12/21/18: Another forfeiture case

This one is no easy read. 

In United States v. Valdez, --- F.3d ---, No. 17-10446 (9th Cir. 2018), the Court affirmed the district court's order that the defendant forfeit substitute property in the form of a money judgment.

The defendant pleaded guilty to attempted smuggling of ammunition from the United States into Mexico.  At the time of her arrest, however, the ammunition was long gone.  So, the government asked the district court for an order forfeiting substitute property, specifically money equal to the value of the ammunition.  The district court agreed.

The appeal focused on whether the court could order forfeiture of substitute property in these circumstance.  The Ninth Circuit concluded it could, but getting there involved a complicated analysis of a variety of forfeiture statutes. 

Here's the point:  The government can seek criminal forfeiture of substitute property when the defendant’s acts and omissions caused the unavailability of the original property subject to forfeiture.

12/20/18: Forfeiture case

In United States v. Hernandez-Escobar, --- F.3d ---, No. 17-50134 (9th Cir. 2018), the Court affirmed a forfeiture order.  The petitioner argued that money forfeited in connection with his son's drug conviction was actually his and thus not subject to criminal forfeiture.

The Court disagreed. It held, "the District Court did not need to determine whether Mr. Hernandez had actually given cash to [his son] Roberto, or how much. The answers to those questions have no bearing on the forfeitability of the cash that was found in Roberto’s bedroom and that the District Court concluded was drug proceeds."

The one silver lining is that the court agreed there is no tracing requirement.  In other words, a petitioner does not need to trace the exact bills given to a defendant in order to recover those funds:  "Mr. Hernandez argues, correctly, that a bailor need not trace the exact currency that was bailed. But we do not affirm because the bills were not traced. Rather, we affirm because the evidence as a whole supports the District Court’s finding that the forfeited money was, in fact, drug proceeds."

11/28/18: Case on destructive devices

In United States v. Kirkland, --- F.3d ---, No. 16-10514 (9th Cir. 2018), the Court affirmed the defendant's convictions for being a felon in possession of a destructive device in violation of 18 U.S.C. § 922(g)(1) and possessing an unregistered destructive device in violation of 26 U.S.C. § 5861(d).

The case involved the definition of destructive device in 921(a)(4)(C): "any combination of parts either designed or intended for use in converting any device into any destructive device described in subparagraph (A) or (B) and from which a destructive device may be readily assembled."

The defendant argued that, because his device was missing the batteries needed to convert it into a functioning bomb, he was not guilty as a matter of law. 

The Ninth Circuit disagreed.  It held that § 921(a)(4)(C) requires only that the defendant possess a combination of parts from which a functional device “may be readily assembled”; that the requirement does not categorically exclude situations in which the assembly process entails the acquisition and addition of a new part; and that the “readily assembled” element can still be met so long as the defendant could acquire the missing part quickly and easily, and so long as the defendant could incorporate the missing part quickly and easily.

Missing batteries was just such a situation, becuase they could be added easily.  The Court further made clear the issue was one of fact for the jury.  However, there was one exception: "the defendant possesses the explosive material necessary to construct an operable explosive weapon."  In other words, if it had been the explosive material missing -- rather than the batteries -- the defendant's conviction would have failed.

11/27/18: Good case on jury instructions

In United States v. Tydingco, --- F.3d ---, No. 17-10023 (9th Cir. 2018), the Court vacated the defendants' convictions for harboring an illegal alien and aiding and abetting the harboring, in violation of 8 U.S.C. § 1324(a)(1)(A)(iii).

The case arose from the defendants bringing a friend's child from China to attend school in the U.S. 

On appeal, the Court found the jury instructions erroneous in two respects. 

First, the instruction defining "harbor" was erroneous because it did not require the jury to find the defendants intended to violate the law.  On this point, the Court explained: "the jury instructions were legally deficient by not requiring the jury to find that Defendants intended to violate the law. The omitted instruction was not harmless beyond a reasonable doubt, because it went to the heart of Lili’s primary defense—that she did not understand the immigration laws and did not act with the intent to violate the law. Indeed, the government expressly concedes that, if the harboring instruction was erroneous, the error was not harmless."

Second, the Court held the district court plainly erred in instructing the jury that "reckless disregard" means "being aware of facts which, if considered and weighted in a reasonable manner, indicate a substantial and unjustifiable risk that the person harbored was in fact an alien and was in the United States unlawfully."    Instead, under controlling precedent, "reckless disregard requires that the defendant herself must be aware of facts from which an inference of risk could be drawn and the defendant must actually draw that inference."

As to prejudice, the Court explained, "Defendants bear the burden of showing prejudice, which requires some intermediate level of proof that the error affected the outcome at trial: more than a mere possibility, but less than a preponderance of the evidence."  The Court determined the defendants met their burden.  Further, the jury’s possible reliance on a legally invalid theory constitutes a miscarriage of justice which would seriously affect ‘the fairness, integrity or public reputation of judicial proceedings."  Thus, a new trial was warranted.

11/26/18: Multiplicity case

In United States v. Chilaca, --- F.3d ---, No. 17-10296 (9th Cir. 2018), the Court vacated the defendant's sentence on four counts of possessing child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B).

Joining the other Circuits to consider the issue, the Court held that, under § 2254(a)(4)(B), which makes it a crime to knowingly possess “1 or more” matters containing any visual depiction of child pornography, simultaneous possession of different matters containing offending images at a single time and place constitutes a single violation.  In other words, simultaneously possessing “1 or more” media or electronic storage devices that contain child pornography images is only one violation of § 2252(a)(4)(B), regardless of the number of images or separate media used to store the images.

Thus, the defendant's four convictions were multiplicitous in violation of the Double Jeopardy Clause.

The remedy was to vacate three of the counts and remand for resentencing on the remaining count.

11/18/19: Interesting case on grand jury subpoenas

In In Re Twelve Grand Jury Subpeonas, --- F.3d ---, No. 17-17213 (9th Cir. 2018), the Court affirmed the district court’s order holding an appellant in contempt for his failure to comply with the court’s order to respond to twelve grand jury subpoenas in his capacity as a records custodian.

The case involves the tension between the obligation for a corporate entity to comply with a subpoena and the Fifth Amendment privilege against self-incrimination.

The defendant argued that, because the companies were small, closely-held entities for which he was either the sole shareholder or sole employee, or was solely responsible for accounting and recordkeeping, he could invoke his Fifth Amendment privilege. The theory was that, because the jury would know the defendant provided the documents, it implicated the act of production doctrine.

The act of production doctrine recognizes “that the act of producing documents in response to a subpoena may have a compelled testimonial aspect,” in that the act “may implicitly communicate ‘statements of fact,’” such as “that the papers existed, were in [the producer’s] possession or control, and were authentic.”

Additionally, under the collective entity doctrine, individuals and sole proprietorships, which do not, as a legal matter, exist separately from the individuals who comprise them, there is a privilege against complying with subpoenas that implicate Fifth Amendment grounds.

The Court rejected the defendant's claims. It held there were no circumstances under which a records custodian could resist a subpoena for a collective entity’s records on Fifth Amendment grounds, and that the size of the entity, and the extent to which a jury would assume that the individual seeking to assert the privilege produced the documents, were not relevant.

