1/30/18: Good decision on "reckless disregard" & material witness deposition testimony

In United States v. Rodriguez, --- F.3d ---, No. 16-10017 (9th Cir. 2018), the Court vacated the defendant's alien smuggling conviction.

The basic facts were that the defendant picked up an undocumented person inside the United States.  Much of the case turned on whether she should have known he was not the person pictured on the border crossing card in his possession.

There is lots of good stuff in the opinion.

The main issue was the district court's erroneous instruction on reckless disregard.

First, the Court rejected the government's plain error argument: "We have held that an error is preserved when the substance of the objection was 'patently' clear, even if defense counsel did not use the precise terms used on appeal."

Second, the Court rejected "the government’s semantic gymnastics, which somehow lead it to conclude that an instruction requiring the defendant to have 'knowledge of facts which, if considered and weighed in a reasonable manner, indicate[d] a substantial and unjustifiable risk,' required that a defendant knew of a substantial and unjustifiable risk that his conduct was criminal."

To this end, the Court explained, "that criminal recklessness generally requires . . . . the defendant both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” 

The Court further explained, "[t]he instruction in Rodriguez’s case should have stated something along the lines of the following, with italics representing additions to the wording actually used: The defendant acted with reckless disregard if the defendant knew of facts which, if considered and weighed in a reasonable manner, indicate a substantial and unjustifiable risk that the alleged alien was in fact an alien and was in the United States unlawfully, and the defendant knew of that risk."

The Court also included a helpful discussion on harmless error review, noting that the government waived the claim: "[a]nother reason we should not conduct a harmlessness review, when the government has waived the issue, is that “[g]eneral verdicts . . . which permit a jury to convict based on different possible theories—without specifying the theory that forms the basis of the verdict—can complicate this analysis.”

Finally, on the issue n of the material witness's videotaped testimony, the Court held its admission violated the defendant’s Confrontation Clause rights because the government made an insufficient showing that the passenger was unavailable, where the government’s efforts to secure his presence were not reasonable.

1/29/18: California carjacking is not a crime of violence under 8 U.S.C. § 1101(a)(43)(F)

Happy Monday,

Today brings a helpful decision from the immigration world.  In Solorio-Ruiz v. Sessions, --- F.3d ---, No. 16-73085 (9th Cir. 2018), the Court held that California carjacking is not a crime of violence under 8 U.S.C. § 1101(a)(43)(F), and its prior holding to the contrary in Nieves-Medrano is no longer good law after Johnson.

Basically, under Johnson v. United States, 559 U.S. 133, 140 (2010), to qualify as a crime of violence, the offense must require not just physical force, but  “violent force—that is, force capable of causing physical pain or injury to another person.”

Under California law, however, the carjacking statute does not require the violent force that Johnson demands, and thus the statute is not a crime of violence.  (Johnson applies because the aggravated-felony definition in 8 U.S.C. § 1101(a)(43)(F) incorporates the “crime of violence” definition in 18 U.S.C. § 16(a)).

The Court further noted an open question as to whether California carjacking is a theft offense under 8 U.S.C. § 1101(a)(43)(G), and remanded the case for the BIA to consider that issue.

Finally, the opinion also commented that it is unclear whether Becerril-Lopez (which held PC 211 was a COV) remains good law after Johnson.

1/22/18: Very good third-party culpability case

In United States v. Urias Espinoza, --- F.3d ---, No. 16-50033 (9th Cir. 2018), the Court vacated the defendant's conviction for importation of methamphetamine.

The Court held that the district court abused its discretion by applying an incorrect legal standard in excluding evidence of third-party culpability.  To that end, the Court reiterated: “[f]undamental standards of relevancy, subject to the discretion of the court to exclude cumulative evidence and to insure orderly presentation of a case, require the admission of testimony which tends to prove that a person other than the defendant committed the crime that is charged.”

Thus, "all evidence of third-party culpability that is relevant is admissible, unless barred by another evidentiary rule."  The district court, however, excluded otherwise relevant third-part evidence because it was not "coupled with substantial evidence tending to directly connect that person with the actual commission of the offense."  Because this was the wrong standard, the district court necessarily abused its discretion.

