12/27/19: geometric isomers of methamphetamine?

In United States v. Rodriguez-Gamboa, --- F.3d ---, No. 19-50014 (9th Cir. 2019), the Court once again confronted the difference between the federal definition of methamphetamine and California's definition.  (this was previously addressed in the now withdrawn Lorenzo opinion).

The relevant federal statute defines methamphetamine as including only methamphetamine and its optical isomer, while California law defines methamphetamine as including its geometric and optical isomers.

This is important because it would seem to make California methamphetamine convictions overbroad such that they could not generally serve as predicate convictions for federal law. 

BUT, "the government contends that this apparent difference is illusory because there is no such thing as a geometric isomer of methamphetamine."

Here, the Court did not resolve the factual issue but remanded to the district court for an evidentiary hearing.

So stayed tuned on this important issue.

The opinion also has some good language on withdrawing a guilty plea:

• The district court may allow a guilty plea to be withdrawn if “the defendant can show a fair and just reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). A fair and just reason includes “intervening circumstances, or any other reason for withdrawing the plea that did not exist when the defendant entered his plea.”  A change in the law can justify withdrawal of a plea. 

12/24/19: Guidelines case about U.S.S.G. § 2A2.2(b)(4)

In United States v. Harrington, --- F.3d ---, No. 18-30141 (9th Cir. 2019), the Court affirmed the defendant's sentence following his conviction for "assault by strangling a spouse in Indian country in violation of 18 U.S.C. § 113(a)(8)."

The issue was whether the district court impermissibly double counted when it applied a three-level enhancement for strangling a spouse under § 2A2.2(b)(4).

The Court held it did not: "We hold that application of the three-level adjustment for strangulation to Harrington’s sentence does not constitute impermissible double counting."

12/16/19: Good Guidelines decision

In United States v. Wang, --- F.3d ---, No. 17-10275 (9th Cir. 2019), on plain-error review, the Court vacated the defendant's sentences imposed at the same hearing in two cases – one in which the defendant pleaded guilty to mail fraud, visa fraud, money laundering, and willful failure to pay over tax; the other in which the defendant pleaded guilty to conspiracy to commit visa fraud.

This case demonstrates how tricky the Guidelines can be when the court holds a single sentencing hearing on two separate cases.

The issue on appeal was the district court's application of section 2B1.1 -- the offense Guideline that covers general fraud offenses -- to the defendant's mail fraud conviction pursuant to 18 U.S.C. § 1341.

The Court held: "the district court erred by applying § 2B1.1 to calculate the offense level for Wang’s mail fraud count of conviction. The allegations underlying this count established an immigration visa fraud offense expressly covered by § 2L2.1. Therefore, the district court should have followed the § 2B1.1(c)(3) cross-reference and applied § 2L2.1."

In short, section 2B1.1contains a cross-reference directing the district court to apply another Guideline when, among other conditions, “the conduct set forth in the count of conviction establishes an offense specifically covered by another guideline in Chapter Two." 

Here, the conduct alleged in the indictment's mail fraud count established a visa fraud offense specifically covered by § 2L2.1.  Thus, the district court should have applied 2L2.1.

The Court went on to explain why the error was plain and required resentencing.  It also detailed the proper method of determining whether to impose consecutive or concurrent time for multiple counts under U.S.S.G. § 5G1.2.

12/9/19: Impossible bribery

In United States v. Kimbrew, --- F.3d ---, No. 18-50251 (9th Cir. 2019), the Court affirmed the defendant's bribery conviction. 

"Kimbrew does not dispute that he took money in exchange for a promise that he made as a federal public official. He instead argues that he promised to do the impossible, so his conduct falls outside the purview of § 201 bribery.1 We are not persuaded, and we affirm."

Some important points about § 201 bribery.

• The statutory definition of “official act” contains broad temporal language that indicates the question or matter at issue need not currently be pending or capable of being brought before a public official.

• § 201 liability does not depend on an outcome; the offense is complete at the moment of agreement, and that agreement need not even be accompanied by the bribe recipient’s genuine intentions to follow through.

• Nowhere in the statute or in the governing case law is there a requirement that the bribe recipient be able to succeed in exerting that pressure or persuading through his advice to realize the desired result.

• The official can be convicted even if he never intended to perform the official act for which he was bribed. Id. at 2371. In short, execution is immaterial. It logically follows, then, that § 201 is not limited by the odds of success of the quo at issue.

• the “official act” core of § 201 carries with it a requirement that there be a nexus between the public official’s position and the quo he promises. 

12/2/19: Two crimes of violence

In two recent decisions the Ninth Circuit held that:

1. assault with a dangerous weapon described in 18 U.S.C. § 113(a)(3) is a crime of violence under 18 U.S.C. § 924(c)(3)(A).   United States v. Gobert, --- F.3d ---, No. 17-35970 (9th Cir. 2019)

2. armed robbery involving controlled substances described in 18 U.S.C. § 2118(c)(1) is a crime of violence under 18 U.S.C. § 924(c)(3)(A).  United States v. Burke, --- F.3d ---, No. 17-35446 (9th Cir. 2019)

The cases use the same reasoning to reach the same result.  Nothing else to report on them.

11/15/19: Search case with a supervised release issue

In United States v. Ped, --- F.3d ---, No. 18-50179 (9th Cir. 2019), the Court affirmed the denial of the defendant's suppression motion but vacated a few supervised release conditions.

I believe this is the first published criminal case by the newly appointed Judge Miller. 

The Court found the warrantless home search here was permissible because the police had probable cause to believe the defendant's brother (who was on post-release community supervision with a 4th waiver) lived at the house.  This was so despite the fact that the defendant and the defendant's mother told police he did not live there and the brother having previously reported that he did not live there.  The Court concluded that the officers reasonably relied on a probation list, notwithstanding that it was three months old.

As to the supervised release issue, the district court required that the defendant “support his . . . dependents and meet other family responsibilities,” that he “work regularly at a lawful occupation,” and that he “notify third parties of risks that may be occasioned by [his] criminal record or personal history or characteristics.

Based on Circuit precedent, the Court found these conditions were unconstitutionally vague.  The Court held it needed to remand the case to the district court, rather than rewrite the conditions: “a remand is required under § 3742(f)(1) whenever the reviewing court concludes that the sentence was imposed 'in violation of law.'”

11/4/19: Two cases today, two affirms

Two cases today.  One on the Fourth Amendment and one on SORNA

In United States v. Norris, --- F.3d ---, No. 17-10354 (9th Cir. 2019), the Court affirmed the defendant's conviction for distribution and possession of material involving the sexual exploitation of minors.

The case involved the government's use of software and a directional antenna to find the location of the defendant's computer.

The basic facts were that the defendant hacked into his neighbor's wireless network from an adjacent apartment and used that internet connection to share contraband images on a peer-2-peer network.  

To find the defendant's location (that is, the location of his computers), agents used a wireless tracking software program, Moocherhunter, designed to identify computers trespassing on wireless networks, and a wireless antenna. The software pointed the agents to the defendant's apartment.  They obtained a search warrant and found contraband. 

The district court denied the defendant's motion to suppress, and the Court affirmed.  

First, it held there was "no actual physical intrusion into Norris’s apartment," because the signal extended outside of his home and was captured outside of his home:  "The FBI’s actions may be likened to locating the source of loud music by standing and listening in the common area of an apartment complex. Although the music is produced within the apartment, the sound carries outside the apartment. Just as no physical intrusion 'on constitutionally protected areas' would be required to determine the source of the loud music, no physical intrusion into Norris’s residence was required to determine the strength of the wireless signal emanating from the devices in his apartment."

Second, the Court held that, under the Katz test, there was no reasonable expectation of privacy in the signal because it extended outside of the home (and on this basis, the Court distinguished Kyllo).  Further, the Court explained, "[w]e have also generally concluded that society is not prepared to recognize as reasonable a subjective expectation of privacy in the content of property obtained through unauthorized means."

The Court also rejected the defendant's argument that he was entitled to a Franks hearing. 

Moving on, in United States v. Dailey, --- F.3d ---, No. 18-10134 (9th Cir. 2019), the Court dismissed an appeal from the district court’s imposition of a probation condition requiring the defendant to register as a sex offender pursuant to the Sex Offender Notification and Registration Act.

This is one of those cases where the Court had to decide the merits of the appeal to determine whether it was covered by the appellate waiver.

On that subject, the Court summarized the relevant waiver law: 

There are, however, several exceptions to waivers of the right to appeal. “An appeal waiver will not apply if: 1) a defendant’s guilty plea failed to comply with [Federal Rule of Criminal Procedure] 11; 2) the sentencing judge informs a defendant that she retains the right to appeal; 3) the sentence does not comport with the terms of the plea agreement; or 4) the sentence violates the law.”  Among other things, a sentence that violates the law is a sentence “in excess of the permissible statutory penalty for the crime,” a category that includes unlawful probation conditions. 

The defendant argued the last exception applied, because she was wrongly required to register under SORNA.  She claimed her conviction for violating the Travel Act did not constitute a “sex offense.”  