11/2/18: Great confrontation clause case

In United States v. Carter, --- F.3d ---, No. 16-50271 (9th Cir. 2018), the Court held  that a defendant’s right to physically confront an adverse witness (whether child or adult) cannot be compromised by permitting the witness to testify by video (whether one-way or two-way) unless use of the remote video procedure is necessary and the reliability of the testimony is otherwise assured.

The issued centered on the district court's decision to allow a critical witness to testify remotely via two-way video because she was seven months pregnant and could not travel.  

The Court held this violated the defendant's confrontation rights, because there were other alternatives, such as a continuance or severing counts.  Further, the error was not harmless. 

There is lots of good language.  For instance:

• Not only does physical confrontation at trial serve as a symbol of fairness, but it also promotes reliability, for “[i]t is always more difficult to tell a lie about a person ‘to his face’ than ‘behind his back.’” Compelling “adverse witnesses at trial to testify in the accused’s presence” thus “enhances the accuracy of factfinding” at trial.  

•  a criminal defendant’s constitutional rights cannot be neglected merely to avoid “added expense or inconvenience.” 

Congrats to Ben Coleman for another fantastic win!

10/25/18: Interesting assault case

In United States v. Moreno Ornelas, --- F.3d ---, No.15-10510 (9th Cir. 2018), the Court affirmed the defendant’s convictions for assault on a federal officer (and related charges) but reversed his convictions for attempted robbery.

The opinion begins: "On a summer day in the Arizona desert, not far from our country’s southern border, United States Forest Service Officer Devin Linde (“Linde”) encountered Defendant-Appellant Jesus Eder Moreno Ornelas (“Moreno”). A struggle ensued. Afterwards, each man claimed that the other had forced him into a fight for his life. Moreno was convicted at trial of multiple federal crimes. We reverse his convictions for attempted robbery of Linde’s gun and vehicle because there was plain error in the jury instructions on those counts, but we otherwise affirm."

As to the reversal, a divided panel concluded the district court plainly erred in failing to instruct the jury on specific intent.  It explained, the federal robbery statute, 18 USC 2112, simply codified the common law crime.  And “Common law robbery was . . . a specific intent crime.”  Thus, given the well-settled elements of common law robbery as well as [the Supreme Court's] clear indication that § 2112 incorporates the common law, failing to instruct the jury on specific intent was an obvious omission.

As to the other counts of conviction, the Court rejected the defendant’s arguments:  "Moreno urges us to reverse all of his remaining convictions on the ground that the jury instructions given at trial failed to present resistance to excessive force as a defense, and that the instructions thus failed to cover his theory of the case. Second, Moreno challenges his convictions for assault on a federal officer under 18 U.S.C. § 111 and for use of a firearm during and in relation to a crime of violence (the assault) under 18 U.S.C. § 924(c), contending that the instructions improperly defined 'official duties.' Neither argument is persuasive.”

Finally, the Court found no error in the district court’s exclusion of the defendant’s expert based on his untimely expert notice, just days before trial.

As noted, this was a split decision with two dissents on different issues.  It is worth a read for any assault cases.

10/23/18: search warrants beyond the judge’s territorial authority

In United States v. Henderson, --- F.3d ---, No. 17-10230 (9th Cir. 2018), the Court affirmed the district court's denial of the defendant's motion to suppress. 

This was a CP case focused on the dark website, playpen. 

The government obtained a Network Investigative Technique (“NIT”) warrant from a magistrate judge in the Eastern District of Virginia, which authorized the search of all “activating” computers—that is, those of any website visitor, wherever located, who logged into Playpen with a username and password.

"The NIT technology is computer code consisting of a set of instructions. When a person logged into the Playpen site, the NIT caused instructions to be sent to his computer, which in turn caused the computer to respond to the government-controlled server with seven pieces of identifying information, including its IP address. The NIT mechanism allowed the FBI, while controlling the website from within the Eastern District of Virginia, to discover identifying information about activating computers" anywhere they happened to be located.

As a result, via the warrant, the government obtained the defendant's IP address, and then his home address.

The first issue on appeal concerned the validity of the warrant.  Joining its sister Circuits, the Court held the warrant was invalid under Rule 41, because it authorized a search outside of the issuing magistrate judge’s territorial authority.  The Court further concluded the Rule violation was not merely a technical mistake, but went to the magistrate judge’s jurisdiction to act in this case.

Thus, the Court held, a warrant authorizing a search beyond the jurisdiction of the issuing magistrate judge is void under the Fourth Amendment: "The weight of authority is clear: a warrant purportedly authorizing a search beyond the jurisdiction of the issuing magistrate judge is void under the Fourth Amendment. We agree with our sister circuits’ analysis and conclude that the Rule 41 violation was a fundamental, constitutional error."

However, the Court also concluded the agents acted in good faith reliance on the warrant, and denied suppression.

10/15/18: Good decision in stash house sting case

In United States v. Seller, --- F.3d ---, No. 16-50061 (9th Cir. 2018), the Court vacated the district court’s order denying the defendant’s motion seeking discovery on a claim of selective enforcement.

This case arose from yet another reverse sting operation to rob a fictitious stash house.  The defendant sought to challenge the prosecution on the ground of selective enforcement -- i.e., that he was targeted by law enforcement based on his race. 

The question on appeal was what threshold showing is required to obtain discovery from the government in favor of a selective enforcement claim.

As the Court explained, a selective enforcement claim is different than a selective prosecution claim: 

"Selective prosecution is not selective enforcement— especially not in the stash house reverse-sting context. There are two main differences that warrant departure from the Armstrong standard: First, law enforcement officers do not enjoy the same strong presumption that they are constitutionally enforcing the laws that prosecutors do. Second, the nature of reverse-sting operations means that no evidence of similarly situated individuals who were not targeted exists."

Thus, joining the Third and Seventh Circuits, the Court declined to adopt the rigorous Armstrong standard that applies to selective prosecution claims:

"Today we join the Third and Seventh Circuits and hold that Armstrong’s rigorous discovery standard for selective prosecution cases does not apply strictly to discovery requests in selective enforcement claims like Sellers’s. Contrary to Armstrong’s requirements for selective prosecution claims, a defendant need not proffer evidence that similarly-situated individuals of a different race were not investigated or arrested to receive discovery on his selective enforcement claim in a stash house reverse-sting operation case. While a defendant must have something more than mere speculation to be entitled to discovery, what that something looks like will vary from case to case. The district court should use its discretion—as it does for all discovery matters—to allow limited or broad discovery based on the reliability and strength of the defendant’s showing."

And "Because the district court applied an incorrect legal standard, we follow our normal practice of remanding to the district court to determine in the first instance whether Sellers has met the standard we outline today."

There is a good concurrence from Judge Nguyen about how these stash house stings have a clear racial bias: "Like many of my colleagues across the country, I am greatly disturbed by the government’s practice and, in particular, its disproportionate impact on people of color. The government’s use of stash house reverse stings warrants closer scrutiny" 

Judge Graber dissented. 

10/10/18: A day about prosecuting police

The Ninth published an opinion and an order today.  Both cases involve federal prosecutions of law enforcement officers. 

First, in United States v. Gonzalez, --- F.3d ---, No. 15-50483 (9th Cir. 2018), the Court affirmed the defendants' convictions and sentences.  The case arose after Sheriff deputies beat a handcuffed man at the L.A. Jail.  The defendants were convicted of conspiracy to deprive the victim of his civil rights (18 U.S.C. § 241), violating his civil rights (18 U.S.C. § 242), and falsifying reports to obstruct an investigation (18 U.S.C. § 1519).

