Tuesday, July 23, 2019

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.