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).

5/16/19: Campaign finance case

In United States v. Singh, --- F.3d ---, No. 17-50337 (9th Cir. 2019), the Court affirmed in part, reversed in part, and remanded for resentencing. 

This was the appeal from the Azano mayoral contribution scandal.  The opinion is 50 pages dealing with a host of issues. 

The Court rejected most of the arguments, but agreed the evidence was insufficient as to one count, and remanded for resentencing.  The Ninth Circuit's summary is below. 

The panel reversed Jose Susumo Azano Mastura’s and Ravneet Singh’s convictions on count 37 for falsification of campaign records, affirmed all other convictions, vacated the sentences, and remanded for resentencing, in a case in which Azano, a foreign national, and his co-conspirators sought to influence local politicians during the 2012 San Diego election cycle by providing campaign contributions.

Rejecting appellants’ contention that Congress lacks the power to prohibit foreign nationals from donating and contributing to state and local elections, the panel held that Congress acted within its constitutional authority in enacting 52 U.S.C. § 30121(a). Bound by the Supreme Court’s summary affirmance in Bluman v. FEC, 800 F. Supp. 2d 281 (D.D.C. 2011), aff’d, 565 U.S. 1104 (2012), the panel rejected appellants’ contention that § 30121(a) violates foreign nationals’ First Amendment rights.

The panel rejected appellants’ contention that 52 U.S.C. § 30109(d), the penalty provision applicable to violations of § 30121, requires that the government prove that a defendant harbors the specific intent to evade § 30121, not merely the intent to commit unlawful conduct. As to the jury instruction on the charge that Singh aided and abetted Azano’s unlawful donations, the panel rejected Singh’s argument that the district court’sfailure to include the element that Singh knew Azano lacked immigration status constitutes reversible error. The panel held that the instructions as a whole adequately covered the element of Singh’s knowledge of Azano’s immigration status.

Appellants contested their convictions under counts 5 through 37, arguing there was insufficient evidence to satisfy the material elements of 18 U.S.C. § 1519 (falsifying campaign records).

• Singh argued that § 1519 requires an affirmative act, and that a mere omission, without an affirmative duty, cannot satisfy the actus reus element. The panel held that an omission satisfies the actus reus element for § 1519. The panel observed that Singh was not simply convicted under § 1519, but under 18 U.S.C. § 2(b) (willfully causing an act to be done which if directly performed by him or another would be an offense against the United States) in conjunction with § 1519, in which scenario the actus reus element merges with the mens rea element to focus liability on the person harboring the criminal intent. The panel wrote that the government thus did not need to prove that Singh prepared the campaign disclosure forms or had a duty to report Azano’s patronage; rather, that the campaign had a duty to report the information was enough, and § 2(b) authorized holding accountable those with the intent to conceal or falsify records.

• Regarding causation under § 2(b), the panel held that the government presented sufficient evidence for a jury to find that Singh willfully caused the Bonnie Dumanis primary mayoral election campaign to file falsified reports, and therefore affirmed appellants’ convictions under count 32. The panel found insufficient evidence that Singh willfully caused the Bob Filner general mayoral election campaign to file falsified reports, and therefore reversed the convictions under count 37.

• Regarding the § 1519 element of an investigation by the United States of a matter within its jurisdiction, the panel held that a jury could reasonably infer that Singh contemplated an investigation due to unlawful activity and intended to direct that investigation away from himself. Singh argued that any investigation of his conduct is not within the jurisdiction of the United States because his conduct involved a local campaign and the falsified campaign disclosure forms violated only state and local law. The panel rejected this contention because the campaign disclosure forms were sought in connection with the FBI’s investigation of a federal crime.

• As to counts 5 through 31 and 33 through 36, the panel concluded that a reasonable jury could find beyond a reasonable doubt that Azano concealed his identity from these campaigns by recruiting straw donors, and that he willfully caused both campaigns to file false reports with the intent of obstructing a potential investigation.

Rejecting Singh’s challenges to his conspiracy conviction, the panel held that the jury instructions adequately covered Singh’s multiple conspiracy theory, and that there was sufficient evidence to show a single conspiracy.

The panel affirmed Azano’s conviction under 18 U.S.C. § 922(g)(5)(B) for unlawfully possessing a firearm as a nonimmigrant visa holder. Applying intermediate scrutiny to Azano’s Second Amendment challenge, and assuming without deciding that the Second Amendment extends to nonimmigrant visa holders, the panel held that § 922(g)(5)(B)’s prohibition on firearm possession and ownership by nonimmigrant visa holders serves an important public interest in crime control and public safety, without substantially burdening a nonimmigrant visa holder’s assumed Second Amendment right. The panel rejected Azano’s contentions that his possession of a gun as a B2 visa holder fell within the “pleasure” designation in 22 C.F.R. § 41.31.(b)(2) or automatically qualified as a “sporting purpose” pursuant to 18 U.S.C. § 922(y)(2). The panel also rejected Azano’s contention that § 922(g) is unconstitutionally vague as applied to B1/B2 visa holders.

