12/31/20: Great 4th Amend case to end the year (with good stuff on acceptance also)

 In United States v. Dixon, --- F.3d ---, No. 19-10112 (9th Cir. 2020), the Court vacated the district court’s denial of a motion to suppress evidence resulting from a vehicle search conducted pursuant to a 4th waiver supervised release condition. 

The Court also held that the district court erred in denying Mr. Dixon's post-trial request for a 2-level acceptance of responsibility reduction.  

Beginning with the search issue, the Court applied property-based trespass theory and held that a Fourth Amendment search occurs when an officer physically inserts a key into the lock of a vehicle for the purpose of obtaining information. It further concluded the contrary decision in United States v. $109,179 in U.S. Currency, 228 F.3d 1080 (9th Cir. 2000), was clearly irreconcilable with the Supreme Court’s property-based Fourth Amendment jurisprudence in Jones and Florida v. Jardines, 569 U.S. 1 (2013).

Although Mr. Dixon was subject to a 4th waiver as a condition of supervised release, this condition only applies when the individual subject to it “exhibit[s] a sufficiently strong connection to [the property in question] to demonstrate ‘control’ over it.” In other words, "before this condition authorizes a warrantless search, officers must have a sufficient 'degree of knowledge' that the search condition applies to the place or object to be searched."

The Court further held, "before conducting a warrantless search of a vehicle pursuant to a supervised release condition, law enforcement must have probable cause to believe that the supervisee owns or controls the vehicle to be searched."

Here, "the police crossed that knowledge threshold only when they inserted the key that Dixon had dropped into the car lock, thereby confirming that he exercised control over the minivan."  As such, the initial search (inserting the key) was done without the requisite probable cause thus tainting the subsequent search of the car.  

As to acceptance of responsibility, the Court explained, a defendant “may remain silent in respect to relevant conduct beyond the offense of conviction without affecting his ability to obtain a reduction under this subsection.” Thus, the failure to admit to conduct that the jury did not convict on does not necessarily preclude acceptance of responsibility.

"Given these principles, Dixon was at least eligible for the two-point acceptance reduction because he accepted responsibility for all conduct for which he was convicted. Dixon argues that from the beginning, even before he was indicted, he admitted that he possessed the controlled substances found on his person at Bayview Station, but contested that he possessed these drugs with an intent to distribute—the charged offense on which the jury hung. In other words, the jury convicted Dixon of only the lesser included offense of simple possession, for which he had consistently admitted responsibility. The Guidelines thus permitted the district court to conclude that Dixon had accepted responsibility for his criminal conduct."

12/29/20: Aggravated identity theft case

 In United States v. Harris, --- F.3d ---, No. 19-10006 (9th Cir. 2020), the Court affirmed convictions for aggravated identity theft under 18 U.S.C. § 1028A.

Ms. Harris was the owner of a business that provided therapeutic services.  She fraudulently billed a government health care program for speech therapy services by, among other things, "submitting claims to TRICARE that falsely identified Kara Spheeris, a speech pathologist who worked for Harris Therapy, as the rendering provider for dates on which Spheeris provided no services."

The issue on appeal was whether "Harris used Spheeris’s name and NPI number 'during and in relation to' the commission of wire fraud."

The Court held she did: 

"By inputting Spheeris’s name and NPI number in the forms, Harris employed or used Spheeris’s identification. And that use was 'during and in relation' to the commission of wire fraud, as Harris used Spheeris’s 'identifying information to fashion a fraudulent submission out of whole cloth.' Id. This portion of Harris’s scheme could not have succeeded otherwise, as Spheeris was not a participant in it. Harris did not merely inflate the scope of services rendered during an otherwise legitimate appointment; Harris manufactured entire appointments that never occurred. Indeed, Spheeris had never rendered any services to the patients listed on the claim forms. Like one who fraudulently uses another’s name and physical credit card or credit card number, Harris fraudulently used Spheeris’s name and her NPI number. For these reasons, we hold that Harris’s actions constituted 'use' under the aggravated identity theft statute."

12/21/20: how to appeal a magistrate judge’s denial of bail pending the conclusion of an extradition proceeding

In United States v. Al-Nouri, --- F.3d ---, No. 20-10317 (9th Cir. 2020), the Court explained that a magistrate judge’s denial of bail pending the conclusion of an extradition proceeding could not be directly appealed to the Ninth Circuit. 

Instead, "[t]o the extent a magistrate judge has been assigned the Article III power to make bail decisions, either implicitly by custom or expressly by local rules, such decisions may be reviewed de novo by the district court upon application by a party . . . . The district court’s decision would then be a final decision for purposes of § 1291, and is appealable to this court. Further, a potential extraditee may appeal a denial of bail by way of a petition for writ of habeas corpus."

So there you have it.  Go to the district court first.  

12/15/20: Denial of sentence reduction affirmed

 In United States v. Hardiman, --- F.3d ---, No. 16-50422 (9th Cir. 2020), the Court affirmed the district court's denial of Mr. Hardiman's motions under 28 U.S.C. § 2255 and 18 U.S.C. § 3582(c)(2).

The motions were based on United States v. Pimentel-Lopez, 859 F.3d 1134 (9th Cir. 2016), which held that a district court is not entitled to make a drug quantity finding in excess of that found by the jury in a special verdict.

Mr. Hardiman argued that the district court erred at sentencing when it made a drug quantity finding in excess of that found by the jury's special verdict.  

The Ninth Circuit held that Pimentel-Lopez does not apply retroactively to cases on collateral review under Teague v. Lane, 489 U.S. 288, 310 (1989) (plurality opinion).  Thus, the 2255 was properly denied. 

Mr. Hardiman also filed a § 3582(c)(2) motion to reduce his sentence.  The Court held that his arguments about Pimentel-Lopez “were not affected by” Amendment 782 and therefore are “outside the scope of the proceeding authorized by § 3582(c)(2).” Dillon, 560 U.S. at 831.

