9/18/18: Wiretap case and certified questions regarding Oregon robbery

Two cases today.

First, in United States v. Estrada, --- F.3d ---, No. 16-50439 (9th Cir. 2018), the Court affirmed the district court’s order denying a wiretap suppression motion. 

The Court held the wiretap was permissible -- i.e., necessary -- even though the government had access to a high-level confidential informant.   The decision is another reminder that the "necessity" requirement is mostly a platitude.

Second, in United States v. Lawrence, --- F.3d ---, No. 17-30061 (9th Cir. 2018), the Court certified the following questions to the Oregon Supreme Court.

1. Is Oregon first-degree robbery, Or. Rev. Stat. § 164.415, divisible?

2. Is Oregon second-degree robbery, id. § 164.405, divisible?

3. Put another way, is jury unanimity (or concurrence) required as to a particular theory chosen from the listed subparagraphs of each statute?

9/13/18: Washington drugs crimes not ACCA predicates & a marijuana case with lots of interesting issues

In United States v. Franklin, --- F.3d ---, No. 17-30011 (9th Cir. 2018), the Court considered whether Washington’s broad accomplice liability statute renders an offense under its drug trafficking law categorically broader than a “serious drug offense,” as that term is defined in the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(A).

The Court held that it did, and thus vacated the defendant's sentence. 

The decision is based on United States v. Valdivia-Flores, 876 F.3d 1201 (9th Cir. 2017), in which the Court held that Washington’s accomplice liability statute renders its drug trafficking law categorically broader than a federal drug trafficking equivalent.  Therefore, the Washington statute was not categorically an “illicit trafficking” offense and, in turn, not an “aggravated felony” under the Immigration and Nationality Act.

This case expands on that decision.  The crux of the inquiry was whether "there [is] any pertinent difference between the 'serious drug offense' description in the ACCA and the generic 'illicit trafficking' described in the statute analyzed in Valdivia-Flores that yields a different result here on the categorical match issue?" 

There was not: "A conviction under Washington’s accomplice liability statute renders its drug trafficking law broader than generic federal drug trafficking laws under the INA and, as we hold now, under the ACCA. Washington’s drug trafficking law is thus not categorically a 'serious drug offense' under the ACCA."

This is an important decision to read, because it rejects a host of government arguments about the categorical approach.

Next, in United States v. Lynch, --- F.3d ---, No. 10-50219 (9th Cir. 2018), a divided Court affirmed the defendant's convictions for running a marijuana business, despite its arguable compliance with state law. 

The decision is too long for me to summarize.  However, there are lengthy discussions of entrapment by estoppel and jury nullification, among myriad other issues.  I'm including the Ninth Circuit's summary below.

The panel (1) affirmed Charles Lynch’s conviction for conspiracy to manufacture, possess, and distribute marijuana, as well as other charges related to his ownership of a marijuana dispensary in Morro Bay, California; (2) on the government’s cross-appeal, remanded for resentencing; and (3) instructed the district court on remand to make a factual determination as to whether Lynch’s activities were in compliance with state law.

The panel held that the district court’s exclusion of testimony from a lawyer about Lynch’s phone call to the DEA, as well as a recording of this lawyer discussing that call on a radio program, was correct because both pieces of evidence were hearsay to which no exception applied.

The panel held that the district court did not abuse its discretion in excluding repetitive and irrelevant evidence about Lynch’s compliance with local laws.

The panel held that evidence of a dispensary employee’s marijuana sale to a government agent was not more prejudicial than probative, and was generally harmless given Lynch’s concession of factual guilt. The panel held that the district court correctly excluded as hearsay a statement the employee made to an investigator that Lynch “didn’t know anything about this deal.”

The panel held that there was no error in the district court’s handling of a number of pieces of evidence that Lynch contends were impermissibly inflammatory, and that any would be harmless.

The panel rejected Lynch’s claim that evidence he subsequently discovered about the United States’ prosecution priorities should have been disclosed to him pursuant to Brady v. Maryland. The panel held that the evidence was not exculpatory of Lynch or otherwise relevant to his case.

The panel held that because Lynch did not show facts providing a basis on which a reasonable jury could find that he was entitled to the defense of entrapment by estoppel, he was not entitled to present that defense in the first place, and the district court did not err in any decisions it made with respect to it.

The panel held that the district court did not commit any error by warning during voir dire against jury nullification. The panel held that the admonition was an appropriate exercise of a district court’s duty to ensure that a jury follows the law, and was additionally justifiable given that the need for the warning was a risk that Lynch’s counsel had invited.

The panel held that the district court did not abuse its discretion in not allowing him to inform the jury of the mandatory minimum sentence that he faced if convicted.

The panel rejected the Lynch’s challenges to the district court’s handling of jury communications because the district court did not actually permit any ex parte communications and the other limitations were reasonable exercises of a district court’s power to manage its trial proceedings.

On the government’s cross-appeal, the panel held that the district court erred in not applying the five-year mandatory-minimum sentence under 21 U.S.C. § 841(b)(1)(B)(viii) on the ground that Lynch was eligible for the safety valve set forth in 18 U.S.C. § 3553(f). The panel held that Lynch was not eligible for the safety valve, given his role leading the dispensary, an organization involving more than five participants; and that Lynch was therefore required to be sentenced to the five-year mandatory minimum. The panel rejected the government’s request that the case be reassigned to another district judge on remand.