In rejecting her claim, the Court held the categorical approach does not apply: "faced with the question whether the only acceptable interpretation of [SORNA's] residual clause is to apply a noncategorical approach regarding the age of the victim, we hold that it is." 

Thus, because the defendant admitted in her plea that the offense of conviction involved a minor, registration was required. 

10/31/19: Split decision - commenting on silence

In United States v. Garcia-Morales, --- F.3d ---, No. 17-50323 (9th Cir. 2019), a split panel affirmed the defendant's conviction for attempted transport of aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(ii).

The appeal turned on whether the prosecution introduced evidence of, and commented on, the defendant's post-arrest silence at trial.  Here's what happened:

the prosecution played a video clip of Garcia’s post-arrest interrogation. In the video, Border Patrol Agent Kahl asked Garcia to identify his alien smuggling co-conspirators. Although Garcia had already answered a number of questions up to this point in the videorecorded interrogation, he refused to discuss his coconspirators, stating “I ain’t feeling cool with that camera.” Agent Kahl pressed harder, asking “why don’t you just give me a name?” Garcia shook his head nervously, sighed heavily, and started to say “I don’t . . . .” Agent Kahl interrupted Garcia to remind him that if he did not name his co-conspirators, he alone would take the fall for the crime of alien smuggling. Garcia shook his head timidly, bit his nails, and once again stated: “I don’t feel cool with the camera . . . .” Agent Kahl again cut him off, this time stating: “Okay, if you want, alright, well, later on we’ll turn off the camera and you can tell me.” Garcia sheepishly nodded his head in agreement.  

Despite suggesting that he might talk about his coconspirators off camera, Garcia later refused to name his coconspirators during subsequent off-camera discussions with Border Patrol agents. 

During trial, the prosecution elicited direct testimony from Agent Kahl in its case-in-chief about Garcia’s refusal to identify his co-conspirators. Later, the prosecution argued in its closing statement that Garcia must be guilty because he was “evasive about other people who are involved,” asking “Why does he want the recording turned off? . . . It wasn’t because he had a plan the entire time to turn these people over.”  

The majority concluded:  "Garcia was not silent in response to Agent Kahl’s questioning on the topic of his co-conspirators. This conclusion is driven by the fact that the exchange between Agent Kahl and Garcia began with Garcia voicing discomfort with video recording and concluded with Garcia agreeing to speak about his coconspirators. At most, the exchange demonstrated that Garcia did not want to discuss his co-conspirators on video tape but was willing to continue talking about the subject later."

The dissent, however, explained: "It makes no difference that Garcia intimated that he might be willing to answer questions about his coconspirators at another time (which ultimately never happened), because such an 'explanatory refusal' to answer is treated the same as silence for Fifth Amendment purposes."  The dissent continued:  "The prosecution’s reference to Garcia’s silence as evidence of his guilt in this context was a Doyle violation, plain and simple."

10/15/19: Rule 414 case

In United States v. Thornhill, --- F.3d ---, No. 18-30046 (9th Cir. 2019), the Court affirmed the defendant's conviction for receipt of child pornography, holding that the district court did not abuse its discretion when it admitted, under Rule 414, evidence of the defendant’s prior state conviction for sexual abuse of a minor.

Rule 414(a) provides: “[i]n a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant.”

Rule 414, however, is subject to Rule 403 balancing.  Previously, in Lemay, the Court set forth a multi-factor test guiding the application of Rule 403 in the Rule 414 context.

The decision in this case focused on the fifth factor:  "the necessity of the evidence beyond the testimonies already offered at trial."

The majority determined that, despite this language, a district court need not wait until the introduction of the other trial evidence before ruling on the proposed Rule 414 evidence.

Concurring in the decision, but not the reasoning, Judge N.R. Smith explained, "LeMay requires trial judges to reserve judgment on this issue until after the other testimony has been offered."  However, in this case, he found the timing error harmless.

10/9/19: Great sentencing win

In United States v. Valle, --- F.3d ---, No. 18-50199 (9th Cir. 2019), the Court vacated the defendant's illegal reentry sentence, denied the government a second bite at the apple, and remanded for immediate resentencing under a lower Guidelines range.

At issue was whether the defendant was subject to an increased Guidelines range based on his prior state drug convictions.  The answer under 2L1.2 and 4A1.1 turned on whether those convictions were within 10 and/or 15 years of his current offense.  (If not, they would not count for sentencing purposes).

Thus, the salient question was when did the defendant's current illegal reentry “commence”?

The government and PSR said it was in 2004 when the defendant was arrested but not removed.  The defense said it was in 2017 when he was arrested (found in) for the current offense. 

The district court sided with the government.  The Ninth Circuit reversed.

"[W]e consider whether the Government can establish by clear and convincing evidence a non-citizen’s continuous presence in the United States since the alleged time of reentry without submitting any direct evidence of where the non-citizen was for more than a decade. We hold that it cannot. We give some weight to the inference that a non-citizen who had previously returned after being removed and who had family in the United States would have made efforts to stay in the country. But that inference is not enough to carry the Government’s burden here to prove the thirteen years of continuous presence in the United States necessary to support the enhancements applied to Petitioner Miguel Valle’s sentence."

In other words, because the government had no evidence of where he was between the 2004 and 2017 arrests, it could not prove the defendant was in the U.S. the whole time. "Ultimately, because it was the Government’s significant burden to prove that Valle was continuously present, and it produced no evidence whatsoever about where he was for over a decade, the district court clearly erred in concluding that the Government had sufficiently proven that he remained in the United States."


 There is also a good discussion of why the clear and convincing standard applies. 

Additionally, the Court explained:

"It is the Government’s burden to prove continuous presence, not Valle’s burden to prove lack thereof."

"Here, because the Government failed to carry its burden despite an extensive factual inquiry below, it is not entitled to 'a second bite at the apple.' Id. We therefore hold that on remand it may not submit new evidence of Valle’s whereabouts."

"For the foregoing reasons, we vacate Valle’s sentence and remand for resentencing based on the Guidelines range of 1 to 7 months. Because Valle has already been in custody for the illegal reentry offense for about 20 months, we order the mandate to be issued forthwith and to be transmitted without delay to the district court for immediate resentencing."

9/23/19: Oral jury instructions required

In United States v. Becerra, --- F.3d ---, No. 17-30050 (9th Cir. 2019), the Court vacated the defendant's drug-related convictions because the district court plainly erred in failing to give oral jury instructions.  Although the court provided written instructions, and confirmed the jurors read them, this was insufficient. 

The Court held: "Our circuit held nearly thirty years ago that oral instructions to the jury as to the law they must apply are an essential feature of a jury trial. Guam v. Marquez, 963 F.2d 1311, 1314–15 (9th Cir. 1992). A trial court does not satisfy its duty to instruct jurors in a criminal case just by providing those jurors with a set of written instructions to use during deliberations. Id. We further determined that when a trial court abdicates its responsibility to charge the jury orally as to the elements of the charged crimes, it commits structural error. Id. at 1315–16. We are bound by those holdings and so reverse the conviction in this case."

9/19/19: Interesting stuff

Rarely is a case heard initially en banc.  But today, that is what the Ninth Circuit ordered. 

In United States v. Collazo, et. al., --- F.3d ---, No. 15-50509 (9th Cir. 2019), the Court issued an order for the case to be heard initially en banc.  The issue will be "the proper jury instruction under 21 U.S.C. § 841(b) for determining the drug type and quantity involved in a conspiracy offense."

More specifically, based on the briefing, it appears the Court will consider whether the district court is required to instruct the jury that a drug quantity attributable to an individual defendant must be both jointly undertaken in furtherance of that defendant’s agreement and reasonably foreseeable to that defendant.  Or, whether the instruction should be in the disjunctive regarding --whether certain drug types and quantities were either “reasonably foreseeable” to an individual defendant or “fell within the scope of his particular agreement.”

9/17/19: Another inventory search

In United States v. Garay --- F.3d ---, No. 18-50054 (9th Cir. 2019), the Court affirmed the defendant's conviction for being a felon in possession of a firearm.

The issue on appeal was the denial of the defendant's motion to suppress evidence found as a result of the search of his cell phone, seized from his rental car after a high-speed chase.

First, the Court sidestepped the issue of Fourth Amendment standing:  "The Supreme Court recently clarified in Byrd that Fourth Amendment standing, unlike Article III standing in the civil context, is 'not a jurisdictional question and hence need not be addressed before addressing other aspects of the merits of a Fourth Amendment claim.' 138 S. Ct. at 1530. We conclude that the search and seizure of Garay’s cell phone were both reasonable under the Fourth Amendment. Accordingly, we need not decide whether Garay abandoned all reasonable expectation of privacy in the cell phone."

Second, the Court held,"the seizure of Garay’s cell phone was justified as part of an inventory search in preparation for the car’s towing."

Further: "administrative errors should not, on their own, invalidate inventory searches: 'There must be something else; something to suggest the police raised ‘the inventory-search banner in an after-the-fact attempt to justify’ a simple investigatory search for incriminating evidence.'"

The Court continued: "we find no reason to conclude that the inventory search was used to rummage for evidence. Given the circumstances leading up to the search, the officers no doubt expected to find evidence of criminal activity inside the vehicle. But that expectation would not invalidate an otherwise reasonable inventory search."