There is a very helpful discussion on admitting conviction records of allegedly guilty third parties.  The Court held such documents should not be excluded under Rule 404(b) because they "were relevant to establishing the [third] knowledge and ability."

The Court, however, "caution[ed] that our ruling that the conviction documents were admissible here is not transferable to a situation in which the government seeks to introduce similar evidence with respect to a defendant’s prior crimes under Rule 404(b). This is because “the standard of admissibility when a criminal defendant offers similar acts evidence as a shield need not be as restrictive as when a prosecutor uses such evidence as a sword.”

The Court noted, "[w]here, as here, the evidence is not introduced against a defendant, but rather is introduced by a defendant, the same protective concerns are not implicated."

The Court further explained, "[t]hat the defense’s theory may be speculative is not a valid reason to exclude evidence of third-party culpability."


In other news, the Court issued a new opinion in United States v. Kleinman, --- F.3d ---, No. 14-50585 (9th Cir. 2018).  The new opinion reaches the same result as before (see below for my prior summary) but amends the discussion of jury nullification instructions.

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In United States v. Kleinman, --- F.3d ---, No. 14-50585 (9th Cir. 2017), the Court rejected the defendant's myriad arguments, and affirmed his convictions for for conspiracy to distribute and possess marijuana, distribution of marijuana, maintaining a drug-involved premises, and conspiracy to commit money laundering.  The Court also affirmed his 211-month sentence. 

This case started as a California prosecution of defendants who ran several marijuana collectives in L.A.  After the case was dismissed in state court, the feds picked up ball.  One defendant went to trial.  It did not end well.  

On appeal, he challenged the prosecution, arguing the congressional prohibition on using federal funds to prosecute state  medical marijuana operations should apply to his case. 

Although the Court agreed the prohibition applied to the case, it did not help the defendant, because it only prohibited the expenditure of DOJ funds in connection with a specific charge involving conduct that is fully compliant with state laws regarding medical marijuana.  Here, not all the charges qualified.  And it did not require a court to vacate convictions that were obtained before the rider took effect (the circumstance here). 

Of note, there is a relatively helpful discussion on jury instructions after a defendant makes a nullification argument.  The Court held that the district court erred by instructing the jury that “[t]here is no such thing as valid jury nullification,” and that it “would violate [its] oath and the law if [it] willfully brought a verdict contrary to the law given to [it] in this case.” But the error was harmless.  

There are other issues too.  If you have a medical marijuana case, this decision is a must read.

1/19/17: Helpful Miranda decision

Rarely do I post about a non-Ninth Circuit decision, but People v. Saldana; D071432; 1/12/18; C/A 4th, Div. 1, is worth noting.  

It is Miranda reversal, and thus the standard is the same in both federal and state courts.  As such, the opinion should be useful for federal practitioners as well. 

The case arose out of molestation accusations (and ultimately a conviction).  Although the defendant was told he was not under arrest and could leave, he was aggressively questioned in a police station without Miranda warnings.  

On appeal, the Court found that the defendant was in custody for purposes of Miranda and thus the warnings were required.  Because they were not given, and the purported confession was introduced, the Court vacated the defendant's conviction.  

Its analysis focused on the character of the questioning:

 Saldana's interrogation was persistent, confrontational, and accusatory. Detective Gonzales did much more than simply confront Saldana with adverse evidence. He confronted Saldana with unqualified assertions of his guilt, despite Saldana's repeated denials. Presenting an unwinnable dilemma, the detective persisted in telling Saldana he should identify himself as either a pedophile or an opportunistic molester.

Detective Gonzales's insistence that Saldana was guilty, his disbelief of Saldana's many denials, and his use of classic interrogation techniques reflects the sort of police dominated atmosphere that Miranda warnings were intended to counteract. Detective Gonzales subjected Saldana to a classic two-pronged interrogation. First, involving tactics that suggested Saldana should confess because no other course of action is plausible, such as confronting him with real or invented evidence, identifying contradictions in his account, and refusing to credit his denials. And second, tactics suggesting Saldana will in some way feel better or benefit if he confesses, such as appealing to less morally culpable reasons for committing the offense.  