12/8/20: Two criminal decisions today

 First, in United States v. Gainza, --- F.3d ---, No. 19-10430 (9th Cir. 2020), the Court vacated the defendants' sentences for conspiracy to possess unauthorized access devices, access device fraud, and aggravated identity theft.

The case arose from the installation of cameras and skimmers at ATMs.

The Court found that the district court clearly erred in calculating loss based on the total number of people who visited the ATMs at the relevant times: "The government offered insufficient evidence that the defendants obtained or used 852 account numbers. And while the government showed how many people used the ATMs while the skimmers were installed, it did not provide any evidence of the skimmer success rate, either for these transactions or even for hypothetical transactions. Without this evidence, the record cannot support a finding that Gainza and Gabriele-Plage obtained information 'that can be used to initiate a transfer of funds' from each ATM customer. 18 U.S.C. § 1029(e)(1)."

The Court explained: "And while it is true that the sentencing judge “need only make a reasonable estimate of the loss,” U.S.S.G. § 2B1.1 cmt. n.3(C), that estimate must be based on facts, not conjecture. This is not to say that the estimate requires mathematical precision; rather, a “reasonable estimate” can be derived from a reasonable evaluation of the evidence."

Second, in United States v. Sineneng-Smith, --- F.3d ---, No. 15-10614 (9th Cir. 2020), the Court affirmed the defendant's convictions on two counts of encouraging and inducing an alien to remain in the United States for the purposes of financial gain (8 U.S.C. §§ 1324(a)(1)(A)(iv) and 1324(a)(1)(B)(i)).

If the case sounds familiar, it is.  This was the case where the Ninth Circuit held the statute unconstitutional under the First Amendment.  The Supreme Court vacated on other grounds (because the issue was not raised by the parties) and remanded “for reconsideration shorn of the overbreadth inquiry.” 

On remand, the panel rejected the defendant's various claims.  But it "express[ed] no opinion about whether Subsection (A)(iv) is facially overbroad in violation of the First Amendment." So this is still an open issue. 

12/3/20: En banc decision on venue

 Another en banc decision today.  

In United States v. Lozoya, --- F.3d ---, No. 17-50336 (9th Cir. 2020), the en banc Court affirmed a conviction for misdemeanor assault within the special aircraft jurisdiction of the United States.  

The defendant committed the assault on a commercial flight from Minneapolis to Los Angeles, and argued venue in the Central District of California was improper because the assault did not occur in airspace directly above the Central District. 

Rejecting this argument, the en banc majority held that venue for in-flight federal offenses is proper in the district where a plane lands. In reaching this conclusion, the majority found that the applicable venue provision was 18 U.S.C. § 3237(a), which provides: "[a]ny offense involving . . . transportation in interstate or foreign commerce . . . is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may be inquired of and prosecuted in any district from, through, or into which such commerce . . . moves."

The dissent responded: "The majority holds that venue for this crime is proper in any district the airplane traveled from, through, or into, meaning that the trial for an assault on a cross-country flight can be held in any flyover state. See Maj. at 12 n.8 (acknowledging that 18 U.S.C. § 3237(a) “theoretically allows venue not just in the landing district, but also the takeoff district as well as the flyover districts”). Congress did not direct such an absurd result; rather, under the correct venue statute, the trial for an assault on a cross-country flight can be held only where the defendant “is arrested or is first brought,” or where the defendant resides. 18 U.S.C. § 3238"

12/2/20: En banc decision governing drug prosecutions

For almost a year, we have been waiting for United States v. Collazo, --- F.3d --- (9th Cir. 2020) (en banc).   It landed today.

Collazo addressed the government's burden of proof in prosecutions for conspiracy to distribute (and substantive distribution of) controlled substances under 21 U.S.C. §§ 846 and 841.  

The main question was whether the government needed to prove the defendant(s) knew the drug type and quantity involved: "We must [] determine whether Congress intended to require proof of a defendant’s mens rea with respect to the requisite drug type and quantity for the penalties in § 841(b)(1)(A)–(B) to apply."

The en banc majority said no. 

Here are a few key quotes (with my thoughts after):

For purposes of § 846, "in order to convict a defendant of conspiracy, the government must prove beyond a reasonable doubt that (1) the defendant agreed with another person that some member of the conspiracy would commit the relevant underlying offense (here § 841(a)), and that (2) the defendant had the requisite intent necessary for a conviction of the underlying offense."

But "the structure of § 841(a)–(b) compels the conclusion that Congress did not intend to require the government to prove a defendant’s knowledge with respect to the drug type or quantity."

"In sum, we conclude that in order to obtain a particular sentence under § 841(b)(1)(A)(viii) and § 841(b)(1)(B)(i) for a violation of § 841(a), the government must prove beyond a reasonable doubt the specific type and the quantity of substance involved in the offense, but not the defendant’s knowledge of (or intent) with respect to that type and quantity."

"We have established in Section II.A, supra, that to convict the defendants of conspiracy under § 846 in this case, the government must prove beyond a reasonable doubt that each defendant agreed with another person that some member of the conspiracy would commit a § 841(a) offense, and that each defendant had the requisite intent necessary for a § 841(a) conviction. We have also established in Section II.B, supra, that the requisite intent necessary for a § 841(a) conviction (and for the imposition of the penalties specified in § 841(b)(1)(A)–(B)) does not include knowledge of the relevant drug type or quantity. This concludes our explication of the elements of a § 846 conspiracy to commit a violation of § 841(a), and the imposition of penalties under § 841(b)(1)."

Further "we conclude that to obtain a conviction and a particular sentence for conspiracy to distribute controlled substances under § 846, the government must prove only that the defendant’s mental state was the same as if the defendant had been charged with the underlying offense. Applying that principle here, the government need not prove the defendant’s knowledge of the drug type and quantity under § 841(b)."

