Of note, the Court held that its prior conclusion in United States v. Taylor, 529 F.3d 1232 (9th Cir. 2008) -- that Arizona armed robbery is a crime of violence section 4B1.2’s force clause -- is clearly irreconcilable with the Supreme Court’s decision in Johnson v. United States, 559 U.S. 133 (2010), and has therefore been effectively overruled.  But this does not help the defendant here.

11/27/17: Riley does not apply to parolees & a Clean Water Act case with lots of interesting issues including on double jeopardy.

In United States v. Johnson, --- F.3d ---, No. 16-10184 (9th Cir. 2017), the Court affirmed the defendant's conviction for felon in possession.

The defendant was on Cal. parole subject to a broad 4th waiver.  After his arrest, police searched his phone without a warrant, finding incriminating text messages. 

The Court affirmed the denial of the defendant's motion to suppress.  Distinguishing Riley and Lara, the Court held the warrantless search of the defendant’s cell phone was constitutionally reasonable, given his status as a parolee and his reduced expectation of privacy.

The Court also rejected the defendant's argument about prolonged seizure of his phone. 

Next, the Court considered whether the consent to search (given by the principal tenant) was valid. The Ninth considers five factors to assess whether consent was voluntary: (1) whether defendant was in custody; (2) whether the arresting officers have their guns drawn; (3) whether Miranda warnings have been given; (4) whether the defendant was told he has a right not to consent; and (5) whether defendant was told a search warrant could be obtained.

The Court affirmed the district court's finding of valid consent. But there is a helpful reminder: "The rule is that failing to object to police entry, when no request for permission to enter was made, does not constitute effective consent."

Other than the Fourth Amendment issues, the Court rejected the defendant's hearsay / Confrontation Clause argument.  It found the subject statement was testimonial, but not offered for its truth.

The Court also considered, and rejected, the defendant's argument about expert ballistic testimony.

Finally, on the government's cross appeal, the Court vacated the defendant's sentence, finding the district court erred in concluding his prior Robbery (PC 211) conviction did not qualify as a crime-of-violence, career-offender predicate.

Moving on.

In United States v. Robertson, --- F.3d ---, No. 16-30178 (9th Cir. 2017), the Court affirmed the defendant's convictions for violating the Clean Water Act (CWA).

Much of the appeal turned on whether the dumping at issue fell within the CWA.  That, in turn, required the Ninth to engage in a lengthy discussion of how to deal with fractured (split) Supreme Court opinions, and when intervening case law is clearly irreconcilable with prior precedent under Miller v. Gamie.

Additionally, the Court joined its sister Circuits in holding a criminal defendant cannot challenge the sufficiency of the evidence at a previous trial following conviction at a subsequent trial.  Thus, the Court rejected the defendant’s argument that the district court should have granted his motion to acquit after the jury deadlocked at his first trial.

There was also discussion, and rejection, of the defendant's challenges to the government's expert.

11/21/17: Federal custody and prosecutorial vindictiveness

In United States v. Brown, --- F.3d ---, No. 16-30143 (9th Cir. 2017), the Court held:

(1) when an inmate serving a federal sentence is transferred to a state institution under a writ of habeas corpus ad prosequendum, he or she remains in “the custody of the Attorney General” -- i.e., in federal custody.  Thus, in this case, the defendant could be federally prosecuted for attempted escape from the state institution.

(2) when the government first indicates it does not intend to bring charges, but then receives (unsolicited) a written confession, and thereafter files charges, this does not create a presumption of vindictiveness.

The case also has some interesting stuff for us appellate people. 

The Court reminds us that, like other jurisdictional challenges, "the merits of a vindictive prosecution claim are reviewable even after entry of an unconditional plea because the defendant is contending that “the very initiation of the proceedings against him” constitute a denial of the due process of law."

Also, there is a good fn explaining that, when no facts are at issue, "the question is purely legal."

11/3/17: 1326 & Batson decision

 In United States v. Hernandez-Quintania, --- F.3d ---, No. 16-50171 (9th Cir. 2017), the Court affirmed the defendant’s conviction for illegal reentry in violation of 8 U.S.C. § 1326. 

The defendant challenged the sufficiency of the evidence establishing that he did not obtain consent to reapply for admission prior to entering the United States.  The Court rejected the argument, holding that, under the statute’s plain language, the consent to reapply must come after the defendant’s most recent removal, regardless of whether he had prior permission to reapply.  

The Court found sufficient evidence that the defendant did not have such permission after his last removal.

The Court also rejected the defendant’s Batson claim, finding he failed to establish a prima facie case of a discriminatory purpose for the preemptory challenges at issue.  

This is a good reminder that, if you are going to make a Batson challenge, you better have something specific to say in support other than that the juror was a minority. 

11/2/17: Interesting obstruction of justice case

In United States v. Johnson, --- F.3d ---, No. 16-50018 (9th Cir. 2017), the Court vacated the defendant's obstruction-of-justice conviction under 18 U.S.C. § 1512(b)(3) for failing to include material information about the use of force upon an inmate in reports documenting the encounter with the inmate. 

Section 1512(b)(3) provides, in relevant part: 

Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to . . . . hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense . . . . shall be fined . . . or imprisoned not more than 20 years, or both. § 1512(b)(3). 

The Court held that, under Fowler v. United States, 563 U.S. 668 (2011), the government had to prove a “reasonable likelihood” that the omitted information would have reached federal officers.  

And, "[a]pplying the Fowler standard, we conclude that the Government failed to present sufficient evidence to show that there was a reasonable likelihood that the communication would reach a federal officer. The Government’s evidence established nothing 'more than [a] remote, outlandish, or simply hypothetical' possibility that Johnson’s reports could have reached a federal officer."