3/23/18: Case about hearsay exceptions for prior consistent statements and statements for medical diagnosis.

In United States v. Kootswatewa, --- F.3d ---, No. 16-10228 (9th Cir. 2018), the Court affirmed the defendant's conviction for sexually abusing a developmentally delayed 11-year-old girl.

First, it held the district court properly admitted  the girl's statements to a nurse practitioner concerning the nature of the abuse and the identity of her abuser.   This was permissible under Fed. R. Evid. 803(4) as a statement made for purposes of medical diagnosis.  The Court further held the statement about the identity of the abuser was permissible because "medical providers need to know who abused a child in order to protect her from future abuse at the hands of the same perpetrator, and to assist in diagnosing and treating the psychological and emotional injuries caused by sexual abuse."

Second, the Court held the district court properly admitted, in the government's rebuttal case, the girl's statements to a law enforcement officer about what happened, in order to rebut defense counsel’s suggestion that her in-court testimony had been tainted by her mother’s alleged coaching.

The testimony came in under Fed. R. Evid. 801(d)(1)(B)(i), as a prior consistent statement.  To this end, the Court held that, under the Rule, testimony is admissible even if the prior statement tends to rebut just one of the improper motives or influences suggesting by the opposing party.  The Court also held that, although the prior statement differed from the trial testimony as to the location of the abuse, it was sufficiently consistent as to the nature of what occurred.

Finally, the Court rejected the defendant's argument about prosecutorial misconduct in closing.

3/13/18: A case about venue

In United States v. Obak, --- F.3d ---, No. 16-10362 (9th Cir. 2018), the Court affirmed the defendant's drug related convictions. 

The convictions were based on an attempt to import meth into Guam.

The Court rejected the defendant's claim that the district court lacked jurisdiction or that venue was improper in Guam. 

The good part of the opinion is the reminder that, although the defendant waived any objection to a defect in venue, the government, by not raising the waiver issue in its answering brief, waived its ability to rely on the defendant’s waiver.   In other words, the government can, and did, waive the waiver.

3/9/18: A good minor role decision & an opinion on 11378 in the 1326(d) context

Good news first.

In United States v. Aguilar Diaz, --- F.3d ---, No. 16-50102 (9th Cir. 2018), the Court vacated the defendant's sentence finding the district court erred in denying minor role.

This is a must read.  It has lots of good language about how, post-Quintero-Leyva,  the district court must examine the relevant participants.  Especially helpful is that the district court cannot penalize the defendant for his or her lack of knowledge: 

We conclude that Amendment 794 did not change the size of the appropriate comparison group—it remains impermissible to compare a defendant’s conduct to that of the hypothetical average participant—but Amendment 794 makes clear that when a defendant knows little about the scope and structure of the criminal enterprise in which he was involved, that fact weighs in favor of granting a minor-role adjustment.

"Although the district court has considerable latitude in ruling on minor-role adjustments, see id., on this record we must remand for re-sentencing because the decision to deny the adjustment rested on incorrect interpretations of the § 3B1.2 Guideline and Amendment 794. The difficulty is that the district court adopted the government’s argument with little elaboration, and the government’s argument included an incorrect interpretation of § 3B1.2 and Amendment 794. First, the government relied on the fact that Aguilar Diaz agreed to accept money in exchange for transporting drugs, but ignored that his compensation was relatively modest and fixed. There was no evidence that Aguilar Diaz had a proprietary interest in the outcome of the operation or otherwise stood to benefit more than minimally. Second, though the government correctly identified Peter and Rodriguez as the comparison group, it did not account for Aguilar Diaz’s limited understanding of the overall “scope and structure of the criminal operation.”

Congrats to Sam Eilers from FDSDI.

Moving on.

In United States v. Verduzco-Rangel, --- F.3d ---, No. 15-50559 (9th Cir. 2017), the Court affirmed the defendant's illegal reentry conviction.

It held that the defendant's prior removal was valid because the predicate conviction was an aggravated felony: "a conviction under section 11378 is an aggravated felony for purposes of § 1227(a)(2)(A)(iii) where, as here, the record of conviction establishes that the substance involved was federally controlled, and affirm Verduzco’s conviction."

The Court began with the familiar -- that 11378 is not a categorical match for the drug trafficking aggravated felony:  "California’s statute is not a perfect categorical match . . . because, although California’s list of controlled substances is nearly identical to those contained in the federal statutes and schedules that the INA references, California law also criminalizes trafficking in a few obscure substances that federal law does not, such as chorionic gonadotropin (a performance enhancing drug also banned in many sports)."

The Court then applied the modified approach to find the substance was methamphetamine. 

More interesting, the Court rejected the defendant's argument that "California conviction is not categorically an aggravated felony because section 11378 remains broader than federal law as to defendants’ beliefs about the kind of substance in which they were trafficking. Under federal law, a person actually selling cocaine who thought he was selling baking soda does not possess the required mens rea to be guilty of drug trafficking. Under section 11378, defendants can be found guilty even if they were mistaken about what specific substance was being trafficked, as long as the substance in which they intended to traffic is in fact controlled under California law.  This means that a person who believed she was trafficking in chorionic gonadotropin but was in fact trafficking in methamphetamine would violate California law but not federal law."