The panel did not need to reach the question of whether a congressional appropriations rider (enacted following the filing of this appeal), which this court has interpreted to prohibit the federal prosecution of persons for activities compliant with state medical marijuana laws, operates to annul a properly obtained conviction. The panel explained that a genuine dispute exists as to whether Lynch’s activities were actually legal under California state law, and therefore remanded to the district court for a factual determination as to state-law compliance.

Dissenting, Judge Watford would reverse and remand for a new trial because, in his view, in trying to dissuade the jury from engaging in nullification, the district court violated Lynch’s constitutional right to trial by jury, and the government can’t show that this error was harmless beyond a reasonable doubt.

9/7/18: California robbery is no longer a “crime of violence” under § 16(a) or § 16(b) and lots of good procedural stuff

In United States v. Garcia-Lopez, --- F.3d ---, No. 15-50366 (9th Cir. 2018), the Court vacated the district court’s order denying the defendant’s motion to withdraw his guilty plea to a violation of 8 U.S.C. § 1326.

This case is good on both substance and procedure. 

First, as to substance, the Court held that California robbery (211) is no longer a “crime of violence” under § 16(a) or § 16(b).

Second, as to procedure, this provided the defendant good cause to withdraw his guilty plea, even though he did not raise the argument below.

Here is some of the helpful language for raising claims for the first time on appeal.

"Garcia-Lopez did not raise in the court below the argument that California robbery does not constitute a “crime of violence” under § 16. He raised the issue for the first time on appeal . . . .'We generally review arguments not raised before the district court for plain error.” United States v. 'However, we are not limited to this standard of review when we are presented with [1] a question that is purely one of law and [2] where the opposing party will suffer no prejudice as a result of the failure to raise the issue in the trial court.' Here, the Government has “presented at length before this court” its positions on the two “purely legal question[s]” at issue: whether California robbery constitutes a “crime of violence” under § 16 pursuant to Dimaya, and whether Dimaya, along with other recent case law from this Circuit, provides a 'fair and just reason' for withdrawal of the guilty plea."

"we have repeatedly held that 'issues . . . deemed waived [in the district court] under Rule 12 may be addressed by this court and relief may be granted where good cause is shown for the party’s failure to raise the argument earlier.'"

9/4/18: Two cases today

In United States v. Kechedzian, --- F.3d ---, No. 16-50326 (9th Cir. 2018), the Court vacated the defendant's conviction finding the district court erred by failing to excuse a juror for cause under an actual bias theory.

This is an important case to read, because the district court tried to rehab the juror.  Here's the colloquy:

THE COURT: “[D]oes anyone feel, just based on the charges in this case, based on what this case is about, that they could not be fair and impartial to both sides? Does anyone feel that way at this point in time?”

JUROR # 3: Yes. . . . [A]bout five years ago I had . . . my social security number [stolen.] . . . I might be able to put that aside and just go by what I hear here in the courtroom. THE COURT: “Might” is a significant word. Let’s follow up with it a little bit. Obviously you couldn’t be a juror on the person who stole your identity and social security card. You’d be a bit upset—

JUROR # 3: Absolutely not.

THE COURT: You would be quite upset about that. But I guess the question becomes not just maybe. We need to know whether or not you are going to decide this case based on what happened to you and your social security number. What do you think?

JUROR # 3: Well, I would want to put my personal stuff aside, but I honestly don’t know if I could.

THE COURT: So will you tell us if you can’t, if all of a sudden you go through this case and you say you know what? My social security number is popping up in my head, and I’m going to decide this case based on what happened to me? Would you tell us that?

JUROR # 3: No, I would try to be fair . . . and put my personal experience aside. THE COURT: But if it turns out you’re going through this process and you feel you can’t— it’s not working, would you tell us?

JUROR # 3: Yes, I would.

THE COURT: Okay. All right.

The Ninth Circuit held this was not sufficient: "at bottom, Juror # 3’s statements do not provide any assurance that she was, or could have been, impartial."

Next in United States v. Peterson, --- F.3d ---, No. 17-30084 (9th Cir. 2018), the Court affirmed the district court's denial of the defendant's motion to suppress but reversed his sentence.

As to the motion to suppress, the issue revolved around the alleged inevitable discovery of a gun in the defendant's backpack.  The Court assumed the search was not a valid search incident to arrest, but concluded the gun would have been discovered: 

"Because the officers would have booked Peterson on obstruction or resisting arrest charges absent discovery of the gun, and because bail had not yet been set on those charges, Peterson would have been taken into custody upon booking.  The evidence demonstrates that it is standard procedure to inventory a defendant’s possessions at the time of booking if the King County jail will not accept the item and the arrestee will be taken into custody." 

In other words, the Court concluded an inventory search was inevitable.

As to the sentence, the Court held that Washington first-degree robbery (§ 9A.56.190) is not a crime of violence under U.S.S.G. §§ 2K2.1(a)(2) and 4B1.2.  Specifically, because Washington robbery encompasses threats to property, it does not fall categorically within generic robbery.  Further, the Washington robbery statute is not a categorical match for extortion because it allows for a conviction to rest on fear of injury to property alone.