12/29/17: case on 1325 misdemeanors

In United States v. Aldana, --- F.3d---, No. 16-50372 (9th Cir. 2017), the Court affirmed the defendants' misdemeanor convictions under  8 U.S.C. § 1325(a)(1) for attempting to enter the United States “at any time or place other than as designated by immigration officers.”

The Court rejected the defendants' argument that, because the applicable regulations designate entire geographic regions as ports of entry -- rather than just the actual immigration facilities -- and because they entered within that such a region, there was insufficient evidence they had violated the statute.

Instead, the Court held that, for purposes of the statute, a place “designated by immigration officers” refers to a specific immigration facility, not an entire geographic area.

12/27/17: A memorandum worth reading

In United States v. Young, No. 15-50158 (9th Cir. 2017), the Court vacated the defendant's convictions for conspiracy to violate the Racketeer Influenced and Corrupt Practices Act (RICO), conspiratorial and substantive murder under the Violent Crimes in Aid of Racketeering (VICAR) statute, and use of a firearm in furtherance of a crime of violence.

It is a memorandum disposition worth reading.  The Court found the district court erred in admitting through a detective hearsay statements from an alleged gang member implicating the defendant. 

Further, the district court erred in failing to suppress the defendant's inculpatory statements resulting from a deliberate two-step interrogation: "Detectives interrogated Young at the police station for at least twenty minutes without providing any Miranda warnings. Only after Young confessed that he drove the vehicle linked to the shooting (his mother’s car) did the detectives finally give him Miranda warnings." 

On this issue, the Ninth Circuit rejected "the government’s contention that the detectives delayed giving the Miranda warnings so that they could build rapport with Young and get 'biographical' information."

The Court also found the district court plainly erred in failing to instruct the jury accurately as to the culpability required for a criminal conviction under RICO.

The district court instructed the jury that the government must prove that Young “conspired and agreed” that he “or a co-conspirator, would conduct or participate, either directly or indirectly, the conduct of the affairs of the enterprise through a pattern of racketeering activity.” The district court’s instructions obscure the elements of the crime because they do not explain what the defendant, not a co-conspirator, needed to agree to do in order to be found criminally culpable as a conspirator. A defendant is guilty of conspiracy to violate RICO only if the evidence shows that the defendant knowingly and personally “agreed to facilitate a scheme which includes the operation or management of a RICO enterprise.” 

Finally, the Court touched on an important issue to monitor, the impact of Burrage v. United States, 134 S. Ct. 881 (2014) (insisting on but-for causality), on “substantial purpose” or "dual purpose" instructions.

Congratulations to Ben Coleman on another great victory.  And congratulations to Mark Windsor for his tenacious advocacy below. 

12/19/17: Important victory in murder case

Congrats to Davina Chen on the important victory in United States v. Wells, --- F.3d ---, No. 14-30146 (9th Cir. 2017). 

This was a multiple murder case out of Alaska.

You know an opinion is likely coming out for the defense when it begins - "As Justice Louis D. Brandeis warned many years ago: 'The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.'"

The opinion is very long, covering myriad topics. 

Of particular note, the Court excoriated the government for interfering with appointment of counsel under the CJA:

The administration of the CJA is a judicial function for which the Judicial Conference of the United States has approved official guidelines. The prosecution is typically precluded from participating in the determination of a defendant’s eligibility for CJA-appointed counsel. 

The Government’s exclusion from the administration of the CJA is a significant contributing factor to the fairness of our system and the CJA’s role in redressing the imbalance of power between an indigent defendant and the Government. “A contrary position might well result in a system wherein the outcome of criminal trials would be determined by the poverty of the accused rather than the integrity of the factfinding process.” 

The Court warns: "in the future, the Government should tend to its own knitting."

There is also a detailed discussion (ultimately outcome determinative for the defense) on the use of experts to provide criminal profile testimony as substantive evidence of guilt. This should be very helpful going forward.  For instance, the Court rejected the argument that a defendant's opening statement could open the door to such profile testimony.

The Court further explained, "[t]hose jurisdictions that have considered profiles of battering parents, pedophiles, rapists, and drug couriers unanimously agree that the prosecution may not offer such evidence in its case-in-chief as substantive evidence of guilt."

The Court also gives us a good reminder that, "[w]here the district court fails to engage in necessary Rule 403 balancing, we [] review de novo."  And, "[w]e begin with a presumption of prejudice, in reviewing the effects of this erroneous admission."