The Court, however, found that it "need not consider whether a state drug crime would also be punishable under federal law.  Rather, it is sufficient that the state statute contains an 'illicit trafficking' element, which section 11378 clearly does."

Thus, the Court held: "Because section 11378 has a trafficking element and requires a sufficiently culpable state of mind, section 11378 is a drug trafficking aggravated felony under § 1101(a)(43)(B) where the record of conviction establishes that the substance involved is federally controlled. Thus, removal under § 1227(a)(2)(A)(iii) based on such a conviction under section 11378 is not fundamentally unfair."

3/5/18: "Adkins had the misfortune of being sentenced prior to this change."

That is a one way to put it.

In United States v. Adkins, --- F.3d ---, No. 15-10566 (9th Cir. 2018), the Court affirmed the defendant's conviction and 210-month sentence as a career offender.

After an in-prison assault over a drug debt, the government charged the defendant with committing a Violent Crime in Aid of Racketeering in violation of 18 U.S.C. §§ 1959(a)(3), (2).  Specifically, the indictment alleged he knowingly committed an assault “in violation of [s]ection 707-710 of the Penal Code of the State of Hawaii.”

At trial, the defendant asked the district court to instruct on the state-law definition of knowingly, which included a self defense component.  The district court instead instructed on the federal definition.

The Ninth Circuit found error, but concluded it was harmless: "Adkins was deprived of a self-defense instruction found within the Hawaii state definition, but not the federal definition. 'Confusion and unfairness' most certainly arises when a jury lacks an instruction that contains this specific defense, and 'an appellate court would have no way of knowing what the jury found the defendant’s state of mind to be.' Thus, the district court erred when it instructed the jury on the federal definition that lacked a self-defense instruction."

As to the sentencing issues, the Ninth concluded that, under the now-delated residual clause of the carer offender provision, the defendant’s prior Hawaii convictions for unlawful imprisonment in the first degree and burglary in the first degree qualified as crimes of violence. 

The Court declined to apply the amendment deleting the residual clause, concluding it was a substantive change, not a clarification. 

In short, due solely to the timing of his sentence, the defendant was punished as a career offender. 

3/2/18: Washington attempted murder is a crime of violence.

In United States v. Studhorse, --- F.3d ---, No. 16-30299 (9th Cir. 2018), the Court held that, under the categorical approach, attempted first degree murder under Washington law constitutes a “crime of violence” under 18 U.S.C. § 16(a) because it requires specific intent and has as an element an intentional, threatened, attempted, or actual use of force. Further, it is also a “crime of violence” under USSG § 4B1.2(a).

2/28/17: Two good supervised release cases

In United States v. Cambell, --- F.3d ---, No. 17-50140 (9th Cir. 2017), the Court considered the scope of 18 U.S.C. § 3583(i), which extends the power to revoke a term of supervised release even after the term has expired.

In its words, "we must consider, as a matter of first impression in this circuit, the parameters of 18 U.S.C. § 3583(i), which extends the power of a court to revoke a term of supervised release even after the term has expired. More specifically, we must settle whether a court may base a revocation upon violations which (1) were not alleged prior to the expiration of the supervision period, and (2) are not otherwise factually related to any matter raised before the court during the supervision period. For the reasons explained below, we conclude that district courts are not so empowered."

"we must decide the outer-limits of a court’s extended revocation power under § 3583(i) with respect to post-supervision allegations which are factually unrelated to matters raised during a defendant’s term of supervision. As to this issue, we are not convinced by the government’s arguments concerning the relevance of the statutory text “such a violation.”

The Court found congressional "intent to limit the universe of violations alleged post-expiration which a court is empowered to adjudicate under 18 U.S.C. § 3583(i) to only those which are factually related to matters raised in a signed warrant or summons issued before expiration."

In short, 18 U.S.C. § 3583(i) does not empower a district court to base a revocation upon violations which (1) were not alleged prior to the expiration period and (2) are not otherwise factually related to a matter raised in a signed warrant or summons issued before expiration.

In United States v. Evans, --- F.3d ---, No. 16-10310 (9th Cir. 2018), the most salient part is that the Court struck down several standard conditions of supervised release as unconstitutionally vague.  

Specifically, the Court remanded for the district court to: (a) remove the phrase “meet other family responsibilities” from Standard Condition 4, (b) remove an ambiguity in Standard Condition 5, which requires the defendant to work “regularly” at a lawful occupation, and (c) amend Condition 13 – which requires the defendant, as directed by the probation officer, to notify third parties of risks that may be occasioned by his criminal record or personal history or characteristics – in order to provide some determinate guidance to the defendant’s probation officer, as well as to the defendant.

Although these conditions have been amended by the Sentencing Commission, the opinion is still worth reading.