The panel held that the district court did not abuse its discretion in denying Azano’s motion for a new trial based on alleged ineffective assistance of his trial counsel, and declined to entertain his ineffective-assistance claim on direct appeal. The panel held that Singh waived his argument that the district court abused its discretion in denying his motion to sever his trial from all defendants except Azano. The panel held that the record does not support Singh’s claim that the joint trial compromised his due process rights.

5/15/19: Helpful prosecutorial misconduct case

No decisions today in the Ninth, so heading to the Sixth Circuit.

In United States v. Acosta, --- F.3d ---, Nos. 18-5207/5212 (6th Cir. 2019), the Court vacated the defendants' drug convictions based on "flagrant misconduct" by the prosecution.

The opinion is worth a read, and it is a good reminder to object even during closing arguments. 

First, there is a really helpful discussion of vouching.  The Court finds that comments like: "he’s testified very well, he understood and remembered everything he did" and he's "a fine young man" constituted improper vouching.

Second, the Court found improper the prosecutor's comments on credibility and assertion that a witness was lying.   The Court held, "It is patently improper for a prosecutor either to comment on the credibility of a witness or to express a personal belief that a particular witness is lying."

Third, the Court found the prosecutor committed serious misconduct in questioning one of the defendant's about his "worship of the Jesus Malverde statue."

"Here, the prosecutor did more than “briefly highlight[] [Morales-Montanez’s] testimony” with respect to Malverde, as the government argues; he also elicited testimony on Morales-Montanez’s Catholic beliefs and then implied that Morales-Montanez was violating a biblical Commandment."

Thanks to John Ellis for alerting me to this case.

5/14/19: The pitfalls of self-representation & some interesting stuff on wire fraud

In United States v. Audette, --- F.3d ---, No. 17-10017 (9th Cir. 2019), the Ninth Circuit rejected the various claims of a defendant who represented himself in wire fraud case. 

Most of the defense arguments focused on Faretta issues.  The opinion, however, does not really break new ground on anything.  That said, if you are dealing with a Faretta issue, you should read this case. 

There is another really interesting aspect of the opinion.  On concession of error from the government, the Court vacated certain counts for insufficient evidence.  Davina Chen pointed out to me the following from the Gov's brief:

Audette contends that there was insufficient evidence that his text messages to Moore (Counts 81-89) and his phone call to Warwick (Count 90), were transmitted in interstate or foreign commerce as required for a conviction of wire fraud. (Op Br. at 38-39.) The government agrees that there was insufficient evidence admitted at trial that the transmissions were “in interstate or foreign commerce” as required by this Court’s precedent. See United States v. Wright, 625 F.3d 583, 594 (9th Cir. 2010) (“criminal statutes punishing the transmission of the relevant material ‘in interstate or foreign commerce’ require the material itself to cross state lines.”).

This is important because it highlights that the government must prove the wire communication actually travelled interstate. 

One other thing that caught my attention:  "We review the district court’s failure to grant a continuance for abuse of discretion 'even where, as here, no motion for continuance was made.'"

5/10/19: Big day in the 9th - Daubert; Prop 64; and Johnson cases

First, in United States v. Ruvalcaba--Garcia, --- F.3d ---, No. 17-50288 (9th Cir. 2019), the Court affirmed the defendant's conviction for illegal reentry. 

The case is important because the Court found the district court erred in failing to make an explicit reliability finding before admitting the fingerprint analyst’s expert testimony under Daubert and Fed. R. Evid. 702.  The Court, however, found the error harmless. 

There is lots of good language to include when seeking a Daubert hearing:

The issue here is “reliability,” which requires that the expert’s testimony have “a reliable basis in the knowledge and experience of the relevant discipline.” Id. (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999)). The district court must assess whether “the reasoning or methodology underlying the testimony is scientifically valid” and “properly can be applied to the facts in issue,” Daubert, 509 U.S. at 592–93, with the goal of ensuring that the expert “employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field,” Kumho Tire, 526 U.S. at 152. “The test ‘is not the correctness of the expert’s conclusions but the soundness of his methodology,’ and when an expert meets the threshold established by Rule 702, the expert may testify and the fact finder decides how much weight to give that testimony.” Pyramid Techs., Inc. v. Hartford Cas. Ins. Co., 752 F.3d 807, 814 (9th Cir. 2014) (quoting Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010)).