The opinion is long, covering a number of issues.  But most interesting (at least for me) is the discussions of sufficiency challenges in the context of multiple-object conspiracies.

The Court rejected the argument "that whenever one object of a multiple-object conspiracy is not supported by sufficient evidence, a general verdict must be set aside." 

It explained that, under Griffin v. United States, 502 U.S. 46 (1991), reversal is required "only if one of the objects of the conspiracy is legally deficient—for example, because the conduct underlying the object is protected by the Constitution, occurred outside the statute of limitations, or fails to come within the statutory definition of the crime."

But "[t]he rule is different when all objects of the conspiracy are sound as a legal matter, but one of them lacks adequate evidentiary support. Because “jurors are well equipped to analyze the evidence,” we can be confident that the jury chose to rest its verdict on the object that was supported by sufficient evidence, rather than the object that was not.  In this latter scenario, the verdict stands."

The Court found: "This case is controlled by Griffin. Gonzalez and Ayala do not contend that either object of the conspiracy charged in Count One was legally deficient. They do not, for example, assert that the jury instructions improperly defined the elements of the crime. They argue only that the first object, concerning Carrillo’s right to be free from the use of excessive force, was not supported by sufficient proof. Even if we agreed with them on that point (which we don’t, for reasons explained below), they would not be entitled to reversal of their convictions on Count One."

There is lots more in the decision -- for example, a discussion of Pinkerton liability and causation requirements under 18 U.S.C. § 242.  Worth a read.

Next, the saga of Joe Arpaio continues.  For those who don't recall: "Arpaio violated an order of the district court. The United States prosecuted Arpaio for criminal contempt of court and obtained a conviction on July 31, 2017. President Trump pardoned Arpaio on August 25, prior to sentencing by the district court. Arpaio then moved to dismiss the prosecution and to vacate the conviction. On October 19, 2017, the district court granted Arpaio’s motion to dismiss the prosecution but denied his motion to vacate the conviction. Arpaio appealed the denial."

After the government indicated it would not defend the appeal, "a motions panel of our court issued an order authorizing the appointment of a special prosecutor to provide briefing and argument to the merits panel” that will hear Arpaio’s appeal."

In United States v. Arpaio, --- F.3d ---, No. 17-10448 (9th Cir. 2018), the Court denied rehearing en banc of that order.  There are concurrences and dissents, arguing about whether the special prosecutor is appropriate (as opposed to amicus).  In any event, if you are interested in the law regarding a court's authority to appoint a special prosecutor, this one is for you.

10/3/18: Good sentencing decision

Today, in United States v. Gray, --- F.3d ---, No. 18-30022 (9th Cir. 2018), the Court vacated the defendant's sentence based on the peculiar sentencing procedure used by the district court. 

This was a supervised release revocation case. 

The defendant consented to a revocation hearing before the MJ.  The MJ recommended a 5-month sentence.

The district court, however, without holding a further hearing imposed a 20-month sentence, relying heavily on the probation officer’s confidential sentencing recommendation, which included factual information that had not been disclosed to the defendant.

The Ninth held this was improper.  First, the district court violated Federal Rule of Criminal Procedure 32 by failing to disclose to the defendant the factual evidence on which it relied at sentencing.  Second, "even if the defendant is given an opportunity to appear and speak before the magistrate judge, the district court must provide the defendant an additional opportunity before the actual sentence is imposed."

9/18/18: Wiretap case and certified questions regarding Oregon robbery

Two cases today.

First, in United States v. Estrada, --- F.3d ---, No. 16-50439 (9th Cir. 2018), the Court affirmed the district court’s order denying a wiretap suppression motion. 

The Court held the wiretap was permissible -- i.e., necessary -- even though the government had access to a high-level confidential informant.   The decision is another reminder that the "necessity" requirement is mostly a platitude.

Second, in United States v. Lawrence, --- F.3d ---, No. 17-30061 (9th Cir. 2018), the Court certified the following questions to the Oregon Supreme Court.

1. Is Oregon first-degree robbery, Or. Rev. Stat. § 164.415, divisible?

2. Is Oregon second-degree robbery, id. § 164.405, divisible?

3. Put another way, is jury unanimity (or concurrence) required as to a particular theory chosen from the listed subparagraphs of each statute?

9/13/18: Washington drugs crimes not ACCA predicates & a marijuana case with lots of interesting issues

In United States v. Franklin, --- F.3d ---, No. 17-30011 (9th Cir. 2018), the Court considered whether Washington’s broad accomplice liability statute renders an offense under its drug trafficking law categorically broader than a “serious drug offense,” as that term is defined in the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(A).

The Court held that it did, and thus vacated the defendant's sentence. 

The decision is based on United States v. Valdivia-Flores, 876 F.3d 1201 (9th Cir. 2017), in which the Court held that Washington’s accomplice liability statute renders its drug trafficking law categorically broader than a federal drug trafficking equivalent.  Therefore, the Washington statute was not categorically an “illicit trafficking” offense and, in turn, not an “aggravated felony” under the Immigration and Nationality Act.

This case expands on that decision.  The crux of the inquiry was whether "there [is] any pertinent difference between the 'serious drug offense' description in the ACCA and the generic 'illicit trafficking' described in the statute analyzed in Valdivia-Flores that yields a different result here on the categorical match issue?" 

There was not: "A conviction under Washington’s accomplice liability statute renders its drug trafficking law broader than generic federal drug trafficking laws under the INA and, as we hold now, under the ACCA. Washington’s drug trafficking law is thus not categorically a 'serious drug offense' under the ACCA."

This is an important decision to read, because it rejects a host of government arguments about the categorical approach.

Next, in United States v. Lynch, --- F.3d ---, No. 10-50219 (9th Cir. 2018), a divided Court affirmed the defendant's convictions for running a marijuana business, despite its arguable compliance with state law. 

The decision is too long for me to summarize.  However, there are lengthy discussions of entrapment by estoppel and jury nullification, among myriad other issues.  I'm including the Ninth Circuit's summary below.

The panel (1) affirmed Charles Lynch’s conviction for conspiracy to manufacture, possess, and distribute marijuana, as well as other charges related to his ownership of a marijuana dispensary in Morro Bay, California; (2) on the government’s cross-appeal, remanded for resentencing; and (3) instructed the district court on remand to make a factual determination as to whether Lynch’s activities were in compliance with state law.

The panel held that the district court’s exclusion of testimony from a lawyer about Lynch’s phone call to the DEA, as well as a recording of this lawyer discussing that call on a radio program, was correct because both pieces of evidence were hearsay to which no exception applied.

The panel held that the district court did not abuse its discretion in excluding repetitive and irrelevant evidence about Lynch’s compliance with local laws.

The panel held that evidence of a dispensary employee’s marijuana sale to a government agent was not more prejudicial than probative, and was generally harmless given Lynch’s concession of factual guilt. The panel held that the district court correctly excluded as hearsay a statement the employee made to an investigator that Lynch “didn’t know anything about this deal.”

The panel held that there was no error in the district court’s handling of a number of pieces of evidence that Lynch contends were impermissibly inflammatory, and that any would be harmless.

The panel rejected Lynch’s claim that evidence he subsequently discovered about the United States’ prosecution priorities should have been disclosed to him pursuant to Brady v. Maryland. The panel held that the evidence was not exculpatory of Lynch or otherwise relevant to his case.

