5/29/30 - Two SCOTUS Decisions - one on the 4th Amend, the other on restitution

In Collins v. Virginia, 584 U.S. ---, No. 16-1027 (2018), the Court considered "whether the automobile exception to the Fourth Amendment permits a police officer, uninvited and without a warrant, to enter the curtilage of a home in order to search a vehicle parked therein."

The Court held, "it does not."

In reaching this conclusion, the Court reviewed both the automobile exception and its own curtilage jurisprudence. It reiterated that, "[w]hen a law enforcement officer physically intrudes on the curtilage to gather evidence, a search within the meaning of the Fourth Amendment has occurred. Such conduct thus is presumptively unreasonable absent a warrant."

The Court further noted, "the scope of the automobile exception extends no further than the automobile itself." Moreover, “any valid warrantless seizure of incriminating evidence” requires that the officer “have a lawful right of access to the object itself.”

Here, officers did not have such a right. Thus, the search was improper.

Next, in Lagos v. United States, 584 U.S. ---, No.16-1519 (2018), the Court considered whether, under the Mandatory Victims Restitution Act, the words “investigation” and “proceedings” are limited to government investigations and criminal proceedings, or whether they include private investigations and civil proceedings.

As relevant, the Act provides that defendants must “reimburse the victim for lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.” 18 U.S.C. §3663A(b)(4) (emphasis added).

The Court held that, in this context, restitution is limited to expenses incurred in connection with government investigations and criminal proceedings. Thus, the defendant could not be ordered to pay restitution for expenses resulting from private investigations or participation in corollary bankruptcy proceedings.

5/16/18: Divided panel affirms life sentence for crime committed as a juvenile

In United States v. Briones, --- F.3d ---, No. 16-10150 (9th Cir. 2018), a divided panel affirmed the defendant's life sentence based on a murder in which he participated when he was 17.

The dissent agreed with much of the majority's reasoning, but compellingly argued the district court failed to account for the Supreme Court's clear direction that "the Eighth Amendment bars life-without-parole sentences for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.” Montgomery v. Louisiana, 136 S. Ct. 718, 734 (2016) (citing Miller v. Alabama, 567 U.S. 460 (2012)).

5/15/18: Case about bank robbery resulting in death

In United States v. McDuffy, --- F.3d ---, No. 16-10520 (9th Cir. 2018), the Court held that, under 8 U.S.C § 2113(e), the enhanced punishment (life or death) for an individual who kills a person in the course of committing a bank robbery does not require proof of a separate mens rea (i.e, the defendant knowingly killed). Rather, the only mens rea required is the mens rea necessary to commit the underlying bank robbery. Thus, the enhanced punishment applies even when the bank robber accidentally kills someone.

The opinion contains broad language about sentencing provisions: "the presumption in favor of scienter is lessened, if not altogether absent, when considering sentencing enhancement provisions." Be wary of this statement. I don't think it is the last time we will see it.

5/14/18: A busy day at the SCOTUS

Today brings five opinions from the Supreme Court.  There is certainly good -- e.g., the Byrd 4th Amendment decision -- but for us in the Southern District, the Sanchez-Gomez (shackling) decision is a huge disappointment.

I will touch on each of the decisions, but let's begin with and focus on Byrd v. United States, 584 U.S. ---, No. 16-1371 (2018).  In Byrd, the "Court granted certiorari to address the question whether a driver has a reasonable expectation of privacy in a rental car when he or she is not listed as an authorized driver on the rental agreement." 

The Court held that, "as a general rule, someone in otherwise lawful possession and control of a rental car has a reasonable expectation of privacy in it even if the rental agreement does not list him or her as an authorized driver." However, it remanded for further proceedings to determine: (1) whether, "in the circumstances here, Byrd had no greater expectation of privacy than a car thief. If that is so, our cases make clear he would lack a legitimate expectation of privacy;" and (2) "whether, even if Byrd had a right to object to the search, probable cause justified it in any event."

Of note, the Court decided the case under the Katz (reasonable expectation of privacy) rubric.  It decided not to consider the defendant's common-law property interest claim, because it was not raised below.