Finally, the Court concluded the subsequent warrants to search the cell phone were supported by probable cause. "We have long held that affiants seeking a warrant may state conclusions based on training."

9/16/19: Interesting sentencing decision

In United States v. Schopp, --- F.3d ---, No. 16-30185 (9th Cir. 2019), the Court vacated the defendant's life sentence for producing child pornography in violation of 18 U.S.C. § 2251(a).

The defendant pleaded guilty with an appellate waiver.  He was sentenced under section 2251(e)'s enhanced penalty provision:  a defendant with “2 or more prior convictions . . . under the laws of any State relating to the sexual exploitation of children . . . shall be . . . imprisoned not less than 35 years nor more than life.”

On appeal, he argued his prior Alaska convictions were not "relating to the sexual exploitation."  Thus, his life sentence was illegal.

On plain error, and despite the appellate waiver, the Court agreed.

First, as to the appellate waiver, the Court held that it did not cover (prevent) an appeal of an illegal sentence.

Second, the Court determined, "the federal generic definition of 'sexual exploitation of children' is defined within § 2251 as the production of visual depictions of children engaging in sexually explicit conduct, or put simply, the production of child pornography."

In reaching this conclusion, the Court relied heavily on the statute's heading: "The statute’s section heading, when read in conjunction with the statutory text, largely resolves our question concerning the federal generic definition of “sexual exploitation of children."  Further, "a section heading may serve as the basis for establishing what offense is being defined in the statutory text."

[This is helpful language for using headings to make arguments about what a statute means]

Third, the Court rejected the government's reliance on the term "relating to."  It held: "We [] adhere to our conclusion that the 'relating to' term in § 2251(e) encompasses state offenses that are a categorical match to the federal offense of production of child pornography and state offenses involving the production of such pornography, that is, the conduct enumerated in § 2251’s various subsections. It does not include offenses that entirely lack the visual depictions element that separates 'sexual exploitation of children from other forms of child abuse in the federal criminal offense panoply."

Because the defendant's priors did not fit within the definition, his sentence was illegal and could not stand.

9/12/19: health care fraud case with an aggravated identity theft issue

In United States v. Hong, --- F.3d ---, No. 17-50011 (9th Cir. 2019), the defendant was convicted of health care fraud and related offenses based on a scheme to bill Medicare for physical therapy treatments that had not been provided.

The defendant raised a host of issues (see the 9th Cir. summary on those), which the court rejected.  BUT he did prevail on his identity theft argument.

The Ninth Circuit agreed that the defendant did not “use” the patients’ identities within the meaning of § 1028A, where neither he nor the physical therapists attempted to pass themselves off as the patients.   In other words, "use" is this context is essentially pretending to be the person, not just using the identity to bill Medicare. 

Also, for us appellate people: "The government contends that because Hong’s argument has shifted on appeal, we should review for plain error. But Hong’s “basic claim remains the same”—that his communications with co-schemers were not obstruction—so we review for abuse of discretion the district court’s application of the guidelines and for clear error its factual findings. See Vallejos, 742 F.3d at 905; see also United States v. Wahid, 614 F.3d 1009, 1016 (9th Cir. 2010) (declining to apply a heightened standard of review where defendant’s arguments against the guidelines calculation were based on different enhancements in district court and on appeal).

9/11/19: BERZON, Circuit Judge, dubitante:

This is a weird one.

In United States v. Campbell, --- F.3d ---, No. 17-10561 (9th Cir. 2019), the Court considered the district court's ability to impose consecutive terms of imprisonment following revocation of concurrent supervised release terms.

The majority affirmed, holding: "The district court acted within the discretion conferred upon it by 18 U.S.C. § 3584(a) when it imposed consecutive terms of imprisonment following revocation of multiple [concurrent] supervised release terms."

Judge Berzon filed a dubitante opinion (a dubitante opinion is when the judge is doubtful, but can't say the majority is wrong).   She wrote:

Today’s result is baffling. Roger William Campbell was initially sentenced to concurrent terms of imprisonment and supervised release. After he admitted to a single violation of the terms of that supervised release, the district court revoked his supervised release and sentenced him to consecutive terms of imprisonment. The result was that Campbell’s prison sentence was longer for the revocation than his original sentence and could have been much longer as the majority opinion interprets the U.S. Sentencing Guidelines. 

***
I very much doubt, in light of supervised release’s role in our criminal justice system, that the Sentencing Commission meant to recommend revocation sentences measured by the number of “terms of supervised release” rather than by the violations of the uniform conditions of supervised release and the nature of the underlying offense. The Sentencing Commission, which promulgates the Sentencing Guidelines, has underscored that “it views the guideline-writing process as evolutionary.” Sentencing Guidelines, Ch. 1, pt. A; Ch. 7 pt. A. Yet, I have seen no indication that the Commission has confronted this anomaly. On this matter, the time to evolve is now 

9/5/19: Split decision in First Amend. case

In United States v. Waggy, --- F.3d ---, No. 18-30171 (9th Cir. 2019), a divided panel affirmed the defendant's convictions under the Assimilative Crimes Act for felony telephone harassment in violation of Washington Revised Code section 9.61.230(1)(a),(b), arising from the defendant’s repeated telephone calls to a Veterans Administration medical center.

 The defendant raised a First Amendment challenge to the statute, as applied to his calls.  The majority concluded that the Washington statute was constitutional as applied because it required proof that the defendant specifically intended to harm the victim when initiating the call.  It held, "as applied to Defendant, section 9.61.230(1)(a) regulates nonexpressive conduct and does not implicate First Amendment concerns."

Judge Tashima dissented, explaining: "complaints about the actions of a government official were a significant component of Waggy’s calls, which were all made to a government office during business hours at the VA."

8/30/19: what does an “offense against a foreign nation involving . . . bribery of a public official,” as found in 18 U.S.C. § 1956(c)(7)(B), mean?

In United States v. Chi, --- F.3d ---, No. 17-50358 (9th Cir. 2019), the Court affirmed the defendant's conviction under 18 U.S.C. § 1957 for engaging in a monetary transaction of over $10,000 derived from a “specified unlawful activity.”

This is a case where the government reached out to prosecute a citizen of South Korea who was employed as a researcher at a government-funded geological research institute in South Korea.  He was charged with receiving payments from two seismometer manufacturers in exchange for ensuring that the research institute purchased their products.

The “specified unlawful activity” in the indictment was, as defined in 18 U.S.C. § 1956(c)(7)(B), “an offense against a foreign nation involving . . . bribery of a public official;” and the offense against a foreign nation involving “bribery of a public official” was Article 129 of the South Korean Criminal Code.

The defendant argued the term "bribery" had the same meaning as in 18 U.S.C. § 201 (which the Korean statute did not fit).  The Court disagreed, holding that “bribery of a public official” in § 1956 is defined by that phrase’s “ordinary, contemporary, common meaning,” and is not constrained by the federal bribery statute (sec. 201).  Thus, because the crime described in Article 129 fits comfortably within the ordinary meaning of “bribery of a public official” as used in § 1956, the indictment and conviction were proper.  

8/28/19: Lots to talk about

Three cases today with lots of information. 

First in United States v. Hanson, --- F.3d ---, No. 18-30037 (9th Cir. 2019), the Court affirmed the defendant's conviction but vacated his sentence.  There was an Ex Post Facto violation.  The Court held the district court violated the Ex Post Facto Clause when it sentenced the defendant to five years’ imprisonment under 18 U.S.C. § 3583(k) (2006) upon revoking his supervised release rather than sentencing him under the statutes as they existed in 2005 when he committed his first child pornography offense. Under those statutes, the maximum term of reimprisonment the district court could impose after revoking the defendant’s supervised release on his Class C felony conviction was two years.

The Court remanded for resentencing on both the new conviction and the supervised release violation. It held the "sentencing package" rule applies where the sentence on a judgment of revocation of supervised release and the sentence on a count of criminal conviction, both based on the same underlying conduct, were calculated and imposed at the same sentencing proceeding but the revocation sentence was subsequently determined to be illegal.

Next in United States v. Lilliard, --- F.3d ---, No. 16-30194 (9th Cir. 2019), the Court reversed the district court’s order granting the government’s motion pursuant to § 3664(n) of the Mandatory Victims Restitution Act to seize funds in the defendant’s inmate trust account to be applied to the defendant’s outstanding restitution debt.

In very short, section 3664(n) provides that if a person “receives substantial resources . . . during a period of incarceration, such person shall be required to apply the value of such resources to any restitution or fine still owed.”   Applying the rule of lenity, the Court held the "period of incarceration" did not include time in pretrial detention.  Thus, because the defendant received the money while in pretrial detention, the restitution order was improper. 

The Court also held the subsequent conviction and sentence did not moot the issue. 

Of note, the Court opted not to apply plain error.  Here's what it said:

We hold that de novo, rather than plain error, review is appropriate for three reasons.  

First, “plain error review typically applies where an issue raised on appeal was not ‘brought to the [district] court’s attention.’” United States v. Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir. 2004) (emphasis and alteration in original) (quoting Fed. R. Crim. Proc. 52(b)). The government argued before the district court that § 3664(n) applied to Lillard because, as a pretrial detainee, he was in “federal custody.” The issue of whether § 3664(n) applies to periods of pretrial detention was thus brought to the district court’s attention.  

