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.