Perhaps the most far-reaching impact of the opinion is its rejection of the argument that a boilerplate rental agreement controls the expectation-of-privacy inquiry: "True, this constitutes a breach of the rental agreement, and perhaps a serious one, but the Government fails to explain what bearing this breach of contract, standing alone, has on expectations of privacy in the car."

This part of the analysis will likely be applied to other private agreements, such as terms of service agreements for Google or FaceBook.

Beyond this issue, the Court also reminds us: "The concept of standing in Fourth Amendment cases can be a useful shorthand for capturing the idea that a person must have a cognizable Fourth Amendment interest in the place searched before seeking relief for an unconstitutional search; but it should not be confused with Article III standing, which is jurisdictional and must be assessed before reaching the merits. Because Fourth Amendment standing is subsumed under substantive Fourth Amendment doctrine, it is not a jurisdictional question and hence need not be addressed before addressing other aspects of the merits of a Fourth Amendment claim."

Moving on.

In United States v. Sanchez-Gomez, 584 U.S. ---, No. 17-312 (2018), the Court vacated the Ninth Circuit's en banc decision striking down as unconstitutional the Southern District's policy on pre-trial shackling of defendants.  The Supreme Court did not rule on the merits.  Instead, it found the case was moot because "before the [Ninth Circuit] court could issue a decision, [the defendant's] underlying criminal cases came to an end."

So, is there any way to challenge the shackling policy?  According to the opinion: "None of this is to say that those who wish to challenge the use of full physical restraints in the Southern District lack any avenue for relief. In the course of this litigation the parties have touched upon several possible options. See, e.g., Tr. of Oral Arg. 12 (indicating circumstances under which detainees could bring a civil suit). Because we hold this case moot, we take no position on the question."

Next, in McCoy v. Louisiana, 584 U.S. ---, No. 16-8255 (2018), the Court held that, in a capital case, "a defendant has the right to insist that counsel refrain from admitting guilt, even when counsel’s experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty. Guaranteeing a defendant the right 'to have the Assistance of Counsel for his defence,' the Sixth Amendment so demands. With individual liberty—and, in capital cases, life—at stake, it is the defendant’s prerogative, not counsel’s, to decide on the objective of his defense: to admit guilt in the hope of gaining mercy at the sentencing stage, or to maintain his innocence, leaving it to the State to prove his guilt beyond a reasonable doubt."

The Court further held that a violation of this right is structural error requiring reversal. 

In Dahda v. United States, 584 U.S. ---, No. 17-43 (2018), the Court considered whether a wiretap order that authorized interception beyond the District Court’s territorial jurisdiction rendered the order “insufficient on its face,” such that suppression was required under 18 U.S.C. §2518(10)(a)(ii).  The Court noted that none of the communications unlawfully intercepted outside the judge’s territorial jurisdiction were introduced at trial.  Moreover, the remainder of the order was itself legally sufficient.  Thus, the Court held the wiretap order was not  “insufficient” on its “face.” 

Finally, in Murphy v. National Collegiate Athletic Assn, 584 U.S. ---, No. 16-476 (2018), the Court found unconstitutional under the anticommandeering doctrine the Professional and Amateur Sports Protection Act, which generally makes it unlawful for a State to “authorize” sports gambling schemes. 28 U. S. C. §3702(1).  

"The PASPA provision at issue here—prohibiting state authorization of sports gambling—violates the anticommandeering rule. That provision unequivocally dictates what a state legislature may and may not do."

5/14/18: Good case on inventory searches

In United States v. Johnson, --- F.3d ---, No. 15-30222 (9th Cir. 2018), the Court reversed the district court's denial of the defendant's suppression motion and vacated his conviction.

The defendant argued that the officers' "inventory search" of his car was pretextual -- i.e., it was not intended to catalogue and secure his property, but was instead used to find evidence of a crime.

The Court agreed.  Indeed, as it pointed out, the government essentially conceded that point before the district court.

Accordingly, under United States v. Orozco, 858 F.3d 1204 (9th Cir. 2017) -- which held the subjective motivations matter in the context of that administrative searches conducted without individualized suspicion -- the inventory search was improper.

The opinion was published as a per curiam, with Judges O'Scannlain and Bea specially concurring to argue that Orozco should be overruled en banc.

Judge Paez also specially concurred to argue that Orozco was correctly decided.

