10/25/18: Interesting assault case

In United States v. Moreno Ornelas, --- F.3d ---, No.15-10510 (9th Cir. 2018), the Court affirmed the defendant’s convictions for assault on a federal officer (and related charges) but reversed his convictions for attempted robbery.

The opinion begins: "On a summer day in the Arizona desert, not far from our country’s southern border, United States Forest Service Officer Devin Linde (“Linde”) encountered Defendant-Appellant Jesus Eder Moreno Ornelas (“Moreno”). A struggle ensued. Afterwards, each man claimed that the other had forced him into a fight for his life. Moreno was convicted at trial of multiple federal crimes. We reverse his convictions for attempted robbery of Linde’s gun and vehicle because there was plain error in the jury instructions on those counts, but we otherwise affirm."

As to the reversal, a divided panel concluded the district court plainly erred in failing to instruct the jury on specific intent.  It explained, the federal robbery statute, 18 USC 2112, simply codified the common law crime.  And “Common law robbery was . . . a specific intent crime.”  Thus, given the well-settled elements of common law robbery as well as [the Supreme Court's] clear indication that § 2112 incorporates the common law, failing to instruct the jury on specific intent was an obvious omission.

As to the other counts of conviction, the Court rejected the defendant’s arguments:  "Moreno urges us to reverse all of his remaining convictions on the ground that the jury instructions given at trial failed to present resistance to excessive force as a defense, and that the instructions thus failed to cover his theory of the case. Second, Moreno challenges his convictions for assault on a federal officer under 18 U.S.C. § 111 and for use of a firearm during and in relation to a crime of violence (the assault) under 18 U.S.C. § 924(c), contending that the instructions improperly defined 'official duties.' Neither argument is persuasive.”

Finally, the Court found no error in the district court’s exclusion of the defendant’s expert based on his untimely expert notice, just days before trial.

As noted, this was a split decision with two dissents on different issues.  It is worth a read for any assault cases.

10/23/18: search warrants beyond the judge’s territorial authority

In United States v. Henderson, --- F.3d ---, No. 17-10230 (9th Cir. 2018), the Court affirmed the district court's denial of the defendant's motion to suppress. 

This was a CP case focused on the dark website, playpen. 

The government obtained a Network Investigative Technique (“NIT”) warrant from a magistrate judge in the Eastern District of Virginia, which authorized the search of all “activating” computers—that is, those of any website visitor, wherever located, who logged into Playpen with a username and password.

"The NIT technology is computer code consisting of a set of instructions. When a person logged into the Playpen site, the NIT caused instructions to be sent to his computer, which in turn caused the computer to respond to the government-controlled server with seven pieces of identifying information, including its IP address. The NIT mechanism allowed the FBI, while controlling the website from within the Eastern District of Virginia, to discover identifying information about activating computers" anywhere they happened to be located.

As a result, via the warrant, the government obtained the defendant's IP address, and then his home address.

The first issue on appeal concerned the validity of the warrant.  Joining its sister Circuits, the Court held the warrant was invalid under Rule 41, because it authorized a search outside of the issuing magistrate judge’s territorial authority.  The Court further concluded the Rule violation was not merely a technical mistake, but went to the magistrate judge’s jurisdiction to act in this case.

Thus, the Court held, a warrant authorizing a search beyond the jurisdiction of the issuing magistrate judge is void under the Fourth Amendment: "The weight of authority is clear: a warrant purportedly authorizing a search beyond the jurisdiction of the issuing magistrate judge is void under the Fourth Amendment. We agree with our sister circuits’ analysis and conclude that the Rule 41 violation was a fundamental, constitutional error."

However, the Court also concluded the agents acted in good faith reliance on the warrant, and denied suppression.

10/15/18: Good decision in stash house sting case

In United States v. Seller, --- F.3d ---, No. 16-50061 (9th Cir. 2018), the Court vacated the district court’s order denying the defendant’s motion seeking discovery on a claim of selective enforcement.

This case arose from yet another reverse sting operation to rob a fictitious stash house.  The defendant sought to challenge the prosecution on the ground of selective enforcement -- i.e., that he was targeted by law enforcement based on his race. 

The question on appeal was what threshold showing is required to obtain discovery from the government in favor of a selective enforcement claim.

As the Court explained, a selective enforcement claim is different than a selective prosecution claim: 

"Selective prosecution is not selective enforcement— especially not in the stash house reverse-sting context. There are two main differences that warrant departure from the Armstrong standard: First, law enforcement officers do not enjoy the same strong presumption that they are constitutionally enforcing the laws that prosecutors do. Second, the nature of reverse-sting operations means that no evidence of similarly situated individuals who were not targeted exists."