Second, “[o]nce a . . . claim is properly presented, a party can make any argument in support of that claim . . . .” Yee v. Escondido, 503 U.S. 519, 534 (1992) (string cite omitted). “[I]t is claims that are deemed waived or forfeited, not arguments.” Pallares-Galan, 359 F.3d at 1095. Lillard claimed below that § 3664(k), rather than § 3664(n), was the proper provision under which to address his changed economic circumstances. Amicus’s argument that § 3664(n) does not apply to pretrial detainees is a further argument in support of that claim.  

Third, when this court is “presented with a question that is purely one of law and where the opposing party will suffer no prejudice as a result of the failure to raise the issue in the trial court,” this court is not limited to plain error review. United States v. Saavedra-Velazquez, 578 F.3d 1103, 1106 (9th Cir. 2009) (internal quotations and citation omitted); see also Yijun Zhou, 838 F.3d at 1011. Whether § 3664(n) applies to pretrial detention is a pure question of law, and the United States, which has had an adequate opportunity to defend its interpretation below and on appeal, suffers no prejudice.

Finally, in United States v. McAdory, --- F.3d ---, No. 18-30112 (9th Cir. 2019), the Court reversed in a case in which the defendant was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and remanded with instructions that the district court vacate the conviction and dismiss the indictment. 

This is an important decision.  An offense qualifies as a predicate felony for conviction under § 922(g)(1) if it is “punishable by imprisonment for a term exceeding on year.”  This decision concerned the definition of "punishable by."

Rather than the statutory maximum, the Court held that, under United States v. Valencia-Mendoza, 912 F.3d 1215 (9th Cir. 2019), “punishable by” means the sentence to which the defendant is actually exposed under Washington’s mandatory sentencing scheme (often less than a year).    If your client has a prior from a state with a mandatory sentencing scheme, this decision could make a big difference.  What appears to be a felony might not be.

Of note is the extended discussion of what qualifies as mere dicta and what is binding precedent.

8/26/19: attempted battery with substantial bodily harm in violation of Nev. Rev. Stat. §§ 200.481(2)(b) and 193.330 qualifies as a felony conviction for a crime of violence under U.S.S.G. § 2K2.1.

In United States v. Fitzgerald, --- F.3d ---, No. 18-10116 (9th Cir. 2019), a divided panel held that attempted battery with substantial bodily harm in violation of Nev. Rev. Stat. §§ 200.481(2)(b) and 193.330 qualifies as a felony conviction for a crime of violence under U.S.S.G. § 2K2.1.

This decision applied the categorical approach to the elements clause and found the Nevada statute requires sufficient physical force.

Judge Fletcher dissented.

8/21/19: Case on acceptance of responsibility

In United States v. Green, --- F.3d ---, No. 17-30227 (9th Cir. 2019), the Court considered whether a district court must decide on a defendant’s eligibility for an acceptance-of-responsibility reduction in his Guidelines level before listening to the defendant’s allocution.

It answered, no.  The district court can and should consider the allocution in determining acceptance. 

"We hold that the sentencing court erred by concluding that it could not first hear from the defendant before determining whether a reduction for acceptance of responsibility was warranted under the Sentencing Guidelines. We also conclude that this misapprehension was plain error and so vacate the sentence and remand for resentencing."

8/19/19: Busy day in the 9th

First, in United States v. Shayota, --- F.3d ---, No. 17-10270 (9th Cir. 2019), the Court affirmed the defendants' convictions for selling counterfeit 5-hour energy drink.  This is a Confrontation Clause case.

The issue was "whether prior civil deposition testimony of a witness, who has subsequently invoked his Fifth Amendment right against self-incrimination, may be introduced against defendants in a criminal trial without violating their Confrontation Clause right to confront the witnesses against them." 

The Court sidestepped the issue by finding any error harmless. 

But Judge O’Scannlain concurred to his own opinion to note that the Circuit's caselaw on unavailability should be reconsidered in light of Crawford v. Washington, 541 U.S. 36, 54 (2004).  He suggested that, at common law, invoking the right against self-incrimination was not sufficient to make someone unavailable under the Confrontation Clause.

Second, in United States v. Cuevas-Lopez, --- F.3d ---, No. 17-10438 (9th Cir. 2019), a split panel affirmed the defendant's sentence for illegal reentry. 

The main issue was how to calculate prior sentences under 2L1.2 (the provision that governs illegal reentry sentencing).  Under that provision, there are sentencing enhancements based on the length of the sentence imposed for prior convictions. 

In this case, the district court aggregated the defendant’s two consecutive 3.5-year sentences for prior robbery convictions in applying a ten-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(3)(A).

The majority approved, finding that the “single sentence rule” in U.S.S.G. § 4A1.2(a)(2) applies to the enhancements in U.S.S.G. § 2L1.2(b)(2) and (b)(3).  Thus, the aggregation was proper.

In dissent, Judge Ikuta pulled no punches.  Her dissent clearly explains why this is wrong.  Under a plain reading of the Guidelines, the single sentence rule should not apply in this context. 

Third, in United States v. Begay, --- F.3d ---, No. 14-10080 (9th Cir. 2019), the Court held that second degree murder is not a crime of violence under section 924(c)(1)(A).   Thus, the Court vacated the defendant's conviction on that count (but not the underlying murder conviction) and remanded.

"Second-degree murder is not categorically a crime of violence under the elements clause, 18 U.S.C. § 924(c)(3)(A). And, pursuant to Davis, second-degree murder cannot constitute a crime of violence under the residual clause, section 924(c)(3)(B), as the residual clause is unconstitutionally vague. Begay’s § 924(c) conviction for discharging a firearm during and in relation to a crime of violence therefore cannot stand under either the elements clause or residual clause of § 924(c)(3)."

Of note, the Court applied de novo review to the pure question of law, despite a lack of preservation. 

4/3/19: Sufficiency case from the First Circuit

No criminal cases from the Ninth Circuit today, so I thought I'd share an interesting case from the First.

In United States v. Pothier, --- F.3d ---, No. 18-1561 (1st Cir. 2019), the Court vacated the defendant's conviction for knowingly possessing child pornography, finding the evidence insufficient.

The contraband was found on the defendant's laptop, which was accessible by at least two other people and did not have a password.

Here's the relevant discussion:

[W]e begin by spelling out the scenario the government's theory necessarily posits: Pothier downloaded the file-sharing program Shareaza, the fileshredding program Evidence Eliminator, and child pornography, but decided to forgo password protection and then left the laptop in the living room of a residence at which two other people received mail. Furthermore, during the fifteen or so minutes when he knew the police were at the door, Pothier did not conceal or destroy the laptop or run the file-shredding Evidence Eliminator program that the government presumes he had installed. 

A contrary scenario consistent with the limited evidence is that Pritchard or Balis used the readily available laptop during Pothier's frequent absences to download the file-sharing and fileshredding applications and the child pornography. Neither of them could have put a password on the computer without alerting Pothier. And because they were not present when the police came calling, neither of them could have hidden or destroyed the computer, or erased the child pornography, when the need to do so arose.  

How could jurors rationally decide beyond a reasonable doubt which scenario describes what happened? In many cases, jurors rely on their assessments of witnesses' credibility to select between views of the evidence. Here, though, each competing scenario presumes the accuracy of the testimony proffered by the government, so credibility determinations cannot explain the conviction. Each scenario is plausible, and though one might debate their relative merits, to settle on one beyond reasonable doubt would require guesswork. And "[g]uilt beyond a reasonable doubt cannot be premised on pure conjecture."

The Court then concluded:  "If Pothier is factually innocent, then he has suffered a great wrong and the guilty person remains free. Conversely, if Pothier is factually guilty, he goes free only because the prosecution failed to gather and present readily accessible evidence. In either event, it is uncharacteristic prosecutorial torpor -- not undue judicial rigor -- that prevented justice from being done."

8/16/19: Great 4th Amend decision, and a sentencing decision too

In United States v. Cano, --- F.3d ---, No. 17-50151 (9th Cir. 2019), the Court gives a big Fourth Amendment win on border searches of cellphones. 

It is an opinion worth reading.  In very short, the Court held that a border search of a cellphone must be limited in scope to a search for contraband, not evidence of a border-crime. 

The opinion's introduction provides a good summary:

[W]e conclude that manual cell phone searches may be conducted by border officials without reasonable suspicion but that forensic cell phone searches require reasonable suspicion. We clarify Cotterman by holding that “reasonable suspicion” in this context means that officials must reasonably suspect that the cell phone contains digital contraband. We further conclude that cell phone searches at the border, whether manual or forensic, must be limited in scope to a search for digital contraband. In this case, the officials violated the Fourth Amendment when their warrantless searches exceeded the permissible scope of a border search. Accordingly, we hold that most of the evidence from the searches of Cano’s cell phone should have been suppressed. 

The Court also explained: "where the individual suspected of committing the border-related crime has already been arrested, there is no reason why border officials cannot obtain a warrant before conducting their forensic search."