We shall see what happens next.

p.s., I will be writing an update about today's SCOTUS decisions a bit later.

5/9/19: Lengthy death penalty opinion

In United States v. Mikhel, --- F.3d ---, Case No. 07-9908 (9th Cir. 2018), the Court affirmed the defendants' convictions and death sentences under the Federal Death Penalty Act. 

This is a rare federal death penalty case (not a 2254 from state court).

The opinion is 121 pages.  I'm not going to summarize it.  Instead, below is the summary cut and pasted from the Ninth Circuit.

Guilt Phase

The panel reaffirmed that the Hostage Taking Act does not require proof of a nexus to international terrorism. The panel held that the Act was a valid exercise of Congress’s power under the Necessary and Proper Clause together with the Treaty Power, and rejected as unavailing the defendants’ independent Tenth Amendment challenge.

The panel rejected as meritless the defendants’ argument that even if the Act does not itself exceed Congress’s power, the subsequent amendment authorizing the death penalty exceeded Congress’s power. The panel held that the defendants’ motion for recusal of the district judge was untimely and fails on its merits.

Affirming the district court’s rejection of the defendants’ Batson challenge to the government’s peremptory strike of a juror, the panel held that the defendants did not meet their burden of demonstrating race was a substantial motivating factor.

The panel held that the district court committed no error in empaneling an anonymous jury.

The panel held that the district court did not violate the defendants’ Sixth Amendment right to a public trial by excluding from the courtroom a person who was observed behaving in an intimidating manner.

The panel held that the district court did not err in using this circuit’s model reasonable-doubt jury instruction in the guilt phase.

The panel explained that the purpose of 18 U.S.C. § 3005, under which a capital defendant has the right to two counsel, is not undermined by one attorney’s de minimis absence from trial, and that any error stemming from the three-day absence from trial of one of Mikhel’s attorneys was harmless. The panel held that the district court’s denial of Kadamovas’s motions for a continuance to allow one of his attorneys more time to prepare did not violate § 3005, and that any technical error would be harmless.

The panel held that the district court did not abuse its discretion in excluding as irrelevant testimony of a person who, without repercussion, committed perjury as a cooperating witness in a different case.

The panel held that the district court did not plainly err by failing to hold a competency hearing sua sponte at the outset of trial, at the end of the guilt phase, and during the penalty phase.

The panel rejected Kadamovas’s claim that under Bruton v. United States Mikhel’s testimony and refusal to be cross examined violated Kadamovas’s Sixth Amendment Confrontation Clause rights. The panel wrote that because Mikhel’s testimony did not facially incriminate Kadamovas, the testimony did not trigger the Bruton rule, and it must be assumed that the jury followed the district court’s instruction to disregard Mikhel’s testimony. The panel concluded that any error in this regard was harmless.

The panel held that the district court did not abuse its discretion in denying Kadamovas’s motions for complete severance of his case from Mikhel’s or in denying his requests for sequential penalty phases.

Rejecting Kadamovas’s evidentiary challenges to his conviction for conspiracy to escape, the panel held (1) that the district court did not err under Fed. R. Evid. 608(b) or the Confrontation Clause in limiting the defense’s cross examination of a cooperating witness; and (2) that the erroneous admission of a letter that was inadmissible hearsay was harmless.

The panel held that the record supports the district court’s determination that there was no pattern of Kadamovas being denied computer access to review discovery materials as contemplated by a stipulation with the government.

Penalty Phase

The panel held that the district court did not plainly err by using this circuit’s model reasonable-doubt jury instruction in the penalty phase.

The panel rejected the defendants’ contention that the Eighth Amendment and the Federal Death Penalty Act only permit evidence of a victim’s personal characteristics in penalty proceedings to the extent they influenced, and thus reveal something about, the relationship the victim had with his or her family. The panel held that the district court did not commit plain error in failing to exclude evidence of a victim’s religion in the context of his commitment to his family and celebration of life.

The panel rejected some of the defendants’ contentions as to the propriety of the government’s remarks in penalty-phase closing arguments, but agreed with the defendants that the government should not have compared prison life to the victims’ deaths. On plain error review, the panel held that the latter statements did not so affect the jury’s ability to consider the totality of the evidence fairly that it tainted the verdict and deprived the defendants of a fair trial.