Thus, joining the Third and Seventh Circuits, the Court declined to adopt the rigorous Armstrong standard that applies to selective prosecution claims:

"Today we join the Third and Seventh Circuits and hold that Armstrong’s rigorous discovery standard for selective prosecution cases does not apply strictly to discovery requests in selective enforcement claims like Sellers’s. Contrary to Armstrong’s requirements for selective prosecution claims, a defendant need not proffer evidence that similarly-situated individuals of a different race were not investigated or arrested to receive discovery on his selective enforcement claim in a stash house reverse-sting operation case. While a defendant must have something more than mere speculation to be entitled to discovery, what that something looks like will vary from case to case. The district court should use its discretion—as it does for all discovery matters—to allow limited or broad discovery based on the reliability and strength of the defendant’s showing."

And "Because the district court applied an incorrect legal standard, we follow our normal practice of remanding to the district court to determine in the first instance whether Sellers has met the standard we outline today."

There is a good concurrence from Judge Nguyen about how these stash house stings have a clear racial bias: "Like many of my colleagues across the country, I am greatly disturbed by the government’s practice and, in particular, its disproportionate impact on people of color. The government’s use of stash house reverse stings warrants closer scrutiny" 

Judge Graber dissented. 

10/10/18: A day about prosecuting police

The Ninth published an opinion and an order today.  Both cases involve federal prosecutions of law enforcement officers. 

First, in United States v. Gonzalez, --- F.3d ---, No. 15-50483 (9th Cir. 2018), the Court affirmed the defendants' convictions and sentences.  The case arose after Sheriff deputies beat a handcuffed man at the L.A. Jail.  The defendants were convicted of conspiracy to deprive the victim of his civil rights (18 U.S.C. § 241), violating his civil rights (18 U.S.C. § 242), and falsifying reports to obstruct an investigation (18 U.S.C. § 1519).

The opinion is long, covering a number of issues.  But most interesting (at least for me) is the discussions of sufficiency challenges in the context of multiple-object conspiracies.

The Court rejected the argument "that whenever one object of a multiple-object conspiracy is not supported by sufficient evidence, a general verdict must be set aside." 

It explained that, under Griffin v. United States, 502 U.S. 46 (1991), reversal is required "only if one of the objects of the conspiracy is legally deficient—for example, because the conduct underlying the object is protected by the Constitution, occurred outside the statute of limitations, or fails to come within the statutory definition of the crime."

But "[t]he rule is different when all objects of the conspiracy are sound as a legal matter, but one of them lacks adequate evidentiary support. Because “jurors are well equipped to analyze the evidence,” we can be confident that the jury chose to rest its verdict on the object that was supported by sufficient evidence, rather than the object that was not.  In this latter scenario, the verdict stands."

The Court found: "This case is controlled by Griffin. Gonzalez and Ayala do not contend that either object of the conspiracy charged in Count One was legally deficient. They do not, for example, assert that the jury instructions improperly defined the elements of the crime. They argue only that the first object, concerning Carrillo’s right to be free from the use of excessive force, was not supported by sufficient proof. Even if we agreed with them on that point (which we don’t, for reasons explained below), they would not be entitled to reversal of their convictions on Count One."

There is lots more in the decision -- for example, a discussion of Pinkerton liability and causation requirements under 18 U.S.C. § 242.  Worth a read.

Next, the saga of Joe Arpaio continues.  For those who don't recall: "Arpaio violated an order of the district court. The United States prosecuted Arpaio for criminal contempt of court and obtained a conviction on July 31, 2017. President Trump pardoned Arpaio on August 25, prior to sentencing by the district court. Arpaio then moved to dismiss the prosecution and to vacate the conviction. On October 19, 2017, the district court granted Arpaio’s motion to dismiss the prosecution but denied his motion to vacate the conviction. Arpaio appealed the denial."

After the government indicated it would not defend the appeal, "a motions panel of our court issued an order authorizing the appointment of a special prosecutor to provide briefing and argument to the merits panel” that will hear Arpaio’s appeal."

In United States v. Arpaio, --- F.3d ---, No. 17-10448 (9th Cir. 2018), the Court denied rehearing en banc of that order.  There are concurrences and dissents, arguing about whether the special prosecutor is appropriate (as opposed to amicus).  In any event, if you are interested in the law regarding a court's authority to appoint a special prosecutor, this one is for you.

10/3/18: Good sentencing decision

Today, in United States v. Gray, --- F.3d ---, No. 18-30022 (9th Cir. 2018), the Court vacated the defendant's sentence based on the peculiar sentencing procedure used by the district court. 

This was a supervised release revocation case. 

The defendant consented to a revocation hearing before the MJ.  The MJ recommended a 5-month sentence.

The district court, however, without holding a further hearing imposed a 20-month sentence, relying heavily on the probation officer’s confidential sentencing recommendation, which included factual information that had not been disclosed to the defendant.

The Ninth held this was improper.  First, the district court violated Federal Rule of Criminal Procedure 32 by failing to disclose to the defendant the factual evidence on which it relied at sentencing.  Second, "even if the defendant is given an opportunity to appear and speak before the magistrate judge, the district court must provide the defendant an additional opportunity before the actual sentence is imposed."