4/30/18: 5th amendment does not apply to law enforcement questions to a supervisee about compliance with conditions of supervision

In United States v. Misraje, --- F.3d ---, No. 15-50543 (9th Cir. 2018), the Court affirmed the district court revocation of the defendant's supervised release.

First, the Court rejected the defendant's unreasonable-delay claim. It noted that such a claim is cognizable when there is an unreasonable delay in bringing revocation proceedings after the factual basis for the pertinent violations was known. However, here, the delay was caused by the defendant misleading his PO.

Second, the Court rejected the defendant's claim that his inculpatory statements were improperly coerced. It held, the Fifth Amendment privilege does not apply to law enforcement questions to a supervisee about compliance with conditions of supervision.   

[Of note, this seems particularly troubling if the questions go to a suspected crime]

Finally, the Court held the defendant violated the computer “use” condition when he possessed and availed himself of the functions of his friend’s smart phone.

4/25/18: Brady / Giglio case

In United States v. Garrison, --- F.3d ---, No. 15-50137 (9th Cir. 2018), the Court affirmed the defendant's convictions arising out of the over prescription of Oxy at a pill mill.

As a legal matter, the case does not contain anything new.

First, the Court rejected the defendant's sufficiency claim.

Second, the Court approved the district court's remedies for the government's late disclosures.  It explained, "[d]istrict courts have discretion in shaping the remedies for Brady and Giglio violations."

The district court, among other remedies, instructed the jury:

Under the United States Constitution, in order for the defendant to receive a fair trial, the Government must inform the Defense of any information known to the Government that tends to suggest the defendant might not have committed the crimes or crime charged . . . and any information that casts doubt on the credibility of the Government’s own evidence. In this case, the Government violated those important Constitutional principles upon which the fair administration of our system of justice depends on multiple occasions. In evaluating the merits of this case, you can decide what weight, if any, to give to the Government’s violations of these Constitutional principles. The Government’s actions standing alone or in combination with other facts presented in this case, may create a reasonable doubt in your mind about the defendant’s guilt. 

Finally, that the late disclosures resulted in dismissal of charges against other defendants was not determinative.  On the facts, the defendants were differently situated.

4/17/18: "As THE CHIEF JUSTICE’s valiant attempt to do so shows, that would be slicing the baloney mighty thin."

The subject line of this email is from Justice Kagan's majority opinion in Sessions v. Dimaya, --- U.S. ---, No. 14-1498 (2018).

In Dimaya, the Supreme Court affirmed the Ninth Circuit's determination that the residual clause in 18 U.S.C. 16(b) (defining a crime of violence) is unconstitutionally vague under the principles announced in Johnson (as a reminder, Johnson dealt with the similarly worded residual clause under the ACCA, 18 U.S.C. 924(e)).  

The majority rejected the government's request to distinguish the two residual clauses, explaining: "'Insanity,' Justice Scalia wrote in the last ACCA residual clause case before Johnson, 'is doing the same thing over and over again, but expecting different results.' We abandoned that lunatic practice in Johnson and see no reason to start it again."  

This case has important practical implications in both criminal and immigration contexts.  A prior conviction can never qualify as a federal predicate crime of violence under the residual clause in section 16(b). 

Of further note, Justice Gorsuch writes an important concurrence in support of the vagueness doctrine.  He ends by declaring, "A government of laws and not of men can never tolerate that arbitrary power."  It is worth the read. 

In other news, in United States v. Arpaio, --- F.3d ---, No. 17-10448 (9th Cir. 2018), the Court appointed a special prosecutor to defend the district court's decision -- post presidential pardon -- to deny vacatur of the criminal-contempt conviction (instead the district court simply dismissed the proceedings).  The appointment was necessary because the government indicated it would not defend the appeal. 

The order did not reach the merits of the appeal, finding only that the Court had authority to appoint counsel under Fed. R. Crim. P. 42(a)(2); and that, independently, it had inherent authority to appoint a special counsel to represent a position abandoned by the United States on appeal.

4/13/18: Case about supervised release aggregation

In United States v. Shimabukuro, --- F.3d ---, No. 17-10339 (9th Cir. 2018), the Court held that "intermittent confinement" -- e..g, weekends in jail imposed as a condition of supervised release -- counts against the custodial-time cap in 18 U.S.C. § 3583(e)(3) (2002) that a district court may impose when revoking a defendant’s supervised release.  In other words, all the weekends add up toward the aggregate amount of custody that can be imposed.

Also noteworthy, is footnote 2: "The district court may have erred in imposing intermittent confinement as a condition of supervised release."

4/5/18: Case about injunction of marijuana prosecution.

Previously, in United States v. McIntosh, 833 F.3d 1163, 1177 (9th Cir. 2016), the Ninth Circuit held that defendants may seek to enjoin the expenditure of federal funds on federal drug trafficking prosecutions of individuals who engaged in conduct authorized by state medical marijuana laws and who fully complied with such laws.

Unfortunately for the defendants in the case decided today, United States v. Gilmore, --- F.3d ---, No. 17-10142 (9th Cir. 2018), the holding of McIntosh does not extend to marijuana grows on federal land, even if the defendants were inadvertently on federal property.   Thus, the Court affirmed the district court’s denial of a motion to enjoin the government’s prosecution of the two defendants charged with conspiracy to manufacture marijuana plants and manufacture of marijuana plants, because the grow took place on federal land.