Finally, the Court rejected the government's reliance on the good faith exception, with very helpful language:

"We have said that the good faith exception applies only to searches where “binding appellate precedent . . . ‘specifically authorizes’ the police’s search.” It is not sufficient for the question to be “unclear” or for the government’s position to be “plausibly . . . permissible.”

"We understand that border officials might have thought that their actions were reasonable, and we recognize that border officials have to make in-the-moment decisions about how to conduct their business—whether or not they have written guidance from the courts. But as we understand the Davis rule, the good faith exception to the exclusionary rule applies only when the officials have relied on “binding appellate precedent.” This is a rapidly developing area, not an area of settled law. Even if our decision in Cotterman rendered the searches “plausibly . . . permissible,” it did not “specifically authorize” the cell phone searches at issue here."


Next, United States v. Crum, --- F.3d ---, No. 17-30261 (9th Cir. 2018), is a frustrating decision that essentially acknowledges it is wrongly decided based on prior precedent with which the panel disagrees. 

The Court held that Oregon Revised Statutes § 475.890 qualifies as a “controlled substance offense”  U.S.S.G. § 2K2.1(a)(4)(A).   But as Judge Watford's dissent points out, in fact, the Oregon offense is overbroad, because a mere offer to sell does not constitute solicitation of a “controlled substance offense.”

8/13/19: Personal money judgments in criminal case & more on sentencing reductions

Two cases today.

First, in United States v. Nejad, --- F.3d ---, No. 30082 (9th Cir. 2019), the Court affirmed the district court’s entry of a “personal money judgment” against the defendant.

This is a criminal forfeiture issue.  In short, when the proceeds of a crime are not available, the government is allowed to seek substitute property under 21 U.S.C. § 853(p). 

In this case, the Court held the government can obtain a personal money judgment to satisfy a substitute-property forfeiture order.  But:

"it is clear that personal money judgments must be enforced within the constraints imposed by the applicable criminal forfeiture statutes.. .when § 853(p) applies, the government may not enforce a personal money judgment through the same means it would use to enforce an ordinary in personam civil judgment. Instead, once the government identifies untainted property that it believes may be used to satisfy a personal money judgment, it must return to the district court and establish that the requirements of § 853(p) have been met.

"If the court concludes that those requirements have been satisfied, the court may then amend the forfeiture order to include the newly identified substitute property. Only when these procedures are followed may the government satisfy a personal money judgment from the defendant’s untainted assets."

Next, in United States v. Hernandez-Martinez, --- F.3d ---, No. 15-30309 (9th Cir. 2019), the Court affirmed the district court's denial of the defendants' motions for resentencing under 18 U.S.C. § 3582(c)(2).

Based on existing precedent, the Court approved the district court's conclusion that the defendants were categorically ineligible for resentencing in light of U.S.S.G. § 1B1.10(b)(2)(A), which generally prohibits a sentence reduction if the original term of imprisonment is below the lower end of the amended Guidelines range.   In other words, because the defendants' original sentences were below the low-end of the amended range, they were not entitled to resentencing.

8/12/19: Good case on waiver

In United States v. Sainz, --- F.3d ---, No. 17-10310 (9th Cir. 2019), the Court considered whether a district court may sua sponte raise a defendant’s prior waiver of the right to seek a sentencing reduction under 18 U.S.C. § 3582(c)(2) (allowing a sentencing reduction for defendants who were sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered).

The Court held that district court could not deny the reduction based on waiver, when the issue was not raised by the government.  Rather, in that scenario, the government has waived the waiver.

Here's some good language on waiver for us appellate people.

“But as a general rule, our adversary system is designed around the premise that the parties know what is best for them, and are responsible for advancing the facts and arguments entitling them to relief.”

 “The rule that points not argued will not be considered is more than just a prudential rule of convenience; its observance, at least in the vast majority of cases, distinguishes our adversary system of justice from the inquisitorial one.”

8/9/19: Good faith decision

In United States v. Jobe, --- F.3d ---, No. 18-50204 (9th Cir. 2019), the Court reversed the district court's grant of a suppression motion on the government's appeal. 

In short, the Court held that, even assuming the 21-day delay between the seizure of the laptop pursuant to the state warrant and the search of the laptop pursuant to the federal warrant was unreasonable, suppression was not warranted.   The agent acted in good faith and his actions were reasonable.

7/29/19: Supervised release decision - "frequent" means more than once

In United States v. Ochoa, --- F.3d ---, No. 18-10383 (9th Cir. 2019), the Court reversed in part and affirmed in part the district court’s finding that the defendant violated his supervised release.

The special condition at issue prohibited him from frequenting a place whose primary purpose is to provide access to material depicting and/or describing sexually explicit conduct.

The Court reversed the district court’s finding that the defendant violated the condition by visiting an adult-themed business once.  Looking to the dictionary definition, it said "frequent" must be more than once.

Otherwise, the Court rejected the defendant's claim that the condition was unconstitutionally over-broad and vague.  It held the condition was not meaningfully distinguishable from the one it approved in United States v. Gnirke, 775 F.3d 1155, 1166 (9th Cir. 2015).

7/24/19: Good decision on sec 1325 prosecutions

As part of operation streamline in the Southern District, the government was charging almost everyone with misdemeanor violations of 18 U.S.C. § 1325(a)(2), eluding examination or inspection by immigration officers. 

In United States v. Corrales-Vazquez, --- F.3d ---, No. 18-50206 (9th Cir. 2019), the Court held someone who crosses into the country at a non-designated time or place (i.e., not at a port of entry) is not guilty under § 1325(a)(2).

Rather, to convict  under § 1325(a)(2), the government must prove the conduct occurred at a time and place designated for “examination or inspection by immigration officers”—i.e., at a port of entry open for inspection.

In short, the government has been charging people who try to cross through the hills or the desert, etc., under the wrong statute.  It should have been charging violations of 1325(a)(1), which makes it a crime to enter the United States outside a port of entry.

This is a split decision in which Judge Bybee concurs with this own majority opinion.  He takes aim at the official restraint doctrine.  I would not be surprised by an en banc call on that issue in the near future.

7/23/19: two cases today

Two published criminal decisions today.  Not much good news for the defense bar.

First, United States v. Lindsay, --- F.3d ---, No. 16-10349 (9th Cir. 2019), is heads you win, tails I lose case.  The Court affirmed the defendant's conviction over a host of creative defense arguments.  It then reversed the sentence on the government's appeal.

The appeal arose from the defendant's convictions for travel with intent to engage in illicit sexual conduct, engaging in illicit sexual conduct abroad, attempted witness tampering, and obstruction of justice.

The opinion covers too much ground for me to summarize, so here's what the Ninth Circuit 's summary says:

Agreeing with the analysis of the Fourth and Tenth Circuits, the panel held that 18 U.S.C. § 2423(c), which prohibits engaging in illicit sexual conduct in foreign places, did not exceed Congress’s authority under the Foreign Commerce Clause, as applied to the criminalization of non-commercial sexual abuse of a minor. Applying rational basis review, the panel concluded that the elements of the crime fairly relate to foreign commerce.  

The panel held that the district court did not err in its jury instruction on the intent element of § 2423(b), which prohibits traveling abroad with intent to engage in illicit sexual conduct. The district court also did not err by failing to instruct the jury on a “reasonable belief” defense to § 2423(b).  

The panel held that the district court did not abuse its discretion by excluding defendant’s foreign deposition testimony, excluding evidence of an extortion plot, or admitting evidence of defendant’s sexual relations with other underage individuals.  

On the government’s cross-appeal of the sentence, the panel held that the district court miscalculated the Sentencing Guidelines range by failing to apply an obstruction of justice enhancement under U.S.S.G. § 3C1.1. The panel therefore vacated the sentence and remanded for resentencing.

Next, in United States v. Iwai, --- F.3d ---, No. 18-10015 (9th Cir. 2019), a divided panel affirmed the district court's denial of a motion to suppress.

In brief, an agent knocked on the defendant's door and announced himself.  Then, without a warrant, he forced entry after hearing sounds he thought might be the defendant destroying evidence.

The majority concluded exigent circumstances justified the entry.

Dissenting Judge Bybee points out the agents lacked facts supporting exigent circumstances and, in any event, created the exigent circumstances when they violated the Fourth Amendment in their knock and announce at the apartment door. 

7/22/19: Hyde Amendment & Speedy Trial

Two cases today.

First, in United States v. Mixon, --- F.3d ---, No. 18-10216 (9th Cir. 2019), the Court affirmed the district court’s denial of a motion for attorneys’ fees under the Hyde Amendment. 

The Hyde Amendment allows the district court to order attorneys' fees for a prevailing criminal defendant when “the position of the United States was vexatious, frivolous, or in bad faith.” 18 U.S.C. § 3006A note.

Here, the defendant conceded there was no prosecutorial misconduct, alleging instead misconduct by the investigating agents. 

The Court held, "unless there is serious misconduct on the part of prosecutors—those empowered to make litigation decisions on behalf of the United States—a court could not hold that “the position of the United States” as a whole was vexatious, frivolous, or in bad faith. 18 U.S.C. § 3006A note. In other words, in the absence of prosecutorial misconduct, a defendant cannot make out a claim for attorneys’ fees under the Hyde Amendment."