Additionally, the court has a lengthy analysis of other act evidence under Rule 404, which is worth reading.

There is lots more in the opinion.  But you get the idea.

12/13/17: Categorical case worth noting

In United States v. Werle, --- F.3d ---, No. 16-30181 (9th Cir. 2017), the Court held that, because the defendant’s prior convictions for felony harassment under Washington Revised Code § 9A.46.020(2)(b)(ii) necessarily includes a “threatened use of physical force against the person of another,” it is categorically a crime of violence under § 2K2.1(a)(1) [which uses the same definition as the career offender provision, 4B1.2].

At first blush, the opinion is unremarkable. But then it turns to the discussion of mens rea.

The defendant argued that his prior conviction was not a categorical crime of violence because only negligence was required as to the element of placing the victim “in reasonable fear that the threat to kill would be carried out.”

The Court agreed that was true under Washington law, and agreed (as it must) "that a negligent application of force is insufficient to constitute a 'use of force' and therefore cannot serve as the basis for a crime of violence."

Nevertheless, if found a categorical match.  How, you ask?

[B]ecause § 4B1.2(a)(1) only requires that the state crime has as “an element . . . the threatened use of physical force.” (emphasis added). It is clear that the first element of a conviction under § 9A.46.020(2)(b)(ii)—a knowing threat of intent to kill someone—requires a sufficient mens rea, and so that element by itself may render the conviction a crime of violence. That other elements of the statute may be satisfied with a lower mens rea adds nothing to our inquiry[.]

In other words, so long as just one element of the prior requires a sufficient mens rea, it does not matter that the others require less.

Although this seems (to me) antithetical to the categorical approach, it is now the law.

The Court also rejected the defendant's argument that a threatened use of physical force must convey some prospect that the force could immediately occur.  Thus, even indeterminate threats to kill in the distant future can constitute crimes of violence.

12/12/17: Mathis does not establish a new rule of constitutional law & Federal carjacking is a crime of violence for purposes of 924(c)

In Arazola-Galea v. United States, --- F.3d ---, No. 16-73574 (9th Cir. 2017), the Court held that Mathis v. United States, 136 S. Ct. 2243 (2016), which clarified application of the categorical analysis, did not establish a new rule of constitutional law. 

Thus, the Court declined to give Mathis retroactive application, and on that basis denied the petitioner's request to file a second or successive habeas petition.

In United States v. Gutierrez, --- F.3d ---, No. 16-35583 (9th Cir. 2017), the Court held that federal carjacking (18 U.S.C. 2119), constitutes a crime of violence under the force clause of 18 U.S.C. 924. 

Although carjacking can be committed by intimidation, the Court determined, "[t]o be guilty of carjacking 'by intimidation,' the defendant must take a motor vehicle through conduct that would put an ordinary, reasonable person in fear of bodily harm, which necessarily entails the threatened use of violent physical force."

Thus, carjacking is a predicate offense for brandishing a firearm during a "crime of violence," in violation of 18 U.S.C. § 924(c)(1)(A)(ii). 

12/7/17: Huge categorical victory today

In United States v. Valdivia-Flores, --- F.3d ---, No. 15-50384 (9th Cir. 2017), the Ninth Circuit vacates the defendant's 1326 conviction finding his Washington’s drug trafficking conviction, Wash. Rev. Code § 69.50.401, was not and cannot be an aggravated felony.  In other words, the conviction could not support his deportation.  But there is much more, because the analysis -- which focuses on Washington's overbroad aiding and abetting law -- applies to all Washington crimes, and precludes reliance on the modified categorical approach.  Thus, even if the client admits possession of heroin for sale (as in this case) it does not matter.  

As explained by Davina Chen in more detail below, and bemoaned by the Court, the upshot of the this decision is that “no Washington state conviction can serve as an aggravated felony at all.”  This almost certainly applies for all other federal sentencing predicates, such as ACCA and career offender.  It also likely applies other state's convictions that have the same aiding and abetting law as Washington (not California, sadly).

We have our own Trip Johnston to thank for this huge decision.

Here is Davina's excellent summary:

NO Washington conviction can serve as an aggfel (and by extension, perhaps, a federal sentencing predicate). This is because WA aiding and abetting liability is facially broader than federal aiding and abetting.  Any WA conviction could have been obtained via accomplice liability, because WA law does not require that accomplice liability be charged and it does not require the jury be unanimous.  Ergo . . .no WA convictions match federal analogues.