The panel held that because Lynch did not show facts providing a basis on which a reasonable jury could find that he was entitled to the defense of entrapment by estoppel, he was not entitled to present that defense in the first place, and the district court did not err in any decisions it made with respect to it.

The panel held that the district court did not commit any error by warning during voir dire against jury nullification. The panel held that the admonition was an appropriate exercise of a district court’s duty to ensure that a jury follows the law, and was additionally justifiable given that the need for the warning was a risk that Lynch’s counsel had invited.

The panel held that the district court did not abuse its discretion in not allowing him to inform the jury of the mandatory minimum sentence that he faced if convicted.

The panel rejected the Lynch’s challenges to the district court’s handling of jury communications because the district court did not actually permit any ex parte communications and the other limitations were reasonable exercises of a district court’s power to manage its trial proceedings.

On the government’s cross-appeal, the panel held that the district court erred in not applying the five-year mandatory-minimum sentence under 21 U.S.C. § 841(b)(1)(B)(viii) on the ground that Lynch was eligible for the safety valve set forth in 18 U.S.C. § 3553(f). The panel held that Lynch was not eligible for the safety valve, given his role leading the dispensary, an organization involving more than five participants; and that Lynch was therefore required to be sentenced to the five-year mandatory minimum. The panel rejected the government’s request that the case be reassigned to another district judge on remand.

The panel did not need to reach the question of whether a congressional appropriations rider (enacted following the filing of this appeal), which this court has interpreted to prohibit the federal prosecution of persons for activities compliant with state medical marijuana laws, operates to annul a properly obtained conviction. The panel explained that a genuine dispute exists as to whether Lynch’s activities were actually legal under California state law, and therefore remanded to the district court for a factual determination as to state-law compliance.

Dissenting, Judge Watford would reverse and remand for a new trial because, in his view, in trying to dissuade the jury from engaging in nullification, the district court violated Lynch’s constitutional right to trial by jury, and the government can’t show that this error was harmless beyond a reasonable doubt.

9/7/18: California robbery is no longer a “crime of violence” under § 16(a) or § 16(b) and lots of good procedural stuff

In United States v. Garcia-Lopez, --- F.3d ---, No. 15-50366 (9th Cir. 2018), the Court vacated the district court’s order denying the defendant’s motion to withdraw his guilty plea to a violation of 8 U.S.C. § 1326.

This case is good on both substance and procedure. 

First, as to substance, the Court held that California robbery (211) is no longer a “crime of violence” under § 16(a) or § 16(b).

Second, as to procedure, this provided the defendant good cause to withdraw his guilty plea, even though he did not raise the argument below.

Here is some of the helpful language for raising claims for the first time on appeal.

"Garcia-Lopez did not raise in the court below the argument that California robbery does not constitute a “crime of violence” under § 16. He raised the issue for the first time on appeal . . . .'We generally review arguments not raised before the district court for plain error.” United States v. 'However, we are not limited to this standard of review when we are presented with [1] a question that is purely one of law and [2] where the opposing party will suffer no prejudice as a result of the failure to raise the issue in the trial court.' Here, the Government has “presented at length before this court” its positions on the two “purely legal question[s]” at issue: whether California robbery constitutes a “crime of violence” under § 16 pursuant to Dimaya, and whether Dimaya, along with other recent case law from this Circuit, provides a 'fair and just reason' for withdrawal of the guilty plea."

"we have repeatedly held that 'issues . . . deemed waived [in the district court] under Rule 12 may be addressed by this court and relief may be granted where good cause is shown for the party’s failure to raise the argument earlier.'"

9/4/18: Two cases today

In United States v. Kechedzian, --- F.3d ---, No. 16-50326 (9th Cir. 2018), the Court vacated the defendant's conviction finding the district court erred by failing to excuse a juror for cause under an actual bias theory.

This is an important case to read, because the district court tried to rehab the juror.  Here's the colloquy:

THE COURT: “[D]oes anyone feel, just based on the charges in this case, based on what this case is about, that they could not be fair and impartial to both sides? Does anyone feel that way at this point in time?”

JUROR # 3: Yes. . . . [A]bout five years ago I had . . . my social security number [stolen.] . . . I might be able to put that aside and just go by what I hear here in the courtroom. THE COURT: “Might” is a significant word. Let’s follow up with it a little bit. Obviously you couldn’t be a juror on the person who stole your identity and social security card. You’d be a bit upset—

JUROR # 3: Absolutely not.

THE COURT: You would be quite upset about that. But I guess the question becomes not just maybe. We need to know whether or not you are going to decide this case based on what happened to you and your social security number. What do you think?

JUROR # 3: Well, I would want to put my personal stuff aside, but I honestly don’t know if I could.

THE COURT: So will you tell us if you can’t, if all of a sudden you go through this case and you say you know what? My social security number is popping up in my head, and I’m going to decide this case based on what happened to me? Would you tell us that?

JUROR # 3: No, I would try to be fair . . . and put my personal experience aside. THE COURT: But if it turns out you’re going through this process and you feel you can’t— it’s not working, would you tell us?

JUROR # 3: Yes, I would.

THE COURT: Okay. All right.

The Ninth Circuit held this was not sufficient: "at bottom, Juror # 3’s statements do not provide any assurance that she was, or could have been, impartial."

Next in United States v. Peterson, --- F.3d ---, No. 17-30084 (9th Cir. 2018), the Court affirmed the district court's denial of the defendant's motion to suppress but reversed his sentence.

As to the motion to suppress, the issue revolved around the alleged inevitable discovery of a gun in the defendant's backpack.  The Court assumed the search was not a valid search incident to arrest, but concluded the gun would have been discovered: 

"Because the officers would have booked Peterson on obstruction or resisting arrest charges absent discovery of the gun, and because bail had not yet been set on those charges, Peterson would have been taken into custody upon booking.  The evidence demonstrates that it is standard procedure to inventory a defendant’s possessions at the time of booking if the King County jail will not accept the item and the arrestee will be taken into custody." 

In other words, the Court concluded an inventory search was inevitable.

As to the sentence, the Court held that Washington first-degree robbery (§ 9A.56.190) is not a crime of violence under U.S.S.G. §§ 2K2.1(a)(2) and 4B1.2.  Specifically, because Washington robbery encompasses threats to property, it does not fall categorically within generic robbery.  Further, the Washington robbery statute is not a categorical match for extortion because it allows for a conviction to rest on fear of injury to property alone.

8/31/18: Valdes-Vega strikes again

In United States v. Rogoza-Garcia, --- F.3d ---, No. 16-50490 (9th Cir. 2018), the Court affirmed the district court’s denial of the defendant’s motion to suppress drugs found in his car during a stop near Fallbrook, Ca.

The justification for the stop was paltry: Baja plates, multiple border crossings, slowing when passing law enforcement, driver both paying attention to the agents and not paying attention to the agents.

But under Valdez-Vega, the Court must "allow[] officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person." So, the Court finds sufficient reasonable suspicion.

There is a concurrence warning that "law enforcement may not support a stop using innocent conduct, in and of itself. Because many of these factors may disproportionately apply to the Latino population, as they did here, there is a risk of sanctioning race- or ethnicity-based stops."

8/29/18: Cal Meth is overbroad

This could be a big deal.

In Atenia Lorenzo v. Sessions, --- F.3d ---, No. 15-70814 (9th Cir. 2018), the Ninth Circuit holds that Cal. Meth is overbroad -- that is, it is not a match for the federal definition of meth.