Second, in United States v. Myers, --- F.3d ---, No. 17-30159 (9th Cir. 2019), the Court vacated the district court’s dismissal of a criminal defendant’s speedy trial claim and remanded.

This case concerns defendants' Sixth Amendment right to a speedy trial (not the Speedy Trial Act) when a federal prosecution is delayed pending resolution of a state prosecution.

The Court declined to adopt a per se rule that the government has a valid reason to delay a federal prosecution when the defendant is subject to concurrent state proceedings.  Instead, it adopted an ad hoc approach to evaluating they delay, holding that a trial court must consider the nature and circumstances of the delay in order to determine whether (and how much) it weighs against the government.

Because it was unclear whether the district court applied the correct standard, the Court remanded.  Of note, the delay here was 22 months, which raised a presumption of prejudice.

7/11/19: Murder for hire and a crime of violence

Two cases today, both straightforward.

First, in United States v. Perez, --- F.3d ---, No. 17-10216 (9th Cir. 2019), the Court held that Cal. PC Section 243(d) (battery resulting in serious bodily injury) is a "crime of violence" under section 4B1.2(a)(1) of the Sentencing Guidelines. 

The Court explained: "Because 'serious bodily injury' is defined as 'a serious impairment of physical condition,' Cal. Penal Code § 243(f)(4), we must likewise conclude that a person cannot be convicted under § 243(d) 'unless he willfully and unlawfully applies force sufficient to not just inflict a physical injury on the victim, but to inflict' a severe physical injury. As a result, section 243(d) 'fits squarely within the term [crime of violence] by requiring the deliberate use of force that injures another.'"

Second, in United States v. Phillips, --- F.3d ---, No. 18-50138 (9th Cir. 2019), the Court affirmed the defendant's conviction for conspiracy to use interstate telephone calls in the commission of a murder-for-hire, in violation of 18 U.S.C. § 1958. 

The Court held that the defendant’s promise to forgive an uncollectible and legally unenforceable debt satisfies the pecuniary value requirement of § 1958: 

"[T]he pecuniary value requirement does not require the murder-for-hire agreement to comport with contract rules, as Congress did not aim § 1958 only at murderous businessmen. After all, debt enforcement is the sine qua non of the criminal underworld. While there may be no honor among thieves, there are certainly obligations—as Don Corleone, on the day of his daughter’s wedding, made clear to Amerigo Bonasera. It is enough that Suiaunoa received money from Phillips and felt obligated to pay him back. Phillips’ promise to relieve Suiaunoa of this debt, in return for Fruchter’s murder, gave Suiaunoa an economic benefit, satisfying the pecuniary value requirement of murder-for-hire."

7/10/19: Affirmative defenses and recusal

In United States v. Carey, --- F.3d ---, No. 18-10188 (9th Cir. 2019), the Court affirmed the defendant's misdemeanor conviction for BASE jumping in Yosemite.

The Court concluded the permit exception in 36 C.F.R. § 2.17(a)(3) – which prohibits delivering or retrieving a person or object by parachute, helicopter, or other airborne means – is an affirmative defense for which the defendant, not the government, bore the burden of proof.

Of note is the extended discussion on this issue.  If you have a case where it is unclear whether you are dealing with an element or affirmative defense, this decision is a good place to start.

The Court also concluded the magistrate judge did not need to recuse himself despite reading an article about the case.

6/24/19: In our republic, a speculative possibility that a man’s conduct violated the law should never be enough to justify taking his liberty

The subject line comes from Justice Gorsuch's opinion in United States v. Davis, 588 U.S. --- (2019).

Long opinion short: The residual clause of section 18 U.S.C 924(c) -- 924(c)(3)(B) -- was struck down as unconstitutionally vague.  The decision follows closely on Johnson and Dimaya.  

This is very good news.

7/9/19: LWOP for Juvis and marijuana injunctions

Two cases from the Ninth today.

First, in United States v. Briones, --- F.3d ---, 16-10150 (9th Cir. 2019), the en banc Court reversed the defendant's life sentence. 

The defendant was a juvenile at the time of the murder at issue.  The district court imposed a life sentence.  The Ninth Circuit held that, in doing so, it did not appear the court properly considered the factors in Miller v. Alabama, 567 U.S. 460 (2012).  Under Miller, a sentence of life without the possibility of parole is constitutionally permissible only for “the rarest of juvenile offenders”—specifically, those whose “crimes reflect permanent incorrigibility” and “irreparable corruption.”

The Court thus remanded the case for consideration of the entirety of [the defendant's] sentencing evidence.

Here is a good line from the decision about appellate review of sentencing decisions: "District courts’ sentencing decisions are entitled to deference, but this deference is not absolute."

Second, in United States v. Evans, --- F.3d ---, No. 17-30185 (9th Cir. 2019), the Court affirmed the district court's denial of a motion by two medical marijuana growers to enjoin their federal prosecutions for violations of the Controlled Substances Act.

You may recall the earlier decision in United States v. McIntosh, 833 F.3d 1163 (9th Cir. 2016).  There, the Court held that, based on a Congressional appropriations rider, DOJ could not spend appropriated funds to prosecute individuals who engaged in conduct permitted by the State Medical Marijuana Laws.

This case flows from McIntosh.  Here, the district court held a hearing and determined that, because the defendants were not in strict compliance with the state's medical marijuana law, the DOJ could prosecute them.

The Ninth Circuit affirmed.  If you have a medical marijuana case, you should read this decision. 

6/26/19: Only a jury, acting on proof beyond a reasonable doubt, may take a person’s liberty.

Another SCOTUS decision, another opinion by Justice Gorsuch, another win for the defense bar.

In United States v. Haymond, 588 U.S. --- (2019), Justice Gorsuch begins: "Only a jury, acting on proof beyond a reasonable doubt, may take a person’s liberty. That promise stands as one of the Constitution’s most vital protections against arbitrary government."

This case, in the Apprendi line, involved supervised release violation sentencing under 18 U.S.C.  §3583(k).  Under that provision, if a judge finds by a preponderance of the evidence that a defendant on supervised release committed one of several enumerated offenses, including the possession of child pornography, the judge must impose an additional prison term of at least five years and up to life without regard to the length of the prison term authorized for the defendant’s initial crime of conviction.

The Court found this mandatory minimum sentence, based on judge-found facts, unconstitutional.  It remanded to the 10th Circuit to determine remedy: whether the mandatory minimum had to be excised or whether the district court could impanel a sentencing jury 

Here are some aspects of the opinion I found noteworthy:

• "At oral argument, the government even conceded that, under its theory, a defendant on supervised release would have no Sixth Amendment right to a jury trial when charged with an infraction carrying the death penalty. We continue to doubt whether even Apprendi’s fiercest critics 'would advocate' such an 'absurd result.'"  

• FN 7: "Just as we have no occasion to decide whether §3583(k) implicates Apprendi by raising the ceiling of permissible punishments beyond those authorized by the jury’s verdict, see n. 4, supra, we do not pass judgment one way or the other on §3583(e)’s consistency with Apprendi. Nor do we express a view on the mandatory revocation provision for certain drug and gun violations in §3583(g), which requires courts to impose 'a term of imprisonment' of unspecified length." [This FN is really important.  We should preserve constitutional challenges to mandatory imprisonment under section 3583(e)].

Finally, here is a really good passage to end on:

In the end, the dissent is left only to echo an age-old criticism: Jury trials are inconvenient for the government. Yet like much else in our Constitution, the jury system isn’t designed to promote efficiency but to protect liberty. In what now seems a prescient passage, Blackstone warned that the true threat to trial by jury would come less from “open attacks,” which “none will be so hardy as to make,” as from subtle “machinations, which may sap and undermine i[t] by introducing new and arbitrary methods.” 4 Blackstone 343. This Court has repeatedly sought to guard the historic role of the jury against such incursions. For “however convenient these may appear at first, (as doubtless all arbitrary powers, well executed, are the most convenient) yet let it be again remembered, that delays, and little inconveniences in the forms of justice, are the price that all free nations must pay for their liberty in more substantial matters.” 

6/21/19: SCOTUS Decisions on 922 (gun) crimes and a Batson case

The Supreme Court gives two wins to the defense bar today. 

The most impact will come from Rehaif v. United States, 588 U.S. --- (2019).  The Court held that for prosecutions under 18 U. S. C. §922(g) (gun crimes like felon in possession, etc.) the knowledge requirement extends to the defendant's prohibited status.  

In other words, in a felon in possession case for instance, the government will have to prove both that the defendant knowingly possessed the gun, and knew of his or her felony status: "To convict a defendant, the Government therefore must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it. "

This is a big change.  And as the dissent points out, it may entitle many people with prior 922 convictions to seek relief (though that is speculation at this point).  

In any event, this is a very good decision.  