Over and over again, Detective Gonzales conveyed the message that Saldana had no meaningful choice but to admit to some version of the crime because continued denials—in light of the extensive and irrefutable evidence against him—was simply futile. Insisting on the "truth" until Saldana told him what he sought, the objective message conveyed was that Saldana would be interrogated until he admitted touching the girls.

These tactics are not unusual, nor are they unreasonable. In fact, if Saldana had been properly Mirandized and made the same confession, it might be called good police work. But such an interrogation is associated with "the full-blown interrogation of an arrestee, and except for a Miranda advisement, we cannot conceive how [Saldana's] interrogation might have differed had he been under arrest." 

1/16/18: Washington conspiracy is overbroad

In United States v. Brown, --- F.3d ---, No. 16-30218 (9th Cir. 2018), the Court vacated the defendant's sentence for being a felon in possession of a firearm. In calculating the Guidelines range, the district court determined that a base offense level of twenty applied because the defendant's previous conviction for drug conspiracy under Washington state law qualified as a “controlled substance offense.”

The Ninth Circuit disagreed.  It held the defendant's prior Washington drug conspiracy conviction was not a “controlled substance offense” for purposes of U.S.S.G. 2K2.1(a)(4)(A).  This was because, unlike federal conspiracy, Washington conspiracy includes when the other party to the conspiracy is a law enforcement officer or other government agent who did not intend that a crime be committed.  In other words, the state statute explicitly defined a crime more broadly than the generic definition.

The decision also has good language on harmless error. 

1/11/17: Dismissing jurors and waiver of sentencing claims

In United States v. Dupue, --- F.3d ---, No. 15-10553 (9th Cir. 2018), the Court affirmed the pro se defendant's mortgage fraud convictions and sentence. 

On appeal, the defendant challenged the district court's dismissal of a juror who claimed another juror poisoned him. Although the dismissed juror described himself as the "odd man out," the Court found no abuse of discretion because the dismissal was not based on the juror's view of the merits, but his odd claim of illness and reticence at continuing.

The Court set forth the following rule: "We hold, first, that a trial judge may excuse a juror at any time for any material problem impeding fair deliberations as long as it was not due to the juror’s views of the merits of the case."

More troubling is the Court's conclusion that the pro se defendant affirmatively waived his right to challenge the alleged Guidelines errors.  The Court essentially merged the waiver and plain error doctrines finding: "Depue cannot show plain error in the district court’s calculation of the total offense level because he affirmatively waived his right to challenge the alleged Guidelines errors."

But the waiver was not the typical waiver -- as in the defendant being told he was giving up certain rights.   Rather, it was simply a failure to object along with a statement that the PSR calculation appeared correct.   Nevertheless, the Court construed this as knowing relinquishment of the right to challenge his sentence.  Expect to see the government citing this case often.

1/10/18: A supervised-release revocation hearing is not a criminal proceeding for purposes of the Fifth Amendment right against self-incrimination

In United States v. Hulen, --- F.3d ---, No. 16-30160 (9th Cir. 2018), the Court held that a proceeding to revoke supervised release is not a criminal case for purposes of the Fifth Amendment right against self-incrimination.  Thus, the district court could base the revocation on admissions made during mandatory sex-offender treatment.  In other words, compelled statements can be introduced at revocation hearings.  

Obviously, this has troubling implications.  For example, what if the government tries to force your client to testify against him or herself at a revocation hearing?  

A possible answer comes from in United States v. Antelope, 395 F.3d 1128,1135 (9th Cir. 2005).  There, a probationer refused to detail his sexual history out of fear that he would be charged with new crimes for past actions. The Court upheld the refusal because it had “no doubt,” “that any admissions of past crimes would likely make their way into the hands of prosecutors.”  The Court focused on the possibility that the answers “would incriminate [the defendant] in a pending or later criminal prosecution.” 

The same argument can be made in the revocation context.  If the answer could result in a new prosecution, the privilege should remain. 

Another helpful reminder for appeals: "An appeal of a sentence is not moot where success on the appeal could alter the length or conditions of the supervised release portion of the defendant’s sentence."