Specifically, under California law, a methamphetamine conviction may involve methamphetamine or it may involve methamphetamine’s “salts, isomers, [or] salts of its isomers,” including both “optical and geometrical . . . isomers."

Under federal law, however, "[w]ith respect to methamphetamine, [] the CSA applies only to optical isomers, not geometric isomers."

Based on this difference, the Court held as follows:

[W]e conclude the definition of “methamphetamine” applicable to convictions under California Health & Safety Code §§ 11378 and 11379(a) is broader than the definition of methamphetamine under the federal Controlled Substances Act, 21 U.S.C. § 812. Under the first step in the categorical approach, therefore, a conviction for a methamphetamine offense under §§ 11378 or 11379(a) does not qualify as a “controlled substance” violation under 8 U.S.C. § 1227(a)(2)(B)(i).

We further conclude the methamphetamine element applicable to a conviction under §§ 11378 or 11379(a) is not divisible, because the different varieties of methamphetamine covered by California law are alternative means of committing a single crime rather than alternative elements of separate crimes.

We therefore do not apply the modified categorical approach. Because the methamphetamine element of §§ 11378 and 11379(a) is overbroad and the modified categorical approach does not apply, we hold a methamphetamine conviction under §§ 11378 or 11379(a) does not qualify as a controlled substance offense under 8 U.S.C. § 1227(a)(2)(B)(i).

This could have big ramifications for criminal cases in terms of sentencing enhancements (perhaps even 851s) based on prior CA meth convictions, and of course 1326(d) motions.

Also, the Court's reasoning should apply to any other substances that have the same overbreadth issue -- e.g. if Cal. cocaine is defined more broadly than Fed cocaine (I don't know the answer yet).

I'm sure we will have more on this soon.

8/28/18: Cal PC 496(a) is an aggravated felony theft offense

In United States v. Flores, --- F.3d ---, No. 16-50096 (9th Cir. 2018), the Court affirmed the defendant's sentence for illegal reentry.

There were two issues. First, whether the defendant's prior removals were valid. Second, whether, in a bench trial, the district court erred under Daubert by admitting a fingerprint examiner's testimony.

The first issue turned largely on whether the defendant's prior conviction for receiving stolen property under California Penal Code § 496(a) was an aggravated felony theft offense.

The Court's analysis was long and complex, with detours into Chevron deference. Ultimately, it held "California’s receipt of stolen property offense is a categorical match for the generic federal crime of receipt of stolen property and therefore it was not unreasonable for the Board of Immigration Appeals to construe it as a felony 'theft offense (including receipt of stolen property),' that is, as an aggravated felony as defined in the INA."

As to the fingerprint issue, the Court explained, "Flores waived his right to a jury trial and was convicted after a bench trial. Daubert is meant to protect juries from being swayed by dubious scientific testimony. When the district court sits as the finder of fact, there is less need for the gatekeeper to keep the gate when the gatekeeper is keeping the gate only for himself."

"Thus, where the factfinder and the gatekeeper are the same, the court does not err in admitting the evidence subject to the ability later to exclude it or disregard it if it turns out not to meet the standard of reliability established by Rule 702.”

8/23/18: Cal. robbery (211) not a crime of violence.

In United States v. Blankson, --- F.3d ---, No. 16-10124 (9th Cir. 2018), the Ninth Circuit finished the process it began a few months ago in Edling. 

Specifically, in Edling, the Court held that Nevada robbery was not a crime of violence under the Guidelines. 

Today, the Court extended that to California robbery (PC 211), holding that robbery under California Penal Code § 211 is not a “crime of violence” because it is no longer a categorical match to a combination of Guidelines-described robbery and extortion, and the contrary holding in United States v. Becceril-Lopez, 541 F.3d 881 (9th Cir. 2008), is no longer good law.

This is great news going forward, but it did not help the defendant, who was sentenced before the Guidelines were amended in 2016.  Under the prior version of the Guidelines, 211 was a crime of violence. 

In short, 211 is not a crime of violence for everyone sentenced after August 1, 2016.

8/22/18: Old version of Cal. P.C. 245(a)(1) is a crime of violence under 18 U.S.C. § 16(a).

In United States v. Vasquez-Gonzalez, --- F.3d ---, No. 15-10285 (9th Cir. 2018), the Court affirmed the defendant's conviction for illegal reentry.

The primary issue was whether his prior removal was invalid because it was based on a 245(a)(1) conviction, which the defendant argued was not a crime of violence under 18 U.S.C. § 16.

The Court disagreed. But there is a small silver lining for state court practice. The panel explained, "the Supreme Court of California has expressly stated that the mens rea for assault in California requires more than negligent conduct." So, if you have a state assault case where the prosecution is arguing a negligent/reckless assault theory, perhaps this case can be helpful. 

Finally, of note, this decision addressed only the prior version of 245(a)(1), which was amended in 2011.  So challenges to the newer version are not foreclosed.

8/21/18: The devil is in the details

Two criminal cases.

Each seems straightforward, but contains a troubling detail.

First, in United States v. Schram, --- F.3d ---, No. 17-30055 (9th Cir. 2018), the Court affirmed the district court's denial of a suppression motion.

The issue was "whether a person who is prohibited from entering a residence by a court’s no-contact order still may have a legitimate expectation of privacy that would entitle him to Fourth Amendment protection in that residence." The Court determined he or she cannot.

The crux of the Court's conclusion was the principle that a privacy interest is not reasonable when one’s presence in a place is “wrongful.”

That is fine as far as it goes, but here is the sentence I find troubling: "while a defendant does not lose his Fourth Amendment rights simply by engaging in illegal acts, a defendant still may lack Fourth Amendment rights to challenge the search of a residence when the law prevents him from being there in the first place."

The law "prevents" lots of people from being anywhere in the U.S. in the first place. Is the government going to claim they have no 4th Amend rights? I certainly hope we don't see such an absurd argument. But I wish the panel had used tighter language.


Second, in United States v. McCarns, --- F.3d ---, No. 16-10410 (9th Cir. 2018), the Court affirmed the defendant's conviction and sentence for real-estate fraud.

The Court rejected the defendant's Speedy Trial Act claim, which alleged a failure to sufficiently set forth reasoning on the record. The Court held that the district court’s references to Eastern District of California local codes – which correspond to the factors set forth in 18 U.S.C. § 3161(h)(7)(B) – sufficiently explained its findings that the "ends of justice” were served by granting continuances.

More interesting is the discussion of Guidelines error. Rarely, if ever, is Guidelines error considered harmless. Indeed, the Supreme Court said just that Molina-Martinez.

But this case finds harmlessness. In fact, the Court did not even reach the question of whether the district court erred in applying a three-level manager or supervisor enhancement.

Instead, it explained that, with or without the enhancement, the low-end would exceed the statutory maximum. And because the 240-month maximum was less than the minimum of the applicable Guidelines range, any error was necessarily harmless.

Again, this is fine as far as it goes (that is, cabined to its facts). But I expect to see this decision cited in other contexts for the proposition that Guidelines error is harmless.  Be aware.

8/17/18: Nevada battery committed with a deadly weapon is categorically a crime of violence

In United States v. Guizar-Rodriguez, --- F.3d ---, No. 16-10507 (9th Cir. 2018), the Court affirmed the defendant's illegal reentry conviction.