In the other case, Flowers v. Mississippi, 588 U.S. --- (2019), the Supreme Court vacated a murder conviction based on a Batson violation.   Here are the salient points:

Four critical facts, taken together, require reversal. First, in the six trials combined, the State employed its peremptory challenges to strike 41 of the 42 black prospective jurors that it could have struck—a statistic that the State acknowledged at oral argument in this Court. Tr. of Oral Arg. 32. Second, in the most recent trial, the sixth trial, the State exercised peremptory strikes against five of the six black prospective jurors. Third, at the sixth trial, in an apparent effort to find pretextual reasons to strike black prospective jurors, the State engaged in dramatically disparate questioning of black and white prospective jurors. Fourth, the State then struck at least one black prospective juror, Carolyn Wright, who was similarly situated to white prospective jurors who were not struck by the State.  

We need not and do not decide that any one of those four facts alone would require reversal. All that we need to decide, and all that we do decide, is that all of the relevant facts and circumstances taken together establish that the trial court committed clear error in concluding that the State’s peremptory strike of black prospective juror Carolyn Wright was not “motivated in substantial part by discriminatory intent.” Foster v. Chatman, 578 U. S. ___, ___ (2016) (slip op., at 23) (internal quotation marks omitted). In reaching that conclusion, we break no new legal ground. We simply enforce and reinforce Batson by applying it to the extraordinary facts of this case. 

6/13/19: A couple of very good Fourth Amendment decisions

The first case is a rare Fourth Amendment decision that arose in the immigration context. 

In Perez Cruz v. Barr, --- F.3d ---, No. 15-70530 (9th Cir. 2019), the Ninth Circuit ordered suppression and dismissal of the removal proceedings. 

Here is the intro to Judge Berzon's opinion:

Immigration and Customs Enforcement (ICE) agents implemented a preconceived plan to “target” over 200 factory workers for detention and for interrogation as to their immigration status. The plan turned on obtaining and executing a search warrant for employment records at the factory. The record before us establishes that the search warrant for documents was executed “in order to” arrest undocumented workers present at the factory. Our central question is whether the ICE agents were permitted to carry out preplanned mass detentions, interrogations, and arrests at the factory, without individualized reasonable suspicion. We hold that they were not.

This decision delves deeply into the applicability of Michigan v. Summers, 452 U.S. 692 (1981), which held that a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.

The Court held that Summers did not apply in this context, because the search warrant was plainly a ruse:  "We hold that Summers’ categorical authority to detain incident to the execution of a search warrant does not extend to a preexisting plan whose central purpose is to detain, interrogate, and arrest a large number of individuals without individualized reasonable suspicion."

The Court further found that the evidence at issue -- admissions and a birth certificate -- were subject to suppression because they were not evidence of identity.  Rather, they were evidence of alienage.

Although this opinion is dense, it is worth a read.

A less dense, but equally worthy read is United States v. Moore-Bush, 18-30001 (D. Mass. 2019). In this case, the Court ordered suppression of pole-camera footage taken over a period of eight months without a warrant.

The Court relied heavily on Carpenter to find the defendants' had a reasonable expectation of privacy in their comings and goings from their home.

This is a must read and should prompt motions to suppress pole camera evidence.

6/12/19: Good case on double jeopardy in the mistrial context

In Gouveia v. Espinda, --- F.3d ---, No. 17-16892 (9th Cir. 2019), the Court affirmed the district court's grant of habeas relief. 

This is an interesting manslaughter case arising from state court in Hawaii.  The trial court granted a mistrial after the jury reached a verdict but before the verdict was announced, because jurors expressed concern for their safety due to a "scary-looking man" in the courtroom.   The verdict reached was not guilty.

The Ninth Circuit agreed with the district court that the state court erred in finding manifest necessity for a mistrial because the jurors all said the scary man did not impact their verdict.  Thus, there could be no retrial.

Procedurally, this case is very different because it was decided under 28 USC 2241, not 2254.  The opinion contains extended discussions of jurisdiction, deference, and the Rooker-Feldman doctrine (under which “a federal district court does not have subject matter jurisdiction to hear a direct appeal from the final judgment of a state court.”)

My favorite line in the decision comes from the Court's explanation for why the doctrine has no application to this case: "it is rare that we are asked to address an argument so transparently without merit."

6/11/19: Good case on factual basis requirement for guilty plea

In United States v. Bain, --- F.3d ---, No. 17-10107 (9th Cir. 2019), on plain error review, the Court vacated the defendant's armed bank robbery conviction under 18 U.S.C. § 2113(d).

The Court held that the factual basis for the plea was plainly insufficient. 

The central fact was that, during the robbery, the defendant "inadvertently placed a closed pocket knife on the bank’s counter while pulling a plastic bag out of his pocket."  The Court determined "this action did not 'put[] in jeopardy the life of any person by the use of a dangerous weapon,' which is a requirement for armed bank robbery under 18 U.S.C. § 2113(d)."

The Court also vacated the defendant's sentence.

6/10/19: SCOTUS case on burglary under the categorical approach

In Quarles v. United States, 587 U.S. --- (2019), the Court considered "whether remaining-in burglary (i) occurs only if a person has the intent to commit a crime at the exact moment when he or she first unlawfully remains in a building or structure, or (ii) more broadly, occurs when a person forms the intent to commit a crime at any time while unlawfully remaining in a building or structure."  It adopted the second interpretation.

To sum up: The Armed Career Criminal Act does not define the term “burglary.” In Taylor, the Court explained that “Congress did not wish to specify an exact formulation that an offense must meet in order to count as ‘burglary’ for enhancement purposes.” Id., at 599. And the Court recognized that the definitions of burglary “vary” among the States. Id., at 598. The Taylor Court therefore interpreted the generic term “burglary” in §924(e) in light of: the ordinary understanding of burglary as of 1986; the States’ laws at that time; Congress’ recognition of the dangers of burglary; and Congress’ stated objective of imposing increased punishment on armed career criminals who had committed prior burglaries. Looking at those sources, the Taylor Court interpreted generic burglary under §924(e) to encompass remaining-in burglary. Looking at those same sources, we interpret remaining-in burglary under §924(e) to occur when the defendant forms the intent to commit a crime at any time while unlawfully present in a building or structure.

Justice Thomas concurs to urge the Court to reconsider Taylor and "end the unconstitutional judicial factfinding that occurs when applying the categorical approach." 

Finally, I note that "Quarles" is a great name for a case (yes, I know how to spell quarrel).

6/7/19: Interesting habeas on the voluntariness of a guilty plea

In United States v. Yong, --- F.3d ---, No. 17-16017 (9th Cir. 2019), the Court affirmed the district court’s denial of the petitioner's 28 U.S.C. § 2255 motion to vacate his guilty plea and set aside his misdemeanor conviction related to operating an unlawful sports betting operation.

The defendant raised two challenges to the voluntariness of his plea.  First, he said it was improperly conditioned on leniency for his son.  Second, he claimed the plea was tainted by government misconduct.

As to the first issue, the Court joined the other Circuits in holding: "the Government must have probable cause to prosecute a third party when it conditions leniency for that party in exchange for a defendant’s guilty plea. We note that these courts have used wording that focuses on whether probable cause was present at the time the threat was made or lenity offered. A prosecutor’s improper coercion actually takes effect, though, when a defendant pleads guilty as a result of the threat or offer of lenity. Therefore, a defendant may successfully challenge the voluntariness of his plea by showing that probable cause to prosecute the third party did not exist at the time the defendant pleaded guilty, even if the Government had probable cause to prosecute at an earlier time."

Further, "the Government must also have probable cause to prosecute the defendant being offered the plea in exchange for leniency for a third party, in addition to probable cause to prosecute the third party. In other words, a 'high standard of good faith' requires the Government to have probable cause both to prosecute the defendant and to prosecute the third party at the time the defendant enters the plea agreement in exchange for leniency for the third party."

The Court, however, found the government had probable cause as to both the petitioner and his son.  Thus, the plea was not involuntary on this ground.

As to the second issue, there was no question the government engaged in serious misconduct. It created a ruse to gain access to the petitioner's room and then failed to provide that information in seeking a search warrant.

The Court agreed that deliberate fabrications by law enforcement officers used to obtain search warrants could render a subsequent plea involuntary.    But this was so only if the defendant did not know of the misconduct at the time of the plea.   Here, the Court held: "Given Yong’s awareness of the Government’s misconduct and his decision to plead guilty nevertheless, we do not believe that the misconduct tainted his guilty plea or otherwise improperly induced it."

6/6/19: A gun case with an interesting Confrontation Clause issue & and an important decision on career offender Guidelines

First, in United States v. Benamor, --- F.3d ---, No. 17-50308 (9th Cir. 2019), the Court affirmed the defendant's conviction for being a felon in possession of a firearm under 18 USC 922(g)(1).

The firearm at issue was a shotgun manufactured around 1920.  The defendant argued he was entitled to an instruction on the antique firearms exception (that, to convict, the jury had to find that the defendant knew that his firearm was manufactured after 1898).

The Court disagreed.  Joining the other Circuits, it held a firearm’s antique status is an affirmative defense in a criminal prosecution.  And the defendant failed to meet his burden of production to put the “antique firearm” affirmative defense at issue.

More interesting is the Confrontation Clause issue.  An agent interviewed defendant’s landlord, who told him that she had seen defendant "with a very old or antique firearm."    At trial, the agent testified:

Q: Did your discussion with [the landlord] confirm your decision to arrest Mr. Benamor for the firearm and ammunition?