You will also want to be on the lookout for any prior convictions from: -Indiana-Iowa-Massachusetts-Nebraska-Oklahoma  

So, from the top. In Duenas-Alvarez, the Supreme Court noted that all jurisdictions have abolished the distinction between principal liability and aiding abetting.  So, convictions under state law for aiding and abetting can constitute generic offenses.  For example, in Duenas-Alvarez, aiding abetting a vehicle theft could be generic theft, so long as both the definition of theft and aiding and abetting matched.  

OK, so, since in all jurisdictions, one can be convicted under an aiding and abetting theory, in all cases, we get to argue that our client COULD have been convicted as an aider and abettor.  That is, even if my client is the only named participant in a case, his conviction could have been under an aiding and abetting theory. 

Next step, what does aiding and abetting require?  In federal court and in most jurisdictions, it requires, the defendant to have INTENDED to assist in the crime.  Mere knowledge that one’s conduct will actually assist in the crime is not enough.But in Washington, and the five other jurisdictions listed above, knowledge is enough. You don’t need to intend to assist.  In the example Trip gave at oral argument, if you are driving a taxi, and someone gets in the taxi to travel to a drug deal, the taxi driver may be assisting the drug deal with knowledge, but he doesn’t intend to assist a drug deal.  He doesn’t care.  Is he required to kick the fare out? Under Washington law, apparently he is, or he could face conviction for drug dealing. So, Washington aiding and abetting liability is overbroad because it permits conviction where federal/generic law would not. Since, any conviction could be obtained under this theory of liability, all WA convictions are overbroad.   

What if it’s clear that there was no other participant?  Doesn’t matter, according to Judges O’Scannlain and Marquez.  Since WA law does not require the jury to be unanimous as to whether the conviction is based on principal or aiding and abetting, the statute of conviction is not divisible, so you never get to use the modified categorical approach to determine that the conviction was not based on aiding and abetting. And to the extent that the D cannot show a WA case where the conduct was ACTUALLLY broader than generic aiding and abetting, Judges O’Scannlain and Marquez say it doesn’t matter, because Washington law is overbroad on its face. 

12/6/17: Expert testimony on the ultimate issue

In United States v. Diaz, --- F.3d ---, No. 15-50538 (9th Cir. 2017), the Court affirmed the defendant's conviction for violating 21 U.S.C. 841 based on his running a prescription mill clinic. 

The principal issue revolved around the government's expert physician's testimony that the prescriptions were written “outside the usual course of medical practice” and “without a legitimate purpose.”

The defense argued the testimony amounted to a legal conclusion in violation of Fed. R. Evid. 702 and 704.  The Ninth held otherwise.

We hold that if the terms used by an expert witness do not have a specialized meaning in law and do not  represent an attempt to instruct the jury on the law, or how to apply the law to the facts of the case, the testimony is not an impermissible legal conclusion. See FED. R. EVID. 702(a), 704(a). 

Here, expert testimony was needed to assist the jury. Dr. Chavez’s testimony was helpful because a lay jury would not have the requisite knowledge to evaluate whether the dosage, mix, and course of narcotics prescribed by Diaz were medically appropriate for the conditions being complained of by his patients. Dr. Chavez’s opinions were based on a review of the prescriptions for individual patients, and while he employed phrases that also appear in the elements of § 841(a)(1), such as “outside the usual course of medical practice” and “legitimate medical purpose,” these phrases were used in their ordinary, everyday sense and do not “have a separate, distinct and specialized” legal significance apart from common parlance, Dr. Chavez did not substitute his judgment for the jury’s; he provided a professional opinion about whether a course of conduct comported with the standard of care prevalent in the medical community.

Be wary of the prosecution trying to use this holding in other contexts.

12/4/17: Cal H&S 11351 is divisible as to its controlled substance requirement.

In United States v. Murillo-Alvarado, --- F.3d ---, No. 14-50354 (9th Cir. 2017), the Court held that Cal H&S 11351 is divisible as to its controlled substance requirement.

This was the expected result, because the Court had already reached the same conclusion as to section 11352 in United States v. Martinez-Lopez, 864 F.3d 1034 (9th Cir. 2017) (en banc). 

The Court also concluded the government met its burden under the modified approach.  The key here is that the conviction documents included a certified copy of the guilty plea form which contained a handwritten factual basis in which Murillo-Alvarado admitted that, on May 29, 2001, he “possessed cocaine to be used for purposes of sale.”

This admission to substance, along with the other conviction documents, satisfied the Court that the defendant's plea constituted a conviction for a federal predicate.