Assuming without deciding that there was error in the district court’s jury instruction and verdict form on the nonstatutory aggravating factor of future dangerousness, the panel held that any error was harmless.

The panel rejected the defendants’ claim that the government commented on their failure to testify at trial in violation of their Fifth Amendment rights under Griffin v. California.

Regarding Kadamovas’s contention that the government, in questioning a witness, appealed to ethnic prejudice in violation of Kadamovas’s Fifth Amendment right to a fair trial, the panel held that there was no plain error.

The panel held that the district court did not abuse its discretion in excluding an interview with Mikhel’s exgirlfriend, offered as mitigating evidence. The panel held that the district court did not abuse its discretion in excluding a portion of an interview with Mikhel’s cousin whose plea for mercy was essentially an opinion about what the jury’s verdict should be.

The panel held that the jury could have reasonably relied on the government’s guilt-phase evidence to conclude that Kadamovas presented a risk of future dangerousness beyond a reasonable doubt.

The panel held that the district court did not abuse its discretion in admitting an antique dagger with swastikas on the handle, and did not commit plain error by admitting testimony that Kadamovas referred to the victim as a “fat Jew.”

The panel rejected Kadmovas’s argument that the jury’s failure to find the mitigating factor that he had no prior criminal record demonstrates that it disregarded its statutory obligation to consider mitigating factors and therefore rendered an arbitrary verdict. The panel explained that the jury was not required to find any mitigating factor, and held that the jury’s failure to find that Kadamovas had no prior criminal record was reasonable.

5/7/18: Insufficient evidence for drug conspiracy

In United States v. Espinoza-Valdez, --- F.3d ---, No. 16-10395 (9th Cir. 2018), a divided panel vacated the defendant's drug-conspiracy conviction.  The majority opinion is relatively short and worth the read. 

Here's the conclusion:

While it is possible, perhaps even probable, that Espinoza-Valdez was on the mountaintop to act as a scout for drug traffickers, a reasonable suspicion or probability of guilt is not enough. Guilt, according to the basic principles of our jurisprudence, must be established beyond a reasonable doubt. Here, it was not: Viewing the entirety of the evidence in the light most favorable to the government, there was insufficient evidence upon which a reasonable mind might fairly find the existence of a conspiracy to import or distribute marijuana — or of Espinoza-Valdez’s agreement to join such a conspiracy — beyond a reasonable doubt.

The majority explained the government could not rely almost entirely on drug-courier profile evidence: "A drug expert’s testimony cannot substitute for witnesses who actually observed or participated in the illegal activity. Nor can it be permitted to so submerge the factual evidence that its unfair prejudicial effect substantially outweighs any probative value it might have."

5/4/18: 10th Cir finds 924(c)'s crime of violence residual clause unconstitutional under Dimaya

In United States v. Salas, --- F.3d ---, No. 16-2170 (10th Cir. 2008), the Tenth Circuit vacated the defendant's conviction and sentence for using a destructive device in furtherance of a crime of violence, a violation of 18 U.S.C. 924(c). 

Even on plain-error review, the Court found that Dimaya’s reasoning for invalidating § 16(b) applies equally to § 924(c)(3)(B).  In other words, the reasons why § 16(b) is unconstitutionally vague apply equally to § 924(c)(3)(B).

5/2/18: Case about attempting to smuggle ammunition from the United States, in violation of 18 U.S.C. § 554(a).

In United States v. Rivero, --- F.3d ---, No. 17-10114 (9th Cir. 2018), the Court affirmed the defendant's conviction for attempting to smuggle ammunition from the United States, in violation of 18 U.S.C. § 554(a).

The statute criminalizes fraudulently or knowingly exporting or attempt to export any “merchandise, article, or object” contrary to any law or regulation of the United States.

The district court refused to instruct the jury that § 554(a) required the government prove that the defendant knew he was exporting ammunition. Rather, it instructed merely that the attempt to export had to be knowing. In other words, so long as the defendant knew he was exporting some item, the jury could convict, even if the defendant did not know what item he was exporting or that it was illegal to export that item.

The panel held that the district court did not err in its instructions, because § 554 does not require the government to prove that the defendant knew the nature of the “merchandise, article, or object” that the defendant was exporting contrary to law.