A: Yes, it did.

The Court held, "[i]n context, that answer implied that the landlord confirmed that Defendant possessed the shotgun and the ammunition."  This was a clear Confrontation Clause violation: "If the government’s argument prevailed here, then “every time a person says to the police 'X committed the crime,' the statement (including all corroborating details) would be admissible to show why the police investigated X. That would eviscerate the constitutional right to confront and cross-examine one’s accusers."

The Court, however, found the error harmless.

Moving to the Sixth Circuit, in United States v. Havis, --- F.3d ---, No. 17-5772 (6th Cir. 2019), the en banc court considered "whether the definition of 'controlled substance offense' in § 4B1.2(b) includes attempt crimes."  Although the Guideline's commentary says it does, the Guideline itself makes no mention to attempt crimes (or conspiracy).

The Court found the Commission could not add attempt crimes in the commentary:

"The guideline expressly names the crimes that qualify as controlled substance offenses under § 2K2.1(a)(4); none are attempt crimes. And the Commission knows how to include attempt crimes when it wants to—in subsection (a) of the same guideline, for example, the Commission defines “crime of violence” as including offenses that have “as an element the use, attempted use, or threatened use of physical force against the person of another.” USSG § 4B1.2(a) (emphasis added). 

To make attempt crimes a part of § 4B1.2(b), the Commission did not interpret a term in the guideline itself—no term in § 4B1.2(b) would bear that construction.4 Rather, the Commission used Application Note 1 to add an offense not listed in the guideline. But application notes are to be “interpretations of, not additions to, the Guidelines themselves.” Rollins, 836 F.3d at 742. If that were not so, the institutional constraints that make the Guidelines constitutional in the first place—congressional review and notice and comment— would lose their meaning.  The Commission’s use of commentary to add attempt crimes to the definition of “controlled substance offense” deserves no deference. The text of § 4B1.2(b) controls, and it makes clear that attempt crimes do not qualify as controlled substance offenses.

6/5/19: "David Derek Brown, who is a black man, had the misfortune of deciding to avoid contact with the police."

In United States v. Brown, --- F.3d ---, No. 17-30191 (9th Cir. 2019), the Court reversed the district court's denial of the defendant's motion to suppress.

Here is the Opinion's intro:

David Derek Brown, who is a black man, had the misfortune of deciding to avoid contact with the police. Following an anonymous tip that a black man was carrying a gun—which is not a criminal offense in Washington State—police spotted Brown, who was on foot, activated their lights, and pursued him by car, going the wrong direction down a one-way street. Before flashing their lights, the officers did not order or otherwise signal Brown to stop. Brown reacted by running for about a block before the officers stopped him at gunpoint. 

With no reliable tip, no reported criminal activity, no threat of harm, no suggestion that the area was known for high crime or narcotics, no command to stop, and no requirement to even speak with the police, we are left with little more than Brown’s flight from the officers, which is not enough under the circumstances. In today’s world, Justice Stevens’ observations some twenty years ago are particularly prescient: 

     Among some citizens, particularly minorities and those residing in high crime areas,         there is also the possibility that the fleeing person is entirely innocent, but, with or           without justification, believes that contact with the police can itself be dangerous,             apart from any criminal activity associated with the officer’s sudden presence. Illinois       v. Wardlow, 528 U.S. 119, 132 (2000) (Stevens, J., concurring in part and dissenting         in part). 

Without more specific, articulable facts supporting their actions, we conclude that the officers lacked the requisite reasonable suspicion that criminal activity was afoot before stopping Brown. Accordingly, we reverse the district court’s order denying Brown’s motion to suppress. 

The Court also notes:

• "In evaluating flight as a basis for reasonable suspicion, we cannot totally discount the issue of race."  

• "Given that racial dynamics in our society—along with a simple desire not to interact with police—offer an “innocent” explanation of flight, when every other fact posited by the government weighs so weakly in support of reasonable suspicion, we are particularly hesitant to allow flight to carry the day in authorizing a stop."

5/30/19: Life sentence vacated

Happy to be sharing one of our cases today.   

In United States v. Graves, --- F.3d ---, No. 16-50276 (9th Cir. 2019), the Court vacated our client's life sentence.

In this drug case, the government filed a double 851-enhancement, such that the mandatory minimum was life.  

On appeal, the argument centered on whether one of the alleged predicate convictions, for inmate drug possession under California Penal Code § 4573.6 (2007), qualified as a triggering “felony drug offense.” 

The Ninth agreed that like other California drug statutes section 4573.6 was overbroad.  And it further agreed with us that unlike other drug statutes it was not divisible.  Thus, it could not qualify as a predicate for federal sentencing purposes.  

Finally, although the district court indicated it would impose a life sentence even if one were not mandated, the Court agreed the error was not harmless, vacated the sentence, and remanded.

5/24/19: Good case from the 2d Cir. on permissible inference versus speculation

A slow week in the Ninth lets us head East. 

In United States v. Pauling, --- F.3d ---, No. 17-2539-cr (2d Cir. 2019), the Second Circuit affirmed the district court's grant of a Rule 29 motion on a drug conspiracy count.

The defendant was charged with conspiracy to distribute 100 grams of heroin.  The parties agreed the government proved 89 grams, but not the other 11 grams.

The Second Circuit agreed with the district court that evidence was insufficient on those additional 11 grams.

There is a helpful discussion of the difference between permissible inference and speculation:

ʺAn inference is not a suspicion or a guess.  It is a reasoned, logical decision to conclude that a disputed fact exists on the basis of another fact that is known to exist.ʺ  Siewe v. Gonzales, 480 F.3d 160, 168 (2d Cir. 2007) (alterations omitted) (quoting Bickerstaff v. Vassar Coll., 196 F.3d 435, 448 (2d Cir. 1999)).   Impermissible speculation, on the other hand, is ʺa complete absence of probative facts to support the conclusion reached.ʺ  Lavendar v. Kurn, 327 U.S. 645, 653 (1946).  While we must defer to a juryʹs reasonable inferences, we give no deference to impermissible speculation.  United States v. DʹAmato, 39 F.3d 1249, 1256 (2d Cir. 1994).  

The line between permissible inference and impermissible speculation ʺis drawn by the laws of logicʺ and not ʺjudicial idiosyncrasies.ʺ  Tose v. First Pa. Bank, N.A., 648 F.2d 879, 895 (3d Cir. 1981), abrogated on other grounds by Griggs v. Provident Consumer Discount Co.,  459 U.S. 56 (1982).  As the Supreme Court has instructed, ʺthe essential requirement is that mere speculation be not allowed to do duty for probative facts, after making due allowance for all reasonably possible inferences favoring the party whose case is attacked.ʺ   Galloway v. United States, 319 U.S. 372, 395 (1943).  Thus, in a criminal case, ʺthe government must do more than introduce evidence ʹat least as consistent with innocence as with guilt.ʹʺ  DʹAmato, 39 F.3d at 1256 (quoting United States v. Mulheren, 938 F.2d 364, 372 (2d Cir. 1991)).  

At times it may be difficult to distinguish between inference and speculation, as some speculation may indeed be reasonable.  Reasonable speculation occurs when the finder of fact concludes that a disputed fact exists that is within the realm of possibility, but the conclusion reached is nevertheless unreasonable because it is not logically based on another fact known to exist.  See Langston v. Smith, 630 F.3d 310, 314, 319 (2d Cir. 2011) (noting distinction between ʺreasonable speculationʺ and ʺsufficient evidenceʺ); Leonard B. Sand et al., Modern Federal Jury Instructions § 6.01 (2011) (ʺThe process of drawing inferences from facts in evidence is not a matter of guesswork or speculation.  An inference is a deduction or conclusion which . . . the jury [is] permitted to draw . . from facts which have been established by either direct or circumstantial evidence.ʺ); see also OʹLaughlin v. OʹBrien, 568 F.3d 287, 301‐02 (1st Cir. 2009); Newman v. Metrish, 543 F.3d 793, 796‐97 (6th Cir. 2008).  Indeed, we ʺmay not credit inferences within the realm of possibility when those inferences are unreasonable.ʺ  United States v. Quattrone, 441 F.3d 153, 169 (2d Cir. 2006).     

ʺ[W]here a fact to be proved is also an element of the offense ‐‐ here, [drug quantity] ‐‐ it is not enough that the inferences in the governmentʹs favor are permissible.  We must also be satisfied that the inferences are sufficiently supported to permit a rational juror to find that the element, like all elements, is established beyond a reasonable doubt.ʺ  United States v. Martinez, 54 F.3d 1040, 1043 (2d Cir. 1995); see also Sand et al., supra, § 6.01 (ʺ[W]hether based upon direct or circumstantial evidence, or upon logical, reasonable inferences drawn from such evidence, [the jury] must be satisfied of the guilt of the defendant beyond a reasonable doubt before [it] may convict.ʺ).  ʺ[I]t would not satisfy the Constitution to have a jury determine that the defendant is probably guilty.ʺ   United States v. Lorenzo, 534 F.3d 153, 159 (2d Cir. 2008).