[D]istrict courts do not have “discretion to abandon the gatekeeping function” altogether, Kumho Tire, 526 U.S. at 158–59 (Scalia, J., concurring), for “Rule 702 ‘clearly contemplates some degree of regulation of the subjects and theories about which an expert may testify,’” Barabin, 740 F.3d at 464 (quoting Daubert, 509 U.S. at 589). We have thus held that a district court abuses its discretion when it either “abdicate[s] its role as gatekeeper” by failing to assess “the scientific validity or methodology of [an expert’s] proposed testimony,” or “delegate[s] that role to the jury” by “admitting the expert testimony without first finding it to be relevant and reliable.” Id.; see also City of Pomona v. SQM N. Am. Corp., 866 F.3d 1060, 1069 (9th Cir. 2017) (holding that the admission of an expert’s testimony without making “any findings regarding the efficacy of [the expert’s] opinions constituted an abdication of the district court’s gatekeeping role, and necessarily an abuse of discretion”).

Second, in Prado v. Barr, --- F.3d ---, No 17-72914 (9th Cir. 2019) -- an immigration case -- the petitioner claimed her California felony conviction for possession of marijuana was no longer a predicate to removal because it was recalled and reclassified as a misdemeanor under California’s Proposition 64.

The Court rejected the argument, holding that valid state convictions retain their immigration consequences even when modified or expunged for reasons of state public policy.  The Court concluded that Prop 64 "did not completely eliminate the consequences of the conviction under CHSC § 11359 even as a matter of state law; rather, it reclassified that conviction to a misdemeanor, under the modified terms of CHSC § 11359. Common sense and our precedent dictate that partial expungement or reclassification cannot eliminate the immigration consequences of a conviction."

Third, in United States v. Fultz, --- F.3d ---, No. 17-56002 (9th Cir. 2019), the Court denied a 2255 petition brought under Johnson: 

The question presented is whether Robbery on a Government Reservation, 18 U.S.C. § 2111, is an elements clause “crime of violence,” that is, whether it is an offense that “has as an element the use, attempted use, or threatened use of physical force” under 18 U.S.C. § 924(c)(3)(A). We hold today that § 2111 Robbery is a “crime of violence” under the elements clause. 

Because § 2119 Carjacking and § 2113 Bank Robbery, by means of “intimidation,” qualifies as a “crime of violence” under the elements clause after Johnson I, so too does § 2111 Robbery.

Finally, in United States v. Orona, --- F.3d ---, No. 17-17508 (9th Cir. 2019), the Court granted the defendant's 2225 under Johnson. The Court held that, following Johnson, the defendant's 2007 conviction for aggravated assault under Arizona Revised Statute § 13-1203(A)(1) no longer qualified as a predicate felony under the ACCA.  The Court held that the Supreme Court's decision in Voisine did not overrule the en banc decision in Fernandez-Ruiz. 

5/9/19: No right to file duress proffer ex parte under seal.

In United States v. Carpenter, --- F.3d ---, No. 17-10498 (9th Cir. 2019), the Court held that the common law right of access attaches to pre-trial offers of proof for a duress defense. 

This was a kidnapping case where a defendant was allowed to pursue a duress defense, but had to file her pre-trial proffer publicly.

The Court affirmed: "We hold today only that the common law right of access attaches to pre-trial offers of proof for a duress defense, and that because [defendant] failed to provide a compelling reason to overcome this presumptive right of access, the district court did not abuse its discretion in denying [the defendant's] motion to seal her proffer."

In a minor silver lining, the Court finds error (but harmless) in admitting evidence of drug use during the kidnapping under Rule 404(b):  "Drug use 'is highly prejudicial,' and the connection between the charged offenses and the methamphetamine use was evidently slight. The low probative value of the methamphetamine use—particularly in light of the other evidence that the government introduced to establish the absence of duress and the codefendants’ state of mind—is 'substantially outweighed' by its prejudice. Fed. R. Evid. 403."

5/2/19: Restitution can be ordered for conduct outside the statute of limitations.

In United States v. Anieze-Smith, --- F.3d ---, No. 16-50208 (9th Cir. 2019), the Court "join[ed] the Eleventh Circuit in holding that a district court may order restitution for all losses resulting from a fraudulent scheme, even those caused by conduct occurring outside the statute of limitations."

This was healthcare fraud case surrounding billing medicare for durable medical equipment, specifically power wheelchairs. 

The district court sentenced the defendant to five years’ probation and ordered her to pay restitution of $814,445.95, the full amount of Medicare’s losses from the healthcare scheme.

The published opinion focuses on, and affirms, the restitution order.  Along with the statute-of-limitations issue noted above, the Court found no error in the district court's determination that each of the wheelchair bills submitted to Medicare was fraudulent, or by finding that the defendant directly harmed the victim.

The Court also rejected the defendant's argument that the restitution amount had to be limited to the five counts charged.