The case turned on whether the defendant's prior removal order was valid, which turned on whether he had a prior conviction for an aggravated felony, which turned on whether battery committed with the use of a deadly weapon under Nevada Revised Statute § 200.481(2)(e)(1) is categorically a crime of violence as defined in 18 U.S.C. § 16(a).

The Court held it was. For most, this is all you need to know.

But for those interested in categorical analysis generally, this case has an unusual twist. Nevada has a statute defining "deadly weapon" in the sentencing context. That statute is overbroad, in that it includes items that are not particularly dangerous and thus their use would not satisfy Johnson's physical force requirement.

The Ninth Circuit acknowledges the overbreadth in the statutory definition, but determines it is not controlling. Instead, it looks to the more limited Nevada common law definition, and finds it applies outside of the sentencing context, to the actual crime of conviction.

 

8/15/18: Case on the Federal Juvenile Delinquency Act

In United States v. Juvenile Male, --- F.3d ---, No. 17-10257 (9th Cir. 2018), the Court vacated the appellant's sentence and ordered his immediate release because his term of detention exceeded the statutory maximum.

This case has to do with whether custody time aggregates based on multiple revocations of juvenile delinquent supervision. The short answer is yes: "The text and structure of § 5037(d)(5), its legislative history, and the FJDA’s motivating purpose support Appellant’s argument that he was entitled to credit for "any term of official detention previously ordered."


In other news, we have a space in our office available for rent. Let me know if you're interested.

8/8/18: marital communications privilege

In United States v. Fomichev, --- F.3d ---, No. 16-50227 (9th Cir. 2018), the Court vacated the district court’s order denying a defendant’s motion to suppress, and remanded for further proceedings.

The issue was whether the sham marriage exception -- which has been applied to the spousal testimonial privilege -- should also apply to the marital communications privilege.

The sham marriage exception is a narrow exception that arises when there is a close temporal proximity between the date of a marriage and the date when a witness-spouse has been expected to testify. The Ninth Circuit has affirmed a district court’s ruling that the spousal testimonial privilege was not available to a witness-spouse because “the purpose of the marriage was for . . . invoking the [spousal testimonial] privilege.”

In this case, the Court held the sham marriage exception should not extend to the marital communications privilege. "We have never applied the sham marriage exception to the marital communications privilege, and doing so would expand the limited application the exception receives in the context of the spousal testimonial privilege. The government bears the burden to persuade us that the sham marriage exception should be extended, and it has offered no convincing reason to modify this longstanding rule."

8/6/18: dangerously under the influence of alcohol

Let's start with the case name: United States v. Nature. Seems timely.

Anyway, in United States v. Nature, --- F.3d ---, No. 17-10161 (9th Cir. 2018), the Court affirmed the defendant’s conviction for being dangerously under the influence of alcohol in violation of 36 C.F.R. § 34.5(b)(21), while he was in the El Portal Administrative Site, which is adjacent to Yosemite National Park.

The only reason for publishing this case seems to be the brief discussion of "mutatis mutandis," meaning making necessary alterations while not affecting the main point.

The Ninth Circuit used this doctrine to incorporate the relevant dangerous-drinking-prohibition into the regulations applicable to the Site.

8/2/18: helpful 1326(d) decision

In United States v. Ochoa-Oregel, --- F.3d ---, No. 16-50413 (9th Cir. 2018), the Ninth gives us good new law in the 1326(d) context.

The Court vacated the defendant's conviction, finding his two prior removals invalid.

First, the Court held that, because the defendant's 2008 removal proceeding was in absentia, he satisfied the exhaustion and deprivation-of-judicial-review requirements under 1326(d).

The Court also held that, because circuit precedent established California battery was not a categorical crime of violence, the IJ erred in ordering him removed for a crime of domestic violence based on the battery conviction.

Second, the Court held that the defects in the 2008 removal proceeding infected the defendant’s 2011 expedited removal for presenting invalid entry documents. This is new ground. 

The Court explained, "[a] person should not be stripped of the important legal entitlements that come with lawful permanent resident status through a legally erroneous decision that he or she had no meaningful opportunity to contest. Among those protections is that lawful permanent residents cannot be removed on an expedited basis." That meant, the 2011 removal was also invalid. 

One other point worth mentioning: 

The government contends that even if Defendant should have been treated as a lawful permanent resident in 2011, he was not prejudiced because he was an aggravated felon, who could have been removed anyway, and who would have been denied discretionary relief, including withdrawal of his application for admission. We reject the government’s contention for a fundamental reason. Because Defendant retained the protections afforded to lawful permanent residents, he was not removable as charged in the 2011 proceedings—he was removed for presenting invalid entry documents. But if he was still a lawful permanent resident, then his entry documents were not invalid. And even if the government might have been able to remove him on other grounds through a formal removal proceeding, his removal on illegitimate grounds is enough to show prejudice.

In other words, although in 2011 the defendant was arguably removable for being an aggravated felon, because he was not charged with that ground of removability, the removal order was invalid.  

7/30/18: unanimity instruction and constructive amendment

In United States v. Mickey, --- F.3d ---, No. 16-50343 (9th Cir. 2018), the Court affirmed the defendant's convictions for sex trafficking by force, threats of force, fraud, or coercion in violation of 18 U.S.C. §§ 1591(a) and (b)(1).

The issues on appeal were the need for a specific unanimity instruction and constructive amendment.

First, the Court held the district court properly declined to give a specific unanimity instruction as to whether the defendant used force, threats of force, fraud, or coercion. The Court held that, because these are "means" of committing the crime, not distinct "elements" of the crime, unanimity was not required.

The Court explained, "[i]n line with the general unanimity instruction, the jurors unanimously agreed that [defendant] knew or was in reckless disregard of the fact that 'any combination of such means' of force, threats of force, fraud or coercion would be used to traffic [the victim]. The jury did not need to 'unanimously agree on a [more] specific classification of [the defendant's] conduct.'"

Interestingly, the Court faulted the government for introducing "considerable, and unnecessary, risk of error by asking the jury to decide which means [the defendant] used to traffic his victims."

"The important lessons from this case are that the prosecution is required to prove every element of the crime beyond a reasonable doubt— without a requirement to subdivide the inquiry to the atomic level—and that jury instructions should not only match the statutory language but should be internally consistent."

Second, under the facts, the Court determined that the inclusion of the statutory phrase "or any combination of such means" in the jury instructions and Special Verdict Form did not constitute a constructive amendment even though the phrase was omitted from the operative indictment.

7/27/18: Continuances, right to self representation, and expert funds under the CJA

Today brings a lengthy decision affirming the defendant's fraud conviction.  Let's just say, the client was a bit difficult.

In United States v. Turner, --- F.3d ---, No. 14-50238 (9th Cir. 2018), the defendant was charged with fraud in two separate cases.  For years, he oscillated between numerous attorneys and representing himself. 

The issues on appeal were:

1. Whether the defendant’s Sixth Amendment right to counsel was violated when the district court partially rejected the eighth request for a continuance, after continuing the trial for over two and half years.

2. Whether the district court violated the defendant' Sixth Amendment right to counsel by requiring him to represent himself.

3. Whether the district court abused its discretion in determining that the defendant was not entitled  to CJA funds to hire a psychiatrist to conduct a mental evaluation.

The Court answered "no" to all three. 

