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.