"As we have explained, a defendant convicted of conspiracy under § 846 is subject to a penalty under § 841(b)(1)(A)–(B) if the government has proven beyond a reasonable doubt that the underlying § 841(a)(1) offense involved the drug type and quantity set forth in § 841(b)(1)(A)–(B). The government does not have to prove that the defendant had any knowledge or intent with respect to those facts."

As I read Collazo, the main takeaways are:

1. For both drug conspiracy and substantive offenses, the government does not need to prove any defendant knew the drug type or quantity involved. 

2. As result of point 1, the court does not need to instruct the jury that any knowledge is required for a drug type / quantity finding.   Instead, so long as the government proves the fact of drug type and quantity involved, that is enough to establish liability for that type / amount.  Accordingly, courts are no longer going to give jury instructions that require the jury to determine "whether the government proved beyond a reasonable doubt that the amount of [the specified drug] was reasonably foreseeable to [each defendant] or fell within the scope of his particular agreement."  The new instruction will simply require the government to prove the offense involved the type and quantity alleged with no mens rea component. 

The dissent is compelling.  This issue is likely headed for the SCOTUS. 

11/25/20: Wide-ranging opinion on a variety of trial and supervised release issues

In United States v. Rusnak, --- F.3d ---, No. 17-10137 (9th Cir. 2020), the Court affirmed a conviction for accessing, possessing, and distributing child pornography, vacated some of the supervised release, and remanded for further proceedings.

A few points worth noting"  

First, the Fourth Circuit has held that a criminal defendant may be entitled to a Franks hearing when the affiant who secured a search warrant makes statements at trial that contradict the warrant affidavit. See United States v. White, 850 F.3d 667, 673 (4th Cir. 2017).  Because the Court here found that the defendant waived his Franks argument, it did not decide whether the Ninth would join the Fourth.  So this is still an open issue of first impression. 

Second, on the issue of questioning outside the scope of direct examination, the Court reminds us: "'[a]n opening statement . . . cannot operate to place an issue in controversy.' And statements made outside the presence of the finder of fact are no different."

Third, the Court held, "[d]enying defendants the opportunity to redirect a witness regarding an improper testimonial statement introduced during cross-examination offends the Confrontation Clause."

Fourth, the Court rejected "the Government’s argument that because Rusnak called [his wife] as a witness, her testimony necessarily could not offend the Confrontation Clause. The Government does not point to any case barring the application of Crawford and its progeny to witnesses called by defendants. Crawford repeatedly discusses '[t]estimonial statements of witnesses,' without drawing the distinction the Government seeks."

There is lots more in the opinion.  It is worth a read. 

11/23/20: Plain error in applying sentencing enhancement based on marijuana conviction

 In United States v. Bautista, --- F. 3d ---, No. 19-10448 (9th Cir. 2020), the Court vacated the defendant's sentence, finding the district court plainly erred in applying a recidivist sentencing enhancement under U.S.S.G. § 4B1.2(b).

This case is a good reminder about the change in the federal definition of marijuana and how it can impact sentencing for new convictions.  

The government prosecuted the defendant for being a felon in possession of ammunition "after authorities discovered a pen in his pocket containing one round of .22 caliber ammunition."  

At sentencing, the district court concluded that the defendant's "2017 state conviction for 'Attempted Unlawful Transportation of Marijuana for Sale,' in violation of Arizona Revised Statutes § 13-3405(A)(4), qualified as a “controlled substance offense” as defined in § 4B1.2(b). This recidivist enhancement resulted in a six-level increase to a Base Offense Level of 20. See U.S.S.G. § 2K2.1(a)(4)(A)."  

The defendant did no object.  The Ninth Circuit found plain error.  

"Having determined that we must compare Bautista’s prior state-law conviction with federal law at the time of federal sentencing, we now apply the categorical approach to determine whether the prior conviction qualified as a 'controlled substance offense' under the Guidelines."

"[T]he district judge was required to compare the elements of the state crime as they existed when Bautista was convicted of that offense to those of the crime as defined in federal law at the time of federal sentencing—that is, after the Agriculture Improvement Act removed hemp from the federal drug schedule. Because the federal CSA excludes hemp but Section 13-3405 of the Arizona Revised Statutes did not, the latter crime’s 'greater breadth is evident from its text.' Bautista’s conviction is facially overbroad and not a categorical match for a 'controlled substance offense,' and the district court erred in applying the recidivist sentencing enhancement for a controlled substance."

11/20/20: Fourth Amendment prohibits the government from opening a car door

 In United States v. Ngumezi, --- F.3d ---, No. 19-10243 (9th Cir. 2020), the Court reversed the district court’s denial of a motion to suppress a firearm found in a search of the defendant’s car and vacated his conviction for being a felon in possession of a firearm.

This is an excellent Fourth Amendment decision -- definitely worth reading. 

In short, the Court held that officers who have reasonable suspicion sufficient to justify a traffic stop, but who lack probable cause or any other particularized justification, such as a reasonable belief that the driver poses a danger, may not open the door to a vehicle and lean inside. 

The Court focused on the fact that the officer "entered the interior space of the vehicle when he leaned in across the plane of the door. As several recent Supreme Court decisions have confirmed, that physical intrusion is constitutionally significant."

"Although the intrusion here may have been modest, the Supreme Court has never suggested that the magnitude of a physical intrusion is relevant to the Fourth Amendment analysis. Jones, for example, involved the attachment of a GPS tracker that was “a small, light object that [did] not interfere in any way with the car’s operation,” yet the Court still held that the attachment effected a search.  Nor do we see how courts could administer a test that would require them to distinguish between [the officer] leaning into the passenger-side area of Ngumezi’s car and, say, an officer crawling into the back of a car to look under the seats. Instead, we apply a bright-line rule that opening a door and entering the interior space of a vehicle constitutes a Fourth Amendment search."

