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."
Monday, September 23, 2019
Thursday, September 19, 2019
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.”
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.”
Tuesday, September 17, 2019
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."
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."
Monday, September 16, 2019
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.
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.
Thursday, September 12, 2019
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).
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).
Wednesday, September 11, 2019
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
Thursday, September 5, 2019
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."
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."
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