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.