First, when a request for a continuance implicates the right to counsel, the district court’s denial of such a request “can be analyzed either as the denial of a continuance or as the denial of a motion to substitute counsel.”  The Court concluded, "the district court’s ruling was based on timing concerns.  Given this focus, the Court analyzed the district court’s order as denial of the full continuance requested.

“To establish a Sixth Amendment violation based on the denial of a motion to continue, [a defendant] must show that the trial court abused its discretion through an ‘unreasoning and arbitrary “insistence upon expeditiousness in the face of a justifiable request for delay.  But where a denial of a continuance implicates a defendant’s Sixth Amendment right to counsel, we consider the following factors: “(1) whether the continuance would inconvenience witnesses, the court, counsel, or the parties; (2) whether other continuances have been granted; (3) whether legitimate reasons exist for the delay; (4) whether the delay is the defendant’s fault; and (5) whether a denial would prejudice the defendant.”

The Court concluded an analysis of the five factors supports the district court’s denial of a longer continuance.

Second, as to self representation, the Court held, if the record as a whole establishes that the defendant had sufficient information about the charges, penalties, and risks and disadvantages of proceeding pro se, and sufficient opportunity to be represented by counsel, a “defendant’s actions which have the effect of depriving himself of appointed counsel will establish a knowing and intentional choice.”

"In this case, the district court did not err in concluding that Turner waived his right to counsel through his conduct. The record supports the district court’s conclusion that Turner was engaging in dilatory tactics, rather than attempting to exercise his right to counsel in good faith. To recap, Turner asserted his right to represent himself four times and subsequently asserted his right to counsel, but only counsel of his choice. After the court denied his request to represent himself on July 30, 2012, Turner moved again to represent himself on August 12, but then changed his mind and stated on August 27 that he would try to retain an attorney. Turner moved to represent himself again on October 18, 2012 and confirmed his desire to represent himself at an April 17, 2013 status conference. A July 16, 2013 trial date was set. At a status conference on May 6, Turner asked for a 30-day continuance to attempt to retain counsel. At a hearing on June 10, Turner stated he was continuing his efforts to retain counsel. He repeated this same refrain on June 25 and on July 10. On July 19, he vacillated as to whether he would accept appointed counsel, but ultimately asked the court to appoint counsel. On July 22, Turner stated he wanted to retain counsel and refused to accept Harley as appointed counsel. 

As this recital makes clear, Turner “manipulated the proceedings” by vacillating between asserting his right to self representation and his right to counsel. Sutcliffe, 505 F.3d at 955. The district court concluded as much, telling Turner on July 10 that it was “unfair to the court system and unfair to the government to engage in the pattern which I’ll charitably call dalliance, shuttling between being represented by yourself and by counsel.” The district court did not abuse its discretion in concluding that Turner was taking these steps for purposes of delay."

Third, “[t]he purpose of the Criminal Justice Act [is] to put indigent defendants as nearly as possible in the same position as nonindigent defendants.” Therefore, it is an abuse of discretion to deny a request for an expert where “(1) ‘reasonably competent counsel would have required the assistance of the requested expert for a paying client,’ and (2) the defendant ‘was prejudiced by lack of expert assistance.’”  Prejudice “cannot be merely speculative; it must be demonstrated by clear and convincing evidence.”

Under these principles, the Court concluded, the district court did not abuse its discretion in denying Turner’s request for an expert to perform a mental evaluation in support of a motion for a new trial.

7/26/18: Interesting decision on wire fraud, organizer sentencing enhancement, and restitution

In United States v. Holden, --- F.3d ---, No. 16-30186 (9th Cir. 2018), the Court affirmed the defendant's fraud convictions, but vacated the sentence.

As to the convictions, the main issue was the Ninth Circuit's interpretation of the wife/mail fraud statutes: "Defendant’s beef is . . . with our circuit’s longstanding construction of the mail and wire fraud statutes. Defendant argues that our 'interpretations' of those statutes are not interpretations at all, but instead amount to judicially created crimes in violation of separation-of-powers principles."

The Court continued: "Under our longstanding precedent, 'anyone who knowingly and intentionally participates in the execution of [a] fraudulent scheme comes within the prohibition of the mail and wire fraud statutes regardless of whether the defendant devised the scheme.' But, as Defendant correctly points out, the mail and wire fraud statutes, by their terms, punish only those who 'devise[] or intend[] to devise any scheme or artifice to defraud'; the word 'participate' does not appear in the statutes. According to Defendant, by reading the mail and wire fraud statutes to prohibit 'participation in' schemes to defraud, we have essentially created new crimes, thus violating separation-of-powers principles."

To me, this is a very clever and compelling argument. Not so much for the Court. It held there was no separation of powers problem because, in determining that the mail and wire fraud statutes criminalize  “participating in” schemes to defraud, it was engaged in proper judicial interpretation (not law making).

Of note, the Court says, "we do not usurp the role of Congress simply by construing a criminal statute broadly." But this seems to conflict with the principle that criminal statutes must be construed narrowly.

Moving on, the Court vacated the sentence because the record did not support the district court’s conclusion that the defendant exercised sufficient control or organizational authority over his co-conspirator to qualify for a two-level “organizer” enhancement under U.S.S.G. § 3B1.1(c). On this issue, there is lots of helpful language about what a defendant must have done to qualify as an organizer.

A person who is not criminally responsible for the commission of the offense . . . is not a participant.” In order to impose the enhancement, there must be a “showing that the defendant had control over other[]” participants or “organiz[ed] other[] [participants] for the purpose of carrying out” the charged crimes. A defendant “organizes” other participants if he has “the necessary influence and ability to coordinate the[ir] behavior . . . so as to achieve the desired criminal result[s].” Mere facilitation of criminal activity is not sufficient to support the enhancement. Nor is it sufficient for a defendant to have organized property or activities—the defendant must have organized participants.

As to restitution, the Court explained a restitution order cannot both require immediate restitution in full and set a mandatory, unconditional schedule of payments during the period of incarceration.

7/23/18: No presumption of public access to Rule 17(c) subpoena

In United States v. Sleugh, --- F.3d ---, No. 17-10424 (9th Cir. 2018), the Court held there is no presumption of public access under the First Amendment or common law to Rule 17(c) subpoena applications and their supporting materials. Thus, parties can gain access to sealed or in camera Rule 17(c) subpoenas, subpoena applications, and supporting documents only by demonstrating a “special need.”

In the average case, this rule will be a relief to most defendants, but not so here, where the defendant sought the information to attack the credibility of a government cooperator.

The case contains an interesting and detailed discussion regarding the public's right to access documents in criminal proceedings.

There is also some language worth noting for other appeals:

• "While appellate counsel certainly has an obligation to scour the record for appealable issues, see Jones v. Barnes, 463 U.S. 745, 753 (1983), this duty does not automatically create a right of access to sealed materials containing a co-defendant’s defense theories."

• I also like the simple description of the first prong of the abuse-of-discretion test: "this court must first determine under de novo review whether the district court applied the correct legal rule. United States v. Hinkson, 585 F.3d 1247, 1261–62 (9th Cir. 2009) (en banc). If the district court applied the wrong rule, the district court abused its discretion."

• Finally, for sufficiency challenges, "we [only] look at the evidence actually presented at trial."

7/20/18: New ground on Rule 615 and Jencks.

In United States v. Robertson, --- F.3d ---, No. 16-10385 (9th Cir. 2018), the Court affirmed the defendant's convictions for theft of mail by a postal employee in violation of 18 U.S.C. § 1709, and possession of stolen mail in violation of 18 U.S.C. § 1708.

