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.

7/10/18: Great language for avoiding a trial tax

In United States v. Hernandez, --- F.3d ---, No. 13-10428 (9th Cir. 2018), the Court affirmed in part and vacated in part a 284-month sentence for sexual exploitation of a child.

First, the Court held that the distribution-of-pornography enhancement in U.S.S.G. § 2G2.1(b)(3) applies even when the defendant creates an illicit image of a minor and shares it only with the victim.

But the second part of the opinion has some great language about improperly imposing a higher sentence because the defendant exercised the right to trial. Here are some highlights:

• The Supreme Court has repeatedly emphasized that “[t]o punish a person because he has done what the law plainly allows him to do is a due process violation ‘of the most basic sort.’” We have consistently echoed this principle, including in the context where a district court withholds a reduction for acceptance of responsibility.

• Taken together, these decisions reflect the fundamental principle that for “an agent of the State to pursue a course of action whose objective is to penalize a person’s reliance on his legal rights is patently unconstitutional.

• The district court’s statements run headlong into our precedent “that a judge cannot rely upon the fact that a defendant refuses to plead guilty and insists on his right to trial as the basis for denying an acceptance of responsibility adjustment.

• Enhancing a sentence solely because a defendant chooses to go to trial risks chilling future criminal defendants from exercising their constitutional rights. And imposing a penalty for asserting a constitutional right heightens the risk that future defendants will plead guilty not to accept responsibility, but to escape the sentencing court’s wrath. Although most federal criminal cases result in guilty pleas,4 the Sixth Amendment right to trial remains an important safeguard to defendants who insist on their innocence. Permitting courts to impose harsher sentences on those few defendants who do go to trial could in practice restrict the exercise of the right to those with unusual risk tolerance—or uncommon courage.

7/9/18: Case about baiting ducks in violation of the Migratory Bird Treaty Act

In United States v. Obendorf, --- F.3d ---, No. 16-30188 (9th Cir. 2018), the Court affirmed the defendant's conviction for illegally baiting ducks in violation of the Migratory Bird Treaty Act.

The decision focused on the “agricultural practice exception” set forth in 50 C.F.R. § 20.21(i)(1).

In short, although the parties and the district court erroneously believed the exception was relevant to the charges, the error was harmless.

If you have a case about "duck baiting," you should read this opinion.

Otherwise, here is some helpful language for raising new issues on appeal:

We apply a ‘general rule’ against entertaining arguments on appeal that were not presented or developed before the district court.” But we have discretion to reach waived issues, and we exercise that discretion in three circumstances: (1) “in the ‘exceptional’ case in which review is necessary to prevent a miscarriage of justice or to preserve the integrity of the judicial process”; (2) “when a new issue arises while appeal is pending because of a change in the law”; and (3) “when the issue presented is purely one of law and either does not depend on the factual record developed below, or the pertinent record has been fully developed.”