11/28/18: Case on destructive devices

In United States v. Kirkland, --- F.3d ---, No. 16-10514 (9th Cir. 2018), the Court affirmed the defendant's convictions for being a felon in possession of a destructive device in violation of 18 U.S.C. § 922(g)(1) and possessing an unregistered destructive device in violation of 26 U.S.C. § 5861(d).

The case involved the definition of destructive device in 921(a)(4)(C): "any combination of parts either designed or intended for use in converting any device into any destructive device described in subparagraph (A) or (B) and from which a destructive device may be readily assembled."

The defendant argued that, because his device was missing the batteries needed to convert it into a functioning bomb, he was not guilty as a matter of law. 

The Ninth Circuit disagreed.  It held that § 921(a)(4)(C) requires only that the defendant possess a combination of parts from which a functional device “may be readily assembled”; that the requirement does not categorically exclude situations in which the assembly process entails the acquisition and addition of a new part; and that the “readily assembled” element can still be met so long as the defendant could acquire the missing part quickly and easily, and so long as the defendant could incorporate the missing part quickly and easily.

Missing batteries was just such a situation, becuase they could be added easily.  The Court further made clear the issue was one of fact for the jury.  However, there was one exception: "the defendant possesses the explosive material necessary to construct an operable explosive weapon."  In other words, if it had been the explosive material missing -- rather than the batteries -- the defendant's conviction would have failed.

11/27/18: Good case on jury instructions

In United States v. Tydingco, --- F.3d ---, No. 17-10023 (9th Cir. 2018), the Court vacated the defendants' convictions for harboring an illegal alien and aiding and abetting the harboring, in violation of 8 U.S.C. § 1324(a)(1)(A)(iii).

The case arose from the defendants bringing a friend's child from China to attend school in the U.S. 

On appeal, the Court found the jury instructions erroneous in two respects. 

First, the instruction defining "harbor" was erroneous because it did not require the jury to find the defendants intended to violate the law.  On this point, the Court explained: "the jury instructions were legally deficient by not requiring the jury to find that Defendants intended to violate the law. The omitted instruction was not harmless beyond a reasonable doubt, because it went to the heart of Lili’s primary defense—that she did not understand the immigration laws and did not act with the intent to violate the law. Indeed, the government expressly concedes that, if the harboring instruction was erroneous, the error was not harmless."

Second, the Court held the district court plainly erred in instructing the jury that "reckless disregard" means "being aware of facts which, if considered and weighted in a reasonable manner, indicate a substantial and unjustifiable risk that the person harbored was in fact an alien and was in the United States unlawfully."    Instead, under controlling precedent, "reckless disregard requires that the defendant herself must be aware of facts from which an inference of risk could be drawn and the defendant must actually draw that inference."

As to prejudice, the Court explained, "Defendants bear the burden of showing prejudice, which requires some intermediate level of proof that the error affected the outcome at trial: more than a mere possibility, but less than a preponderance of the evidence."  The Court determined the defendants met their burden.  Further, the jury’s possible reliance on a legally invalid theory constitutes a miscarriage of justice which would seriously affect ‘the fairness, integrity or public reputation of judicial proceedings."  Thus, a new trial was warranted.

11/26/18: Multiplicity case

In United States v. Chilaca, --- F.3d ---, No. 17-10296 (9th Cir. 2018), the Court vacated the defendant's sentence on four counts of possessing child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B).

Joining the other Circuits to consider the issue, the Court held that, under § 2254(a)(4)(B), which makes it a crime to knowingly possess “1 or more” matters containing any visual depiction of child pornography, simultaneous possession of different matters containing offending images at a single time and place constitutes a single violation.  In other words, simultaneously possessing “1 or more” media or electronic storage devices that contain child pornography images is only one violation of § 2252(a)(4)(B), regardless of the number of images or separate media used to store the images.

Thus, the defendant's four convictions were multiplicitous in violation of the Double Jeopardy Clause.

The remedy was to vacate three of the counts and remand for resentencing on the remaining count.

11/18/19: Interesting case on grand jury subpoenas

In In Re Twelve Grand Jury Subpeonas, --- F.3d ---, No. 17-17213 (9th Cir. 2018), the Court affirmed the district court’s order holding an appellant in contempt for his failure to comply with the court’s order to respond to twelve grand jury subpoenas in his capacity as a records custodian.

The case involves the tension between the obligation for a corporate entity to comply with a subpoena and the Fifth Amendment privilege against self-incrimination.

The defendant argued that, because the companies were small, closely-held entities for which he was either the sole shareholder or sole employee, or was solely responsible for accounting and recordkeeping, he could invoke his Fifth Amendment privilege. The theory was that, because the jury would know the defendant provided the documents, it implicated the act of production doctrine.

The act of production doctrine recognizes “that the act of producing documents in response to a subpoena may have a compelled testimonial aspect,” in that the act “may implicitly communicate ‘statements of fact,’” such as “that the papers existed, were in [the producer’s] possession or control, and were authentic.”

Additionally, under the collective entity doctrine, individuals and sole proprietorships, which do not, as a legal matter, exist separately from the individuals who comprise them, there is a privilege against complying with subpoenas that implicate Fifth Amendment grounds.

The Court rejected the defendant's claims. It held there were no circumstances under which a records custodian could resist a subpoena for a collective entity’s records on Fifth Amendment grounds, and that the size of the entity, and the extent to which a jury would assume that the individual seeking to assert the privilege produced the documents, were not relevant.

11/2/18: Great confrontation clause case

In United States v. Carter, --- F.3d ---, No. 16-50271 (9th Cir. 2018), the Court held  that a defendant’s right to physically confront an adverse witness (whether child or adult) cannot be compromised by permitting the witness to testify by video (whether one-way or two-way) unless use of the remote video procedure is necessary and the reliability of the testimony is otherwise assured.

The issued centered on the district court's decision to allow a critical witness to testify remotely via two-way video because she was seven months pregnant and could not travel.  

The Court held this violated the defendant's confrontation rights, because there were other alternatives, such as a continuance or severing counts.  Further, the error was not harmless. 

There is lots of good language.  For instance:

• Not only does physical confrontation at trial serve as a symbol of fairness, but it also promotes reliability, for “[i]t is always more difficult to tell a lie about a person ‘to his face’ than ‘behind his back.’” Compelling “adverse witnesses at trial to testify in the accused’s presence” thus “enhances the accuracy of factfinding” at trial.  

•  a criminal defendant’s constitutional rights cannot be neglected merely to avoid “added expense or inconvenience.” 

Congrats to Ben Coleman for another fantastic win!