 "In the government’s view, opening a door and leaning into a car is less intrusive than ordering a driver to get out of a car, so if the latter is permissible, then the former must be permissible as well. Ordering a driver out of a car is indeed an 'intrusion into the driver’s personal liberty'—albeit one that the Court in Mimms described as a 'de minimis' intrusion that 'hardly rises to the level of a ‘petty indignity.’  But even if opening a door and leaning into the car is a lesser intrusion on the driver’s liberty, it is a greater intrusion on the driver’s privacy interest in the car’s interior. Indeed, the Court emphasized in Mimms that a driver ordered out of a car 'is being asked to expose to view very little more . . . than is already exposed,' something that is not true when an officer enters the vehicle."

As to remedy, the Court explained, "[t]he 'fruit of the poisonous tree' doctrine does not require a particularly tight causal chain between the illegal search and the discovery of the evidence sought to be suppressed."

And "[n]othing about this case calls for a remedy other than '[t]he typical remedy for a Fourth Amendment violation,' which 'is the exclusion of evidence discovered as a result of that violation from criminal proceedings against the defendant.'"
 

11/12/20: CJA reimbursement order survives the defendant's death

 In United States v. Robertson, --- F.3d ---, No. 19-30237 (9th Cir. 2020), the Court affirmed the district court’s order regarding continuing obligations under a Criminal Justice Act reimbursement order in a case in which the defendant died while his appeal was pending.  

Although the conviction and sentence were vacated due to the death, the Court held that the reimbursement order remained valid because "the CJA reimbursement order 'was not dependent in any way on [Robertson’s] conviction.'"

11/6/20: Another Rehaif affirmance

 In United States v. King, --- F.3d ---, No. 18-50122 (9th Cir. 2020), the Court affirmed the defendant's  conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g).

The case was on remand from the Supreme Court based on Rehaif.  

This decision follows on the Johnson decision I wrote about a few weeks ago.  Basically, on plain error review, the Court affirms the conviction despite the fact that the government did not introduce any evidence that the defendant knew of his status as a felon. The Court looks outside the trial record to the presentence report, which showed that the defendant pleaded guilty to two felonies and served sentences of greater than one year for each. 

 

 

11/5/20: En banc decision worth noting

 In United States v. Bacon, --- F.3d ---, No. 18-50120 (9th Cir. 2020) (en banc), the Court "consider[ed] what the proper remedy is on appeal when we conclude that a district court has erred under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), by admitting or excluding expert testimony on one ground, but when we cannot tell from the record whether the admission or exclusion was nevertheless correct on other grounds."

Under prior Circuit law, the requisite remedy was to vacate the conviction and remand for a new trial.  

The Court overruled that precedent and held: "a bright-line rule requiring a specific remedy is inappropriate. Instead, each panel should fashion a remedy 'as may be just under the circumstances.' 28 U.S.C. § 2106. The remedy may include remanding for a new trial or remanding for the district court to first determine admissibility, then requiring a new trial only if that admissibility determination differs from that in the first trial."

The en banc Court remanded for a further remedy determination.  

But now the interesting part.  As noted, in reaching its conclusion, the Court relied on 28 U.S.C. 2106 (which happens to be one of my favorite statutes).  Section 2106 says: "The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances."

To me, this opinion is an invitation for us to use section 2106 as the basis for requesting relief in all types of uncommon circumstances.  If anyone needs briefing, let me know. I've been beating this drum for years. 

10/28/20: Revised opinion in the Azano campaign finance case

Today, the Ninth Circuit withdrew its former opinion in the Azano campaign finance case and issued a revised opinion, available here.  My summary of the original opinion is below.  

After the original opinion, the Supreme Court reversed and sent the case back to the Ninth in light of Rehaif because, in addition to the campaign charges, Azano had been convicted of unlawfully possessing a firearm as an alien in violation of 18 U.S.C. § 922(g)(5)(B).

As far as I can tell, the only material difference between the new opinion and old opinion is the Rehaif issue.  In short, on plain error review, the Court affirmed the gun conviction, holding the Government must prove only that Azano knew, at the time he possessed the firearm, that he belonged to one of the prohibited status groups enumerated in § 922(g)—e.g., nonimmigrant visa holders; it need not also prove that he knew his status prohibited him from owning a firearm.

----

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.  Congrats to Chuck Sevilla and his team on getting the resentencing. 

-----

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. 

10/22/20: Case on the terrorism enhancement under U.S.S.G. § 3A1.4

In United States v. Alhaggagi, --- F.3d ---, No. 19-10092 (9th Cir. 2020), a divided panel vacated the defendant's sentence.  

The defendant pleaded guilty to, among other crimes, attempting to provide material support to a terrorist organization in violation of 18 U.S.C. § 2339B(a)(1).  The conviction was based on his opening  social media accounts for people he knew sympathized with ISIS.  

In imposing sentence, the district court concluded the offense was “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against the government conduct,” and thus triggered application of a terrorism enhancement pursuant to U.S.S.G. § 3A1.4.

The majority determined this was error and reversed:  

"The terrorism enhancement, U.S.S.G. § 3A1.4, imposes a significantly harsher punishment on those who commit certain types of crimes of terrorism. The enhancement increases a defendant’s offense level to a minimum of 32 and designates a defendant’s criminal history category as Category VI, regardless of whether the defendant has previously committed a crime. U.S.S.G. § 3A1.4. To trigger this enhancement, the government must prove elements distinct from those of the crime of conviction, specifically that the offense committed 'involved, or was intended to promote, a federal crime of terrorism.'

"The term 'federal crime of terrorism' is defined as 'an offense that is . . . calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct,' 18 U.S.C. § 2332b(g)(5)(A), and that 'is a violation of' certain enumerated statutes, 18 U.S.C. § 2332b(g)(5)(B). Both parts of § 2332b(g)(5) must be satisfied for the enhancement to apply.