Over what appear to be compelling defense arguments, the Court rules for the government on each.

The opinion deals with numerous issues, including failing to preserve video evidence.

But I'm going to address just two:

First, Rule 615 provides, in relevant part, that “[a]t a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony.” The Court "join[s] those circuits that have determined there is no difference between reading and hearing testimony for purposes of Rule 615." In other words, a party cannot get around Rule 615 by showing the witness a transcript.

But, in this case, the Court concluded, "cross-examination [wa]s a suitable remedy for a Rule 615 violation, at least where, as here, the violation of the rule was not deliberate."

Second, the Court considered under what circumstances the Jencks Act requires the government to disclose -- at least for an in camera review -- an agent's interview notes.

It held: "We now make it clear that unless a defendant makes a threshold showing that notes sought pursuant to the Jencks Act may qualify as a “statement” under the Act, the district court is not obligated to review the notes in camera before refusing to compel production. The defendant’s burden in this regard is not a heavy one. We agree with the Seventh Circuit that so long as a defendant seeking production under the Jencks Act specifies with reasonable particularity that a certain document exists, that there is reason to believe the document is a “statement” under the Act, and that the government failed to provide it in violation of the Act, the district court will ordinarily be required to conduct an in camera inquiry into whether the document in question constitutes a statement."

Under the Act, the term “statement” includes “a written statement made by [the] witness and signed or otherwise adopted or approved by him,” or a “substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement.” 18 U.S.C. § 3500(e).

Here, the defendant did not make a threshold showing that the rough notes constituted a statement under the Jencks Act.

7/19/18: Exceptions to exceptions, judicial abandonment and the good faith exception

In United States v. Barnes, --- F.3d ---, No. 16-30203 (9th Cir. 2018), the Ninth Circuit affirmed the defendant’s conviction for felon in possession despite an invalid arrest warrant (which led to the gun). 

The Court began with the general principle that “judges may not rely on a prosecutor’s complaint alone to find probable cause.”  In this case, however, there was nothing in the record demonstrating the judge relied on something other than the prosecutor’s complaint.

However, under the good faith exception, “evidence obtained in objectively reasonable reliance on a subsequently invalidated . . . warrant” is not subject to suppression.”  There are, however, exceptions to the exception.

The defendant argued the good faith exception was inapplicable because the judge wholly abandoned her judicial role by relying solely on the prosecutor’s complaint to find probable cause.

The Court agreed in part, “join[ing] our sister circuits in concluding that a defendant may show judicial abandonment through any one of the following ways: (1) the magistrate was biased against the defendant or otherwise personally interested in issuing the warrant; (2) the magistrate functionally occupied a different, non-neutral role while making the probable cause determination; or (3) the magistrate failed to review the requisite affidavits or materials prior to making a probable cause determination.”

But the exclusionary rule applies only if the issuing judge abandoned his or her judicial role and law enforcement officers knew or should have known of the abandonment.  Here, that second condition was not met.  Thus, no suppression.

7/13/18: Presidential commutation case

In United States v. Buenrostro, --- F.3d ---, No. 16-10499 (9th Cir. 2018), President Obama commuted the defendant's sentence from life to 360 months.

The defendant then moved for a sentence reduction under 18 U.S.C. § 3582(c)(2). The district court denied the motion.

The Court affirmed, holding the defendant was ineligible for a sentence modification under § 3582(c) because he was originally sentenced based on a statutory mandatory minimum, not based on a sentencing range. And nothing about the commutation changed that fact.

The Court further held the commutation did not create a new judgment, and thus the defendant remained subject to the restrictions on second-or-successive motions under § 2255.

7/11/18: Two interesting criminal cases today

In United States v. Pepe, --- F.3d ---, No. 14-50095 (9th Cir. 2018), a divided Court vacated the defendant's conviction conviction and 210-year(!) sentence under the 2005 version of 18 U.S.C. § 2423(c), which applied to a U.S. citizen “who travels in foreign commerce, and engages in any illicit sexual conduct with another person.”

This case is the rare exception to the rule that bad facts make bad law. The facts were terrible. Here is the first sentence of the opinion: "Michael Pepe, a U.S. citizen, drugged and raped seven children in Cambodia, where he claims to have resided for several years."

The defendant prevailed based on an argument that the statute -- as then written -- did not encompass his conduct because, as a resident of Cambodia, he had ceased “travel[ing] in foreign commerce.” In other words, when he committed the acts, he was no longer traveling.

The Ninth previously rejected a nearly identical argument in United States v. Clark, 435 F.3d 1100 (9th Cir. 2006) (concluding that § 2423(c) “does not require that the conduct occur while traveling in foreign commerce”).

BUT, congress then amended the statute to apply to a U.S. citizen “who travels in foreign commerce or resides, either temporarily or permanently, in a foreign country, and engages in any illicit sexual conduct with another person.”

The Court held that in light of the amendment it was evident the version of § 2423(c) in effect at the time of the defendant’s illicit sexual conduct was inapplicable to U.S. citizens living abroad unless they were traveling—meaning something more than being in transit—when they had illicit sex.

Accordingly, Clark was clearly irreconcilable with the intervening authority of the amendment, and no longer good law.

On that issue, there is helpful language:

We have a rule that “where the reasoning or theory of our prior circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher authority, a three-judge panel should consider itself bound by the later and controlling authority, and should reject the prior circuit opinion as having been effectively overruled.” The “intervening higher authority” is generally the federal or state court of last resort or an en banc panel of this court. However, Congressional amendments to a statute can also “constitute ‘intervening’ authority for the purposes of our rule.” In particular, “the rule is applicable in cases involving statutory interpretation where Congress has retroactively clarified the meaning of the statute at issue.” If our case law interpreting a statute is clearly irreconcilable with the text and history of subsequent legislation, we are not bound by the decisions of prior panels. We are dealing with such a case here.

Next, in United States v. Joyce, --- F3d ---, No. 17-10269 (9th Cir. 2018), the Court affirmed the defendant's conviction for conspiring to suppress and restrain competition by rigging bids, in violation of the Sherman Act, 15 U.S.C. § 1.

This case addresses the distinction between agreements subject to the "rule of reason" and those considered "per se" unreasonable restraints of trade.

As the Court explained:

Section 1 of the Sherman Act prohibits “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce.” 15 U.S.C. § 1. Despite the broad language used in the statute, the Supreme Court has held that Section 1 prohibits only agreements that unreasonably restrain trade. Typically, the determination of whether a particular agreement in restraint of trade is unreasonable involves a factual inquiry commonly known as the “rule of reason.” “The rule of reason weighs legitimate justifications for a restraint against any anticompetitive effects.”

The rule of reason inquiry, however, is inapplicable if “the restraint falls into a category of agreements which have been determined to be per se illegal.” The “per se rule is applied when the practice facially appears to be one that would always or almost always tend to restrict competition and decrease output.” Such agreements or practices are “conclusively presumed to be unreasonable” because of their “pernicious effect on competition and lack of any redeeming virtue.” If a business arrangement is a type conclusively presumed to be unreasonable, the government is relieved of any obligation to prove the unreasonableness of the specific scheme at issue and any business justification for the defendant’s conduct is neither relevant nor admissible.

The Court concluded that "bid rigging," as alleged in the indictment, fell within the "per se" rule.