"The material support statute, by contrast, requires proof that a defendant attempted to, conspired to, or did provide 'material support or resources to a foreign terrorist organization,' knowing 'that the organization is a designated terrorist organization' or 'that the organization has engaged or engages in terrorism.' 18 U.S.C. § 2339B(a)(1). It is possible for a defendant to provide material support to a terrorist group in violation of 18 U.S.C. § 2339B(a)(1) without intending that the support or resources would influence, affect, or retaliate against government conduct to satisfy the first prong of the definition of federal crime of terrorism."

"The enhancement, therefore, does not automatically apply to all material support offenses. Congress created this distinction in order to punish certain dangerous terrorists more severely than persons who committed non-violent crimes. Thus, to warrant a substantial increase in punishment pursuant to the terrorism enhancement, a defendant must have the requisite intent necessary to satisfy the definition of federal crime of terrorism, beyond the intent required to establish a violation of the material support statute."

In particular, "§ 2332b(g)(5)(A) imposes a specific intent requirement."

"The parties do not dispute that Alhaggagi’s conviction satisfies the second prong of the definition of federal crime of terrorism. The crime of conviction here—attempt to provide material support in violation of 18 U.S.C. § 2339B(a)(1)—is one of the enumerated statutes in 18 U.S.C. § 2332b(g)(5)(B)."

"The remaining question is whether Alhaggagi’s conduct satisfies the first prong: whether his attempt to provide material support to a terrorist organization by opening social media accounts was 'calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.'"

On this prong, the Court held the government did not meet its burden: "Alhaggagi contends the district court erred in applying the terrorism enhancement because it centered its analysis on ISIS, not on Alhaggagi’s conduct or mental state. The enhancement, Alhaggagi argues, specifically requires the district court to consider the latter, whereas the offense itself implicates the former. Alhaggagi concludes that because the district court failed to determine whether he knew how the accounts he opened were to be used, it could not find that he specifically intended that the accounts be used to coerce or intimidate a government. We agree." 

10/13/20: “gun bulges” under the fact-based Terry inquiry

In United States v. Bontemps, --- F.3d ---, No. 19-10196 (9th Cir. 2020), a divided panel affirmed the district court's denial of the defendant's suppression motion.  

The case arose out of a Terry stop based on officers observation of a large bulge in the defendant's sweatshirt consistent with a gun. 

According to the majority: "Precedent suggests—and common sense confirms— what we now hold here: a bulge that appears to be a concealed firearm can form the basis for a Terry stop in a jurisdiction where carrying a concealed weapon is presumptively unlawful. This holding accords not only with our past cases discussed above but also with the basic mode of analysis under Terry, in which courts look at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing."

The majority distinguished drug bulges from gun bulges: "Cases involving 'drug bulges,' however, present somewhat different considerations than 'gun bulges' under the fact-based Terry inquiry. While guns are made of rigid materials (such as metal or hard plastics) and possess a relatively distinctive shape, drugs or packages of drugs come in different shapes and sizes, some quite small, soft, and nondescript."

"Our holding is []that a bulge suggestive of a firearm can be sufficient to create reasonable suspicion, and that in this case there was ample evidence from which to conclude that Bontemps’s 'obvious' bulge was likely a concealed firearm."

The dissent, however, made the point that "seeing a non-descript bulge without more should not allow police officers to stop and frisk citizens. And the majority’s holding gives license to stop and frisk any citizen based upon nothing more than officer testimony that the officer had seen a bulge."

10/6/20: Case on “official detention” . . . “pending deportation.”

 In United States v. Pacheco, --- F.3d ---, No. 19-10014 (9th Cir. 2020), the Court affirmed the defendant's convictions for sexually abusing minors at a facility that housed unaccompanied noncitizen children.  

The issue on appeal was whether the government proved the victims were in “official detention”-- a term that extends to detentions “pending . . . deportation” -- for purposes of 18 U.S.C. § 2246(5)(A).

The Court held the government met its burden.  

At the time of the conduct, the minors were in a shelter that housed unaccompanied noncitizen children pursuant to a federal contract. They were also in deportation proceedings, although they had not been ordered removed and ultimately were not deported. 

The Court concluded: "deportation is 'pending' for the purposes of 18 U.S.C. § 2246(5)(A) when the victims of the defendant’s conduct are in unresolved deportation or removal proceedings. We interpret “pending” by giving the term its ordinary meaning.  Thus, where, as here, the government had issued Notices to Appear in Immigration Court, Pacheco’s victims were pending deportation until the completion of that process, whether it resulted in deportation or not. In other words, the case has not 'achieved final resolution,' and the victims are 'pending . . . deportation' insofar as the proceedings could result in their removal from the United States."

 

 

9/25/20: This appeal concerns the Fourth Amendment’s limits on the government’s use of deceit when executing a valid search warrant

In United States v. Ramirez, --- F.3d ---, No. 18-10429 (9th Cir. 2020), a divided panel reversed the denial of the defendant's suppression motion.

This is an important case worth reading.  Here's the intro:

"This appeal concerns the Fourth Amendment’s limits on the government’s use of deceit when executing a valid search warrant."

"[Agents] obtained a warrant to search the residence of Stefan Ramirez and any vehicle registered to Ramirez located at or near the residence. Under the warrant and the law established by Michigan v. Summers, 452 U.S. 692 (1981), the agents had no authority to seize Ramirez or search his car when they arrived to execute the warrant, because neither was at the residence. The agents manufactured the authority to seize them by falsely claiming to be police officers responding to a burglary to lure Ramirez home. By luring Ramirez home, the agents’ successful deceit enabled them to obtain incriminating statements from Ramirez and evidence from his car and person. The district court denied Ramirez’s motion to suppress the statements and evidence, and Ramirez thereafter pleaded guilty to receipt and distribution of material involving the sexual exploitation of minors. We hold that, under the particular facts of this case, the agents’ use of deceit to seize and search Ramirez violated the Fourth Amendment. Accordingly, we reverse the suppression order and remand for further proceedings."

The majority continued: "Although the propriety of a ruse search or seizure depends on the particular facts of each case, our precedent draws a clear line between two categories of deception. Law enforcement’s use of deception is generally lawful when the chosen ruse hides the officer’s identity as law enforcement and facilitates a search or seizure that is within its lawful authority, such as pursuant to a valid search warrant. Deception is unlawful when the government makes its identity as law enforcement known to the target of the ruse and exploits the target’s trust and cooperation to conduct searches or seizures beyond that which is authorized by the warrant or other legal authority, such as probable cause."

"[W]hen the government agent is known to the suspect as such, and invokes the trust or cooperation of an individual to search or seize items outside what is lawfully authorized, such a ruse is unreasonable under Fourth Amendment."

"Law enforcement does not have carte blanche to use deception to effect a search and seizure. A ruse that reveals the officers’ identity as law enforcement but misrepresents the purpose of their investigation so that the officers can evade limitations on their authority raises serious Fourth Amendment concerns."

"[T]he ruse used here was not a permissible means to effect the search and seizure of Ramirez. The FBI agents posed as police officers and played on Ramirez’s trust and reliance on their story that his home had been burglarized to bring Ramirez and his car within the ambit of the warrant, when they were not otherwise within its ambit. The FBI had no acceptable government interest in using this ruse. Thus, balancing the strong Fourth Amendment interest against the non-existent government interest, the FBI’s conduct was plainly unreasonable under the Fourth Amendment."

"Balancing the Government’s justification for its actions against the intrusion into the defendant’s Fourth Amendment interests, the Government’s conduct was clearly unreasonable. The Fourth Amendment interest is near its zenith in this case because the agents betrayed Ramirez’s trust in law enforcement in order to conduct searches and seizures beyond what they were lawfully authorized to do."

The Court also considered, "whether Ramirez’s statements, made after Agent Ratzlaff revealed the true purpose of the investigation and asked to speak with him, should be suppressed because they were tainted by the illegality of the initial seizure."  

The majority held they should. 

"[T]he Government failed to carry its burden to show that Ramirez’s incriminating statements were not obtained through 'exploitation of illegality'—the use of the ruse to circumvent the Summers rule and unlawfully seize Ramirez— rather than 'by means sufficiently distinguishable to be purged of the primary taint.'"

Judge Collins dissented. 

9/17/20: Automatic dismissal

 In United States v. Qazi, --- F.3d ---, No. 18-10483 (9th Cir. 2020), the Court vacated the defendant's conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g), and remanded with instructions to dismiss the indictment.

In the district court, before trial, the pro se defendant, filed a "Motion to Dismiss Indictment for Failure to State Offense," stating "[t]he Defendant . . . moves . . . to dismiss the Indictment with prejudice, for failure to allege all the elements of a Federal Crime."

Following its well-established obligation to construe pro se filings liberally, the Court determined this was sufficient to trigger the rule from United States v. Du Bo, 186 F.3d 1177 (9th Cir. 1999), which holds an indictment missing an essential element challenged before trial must be dismissed regardless of whether the omission prejudiced the defendant.

Here, the indictment failed to alleged the defendant’s knowledge of his felon status.  Following Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019), this is a required element under Section 922(g). 

The Court explained: "This case is simple. When Qazi insisted his indictment 'fail[ed] to allege all the elements of a Federal Crime,' he was right. When the district court concluded 'the indictment tracks the language of 18 U.S.C. 922(g), [and] sets forth the elements of the offense,” it was wrong. Liberally construed, Qazi’s objection to the indictment was sufficient to trigger Du Bo’s dismissal rule."

9/10/20: Good Fourth Amendment attenuation case

 In United States v. Garcia, --- F.3d ---, No. 19-10073 (9th Cir. 2020), the Court reversed the denial of the defendant's suppression motion.  

Officers violated the Fourth Amendment when they entered the defendant's home without a warrant, ostensibly to determine whether someone inside posed a threat to their safety or required emergency assistance. 

Though the officers knew nothing about Garcia before entering his home, they discovered him inside, detained him at gunpoint, took him outside in handcuffs, and ran a records check that revealed he was subject to a supervised release condition authorizing suspicionless searches of his residence. 

After discovering this condition, the same officers who had conducted the initial unlawful entry reentered the home to conduct a full search, during which they found methamphetamine and other incriminating evidence.

The issue on appeal was "whether, under the attenuation doctrine, the discovery of the suspicionless search condition was an intervening circumstance that broke the causal chain between the initial unlawful entry and the discovery of the evidence supporting Garcia’s conviction in this case and the revocation of supervised release in the underlying case."

The Court held it was not. 

• The attenuation doctrine is an exception to the usual rule of exclusion or suppression of the evidence. It applies when “‘the connection between the illegality and the challenged evidence’ has become so attenuated ‘as to dissipate the taint caused by the illegality.’” 

• In determining whether an intervening event has sufficiently purged the taint of a preceding Fourth Amendment violation, we consider three factors: (1) “the ‘temporal proximity’ between the unconstitutional conduct and the discovery of evidence,” (2) “the presence of intervening circumstances,” and (3) “the purpose and flagrancy of the official misconduct.” 

The government conceded the first factor favored suppression.  

As to the second factor, "[w]hile the suspicionless search condition here granted the officers the legal authority to search Garcia’s home without cause, it did not—unlike the warrant in Strieff—require them to exercise that authority. The officers’ decision to avail themselves of the suspicionless search condition was volitional, not 'ministerial.' This distinction is important because we have held that the attenuation doctrine does not apply when an officer’s decision to exercise his discretionary authority is 'significantly direct[ed]' by information learned during an unlawful search."

And "when an officer’s exercise of discretionary authority is 'significantly directed' by information learned during an unlawful search, the mere existence of that authority is not an intervening cause that purges the taint of the earlier constitutional violation."

"[T]he Government did not present any evidence regarding the officers’ reasons for entering Garcia’s home the second time, much less evidence sufficient to show that this decision had nothing to do with what they saw inside the home minutes earlier, during their unconstitutional search."

"The officers did not enter Garcia’s home with blinders on. And the record shows that in the few minutes between the two searches, the officers’ motives for entering the home abruptly changed from non-investigatory to investigatory. Yet the Government offers nothing more than its say-so to explain this sudden shift. That is not enough to avoid suppression. Cf. United States v. Bocharnikov, 966 F.3d 1000, 1007 (9th Cir. 2020) (Chhabria, J., concurring) (“To rule in the government’s favor on this appeal would have required us to bend over backwards, doing the government’s work for it. Federal prosecutors should not need that kind of help from the courts, nor should they expect to receive it.”). In the absence of evidence showing that the officers’ decision to conduct the second search was untainted by what they saw during the initial unlawful entry, we conclude that the Government has not met its burden of showing that the discovery of the suspicionless search condition was a sufficient intervening circumstance."

As to the third factor, "we find it particularly significant that the officers entered Garcia’s home without cause, detained him at gunpoint, and removed him from the premises in handcuffs. The home is 'first among equals' for purpose of the Fourth Amendment, and it is no trifling matter for police to storm a residence with guns drawn. Incursions of this nature can have tragic results."

"Examining the totality of the circumstances, we conclude that even accepting the district court’s finding that the officers acted in good faith, this fact alone is not enough to justify admission of the evidence."

9/9/20: Guidelines decision on whether the definition of 'victim' under § 2B1.1 includes a state government agency

 In United States v. Herrera, --- F.3d ---, No. 19-50181 (9th Cir. 2020), the Court affirmed a sentence for mail fraud arising from an unemployment-fraud scheme.

The district court calculated the Guidelines as follows: "'The base offense level is 7. The specific offense characteristics increase that by 22 levels. The role in the offense by an additional 3, which gives a subtotal of 32. Reduced by 3 for acceptance of responsibility to 29.' The 22-level specific offense enhancement calculation breaks down as follows: an 18-level enhancement for losses greater than $3.5 million, a 2-level number-of-victims enhancement, and a 2-level sophisticated-means enhancement."

On appeal, the defendant argued the district court miscalculated the amount-of-loss enhancement and improperly imposed the leadership-role and number-of-victims enhancements. 

The Court rejected these arguments.  First, it held, "the district court merely misstated the amount-of-loss enhancement. After considering the parties’ evidence and arguments, the district court found that the losses exceeded $3.5 million. The evidence supports this finding. Losses exceeding $3.5 million merit an 18-level enhancement. U.S.S.G. § 2B1.1(b)(1)(J)."

Second, it explained, "[o]n this record, we conclude the district court did not abuse its discretion by imposing the leadership-role enhancement. Herrera was a leader within the unemployment-fraud scheme, and he was properly treated as such at sentencing."

Finally, the Court considered "[w]hether the definition of 'victim' under § 2B1.1 includes a state government agency [here, the EDD]."  It framed the issue as "whether the definition of 'victim' for § 2B1.1, which does not include government entities in its list of various entities that may be counted as victims, must be interpreted to exclude government entities regardless of whether they suffer loss included in the loss calculation."

The Court held it did not.  It relied on the 'presumption of nonexclusive include.'  This presumption holds that 'the word include does not ordinarily introduce an exhaustive list.'" The Court concluded, "state government agencies who suffer losses that are included in the actual loss calculation under § 2B1.1(b)(1) are properly counted as victims for purposes of the number-of-victims enhancement in § 2B1.1(b)(2)(A)(i)."

9/4/20: Sentencing decision on the FSA

 In United States v. Asuncion, --- F.3d ---, No. 18-30130 (9th Cir. 2020), the Court affirmed the defendant's mandatory minimum life sentence under 21 U.S.C. § 841(b)(1)(A) (2018) based on his previous convictions for two or more “felony drug offenses,” as defined in 21 U.S.C. § 802(44).

This case arose before the First Step Act.  In other words, the defendant was sentenced under the prior version of 841.  The sentencing also took place before United States v. Valencia-Mendoza, 912 F.3d 1215 (9th Cir. 2019), which held that even if a state statute governing a prior drug offense prescribes a maximum sentence of more than one year, the state’s sentencing guideline system can affect whether the defendant was, in fact, convicted of a crime “punishable by imprisonment for a term exceeding one year.”

Based on these changes, the defendant made two primary arguments on appeal. 

"First, he contends that under Valencia-Mendoza, none of his state crimes were 'punishable by imprisonment for more than one year' because the high ends of his guideline ranges never exceeded twelve months. If true, this would mean that Asuncion committed only one prior felony drug offense and should not have been sentenced as if he had committed two or more. And it would result in a sentence of 20 years rather than life in prison (assuming the First Step Act were held not to apply). See 21 U.S.C. § 841(b)(1) (2018)."

"Second, Asuncion argues that section 401 of the First Step Act should apply because his conviction and sentence were on appeal (and therefore still pending) when the law was enacted. If that were true, his three prior state convictions would not count (regardless of the outcome of his first argument), because the offenses were not “serious drug felonies” within the meaning of section 401. In this scenario, Asuncion, who received a mandatory life sentence, would need to be resentenced with fifteen years as the new mandatory minimum sentence—what the First Step Act prescribes for a defendant with one qualifying prior conviction. See § 401(a)(2)(A)(i), 132 Stat. at 5220."

The Court rejected both arguments.  

As to the first claim, the Court held that because the defendant was sentenced for his prior state drug offenses under Washington’s previous guideline system -- which gave the judge broad, open-ended discretion to impose a sentence above the guideline range (and thus above a year) -- they all qualified as prior felony drug offenses. 

As to the second claim, the Court held that the FSA did not apply to cases on appeal when the sentence was imposed before enactment: "a sentence is 'imposed' when the district court pronounces the sentence, and not, as Asuncion argues, when the conviction becomes final after appeal."

Important note:  This does not (at least should not) apply to cases where the sentence was first imposed before the FSA, then the sentence was vacated on appeal, and the resentencing is taking place after the FSA.  Because the original sentence was vacated, there is no longer any sentence imposed before the FSA. 
 

9/2/20: Fourth Amendment FISA decision almost four years in the making

 In United States v. Moalin, --- F.3d ---, No. 13-50572 (9th Cir. 2020), the Court affirmed the convictions of four members of the Somali diaspora for sending, or conspiring to send, $10,900 to Somalia to support a foreign terrorist organization.

This case was argued in November 2016!  It addresses the U.S. government’s authority to collect bulk data about its citizens’ activities under the auspices of a foreign intelligence investigation, as well as the rights of criminal defendants when the prosecution uses information derived from foreign intelligence surveillance.  

"We conclude that the government may have violated the Fourth Amendment and did violate the Foreign Intelligence Surveillance Act ('FISA') when it collected the telephony metadata of millions of Americans, including at least one of the defendants, but suppression is not warranted on the facts of this case. Additionally, we confirm that the Fourth Amendment requires notice to a criminal defendant when the prosecution intends to enter into evidence or otherwise use or disclose information obtained or derived from surveillance of that defendant conducted pursuant to the government’s foreign intelligence authorities. We do not decide whether the government failed to provide any required notice in this case because the lack of such notice did not prejudice the defendants. After considering these issues and several others raised by the defendants, we affirm the convictions in all respects."

On appeal, the defendants argued, "that the metadata collection violated his Fourth Amendment 'right . . . to be secure . . . against unreasonable searches and seizures.'"

The Court agreed the collection of vast amounts of metadata raised serious concerns: "The amount of metadata created and collected has increased exponentially, along with the government’s ability to analyze it. 'Records that once would have revealed a few scattered tiles of information about a person now reveal an entire mosaic—a vibrant and constantly updating picture of the person’s life.'  According to the NSA’s former general counsel Stewart Baker, '[m]etadata absolutely tells you everything about somebody’s life. . . . If you have enough metadata you don’t really need content . . . .”
 

The Court thus found "defendants’ Fourth Amendment argument has considerable force."  But it did "not come to rest as to whether the discontinued metadata program violated the Fourth Amendment because even if it did, suppression would not be warranted on the facts of this case."

"Having carefully reviewed the classified FISA applications and all related classified information, we are convinced that under established Fourth Amendment standards, the metadata collection, even if unconstitutional, did not taint the evidence introduced by the government at trial."

The Court then turned to the defendant's argument that the metadata collection program violated FISA Subchapter IV, under which the FISA Court authorized it.

First, the Court rejected the government's lack of standing argument with helpful language: "As our cases have explained, 'Fourth amendment standing is quite different . . . from ‘case or controversy’ determinations of article III standing.' Whereas Article III standing concerns our jurisdiction, Fourth Amendment standing 'is a matter of substantive fourth amendment law; to say that a party lacks fourth amendment standing is to say that his reasonable expectation of privacy has not been infringed.''

"We reject the government’s invitation to dispense with defendants’ statutory argument on the basis of Fourth Amendment standing. First, as Carpenter clarified after this case was briefed, there is no categorical rule preventing criminal defendants from challenging third-party subpoenas. Carpenter, 138 S. Ct. at 2221. Second, as discussed above, Moalin likely had a reasonable expectation of privacy in his telephony metadata—at the very least, it is a close question. Finally, and most importantly, defendants’ statutory and Fourth Amendment arguments rest on independent legal grounds, and we see no reason why Moalin’s 'standing' to pursue the statutory challenge should turn on the merits of the Fourth Amendment issue. We therefore proceed to the merits of the statutory challenge."

As to the merits, the Court further held "the telephony metadata collection program exceeded the scope of Congress’s authorization in section 1861 and therefore violated that section of FISA."  

But it rejected the argument that suppression was required for the statutory violation. "Even if we were to apply a 'fruit of the poisonous tree' analysis, we would conclude, based on our careful review of the classified FISA applications and related information, that the FISA wiretap evidence was not the fruit of the unlawful metadata collection. Again, if the statements of public officials created a contrary impression, that impression is inconsistent with the facts presented in the classified record."

Next, the Court considered the defendants' argument "that the Fourth Amendment required the government to provide notice to defendants of its collection and use of Moalin’s telephony metadata. They also contend that they were entitled to notice of any additional surveillance, other than FISA Subchapter I surveillance, that the government conducted of them during the course of its investigation."

"The government did not notify defendants that it had collected Moalin’s phone records as part of the metadata program. Defendants learned that after trial—from the public statements that government officials made in the wake of the Snowden disclosures. See supra pp. 13–14. Nor did the government provide notice of any additional surveillance, apart from FISA Subchapter I surveillance, it had conducted of defendants."

"The Fourth Amendment requires that a person subject to a government search receive notice of the search, absent 'exigent circumstances.'"

"[B]ecause the Fourth Amendment applies to foreign intelligence investigations, U.S. criminal defendants against whom the government uses evidence obtained or derived from foreign intelligence surveillance may have Fourth Amendment rights to protect. The principal remedy for a Fourth Amendment violation is the exclusionary rule: a criminal defendant may seek suppression of evidence obtained from an unlawful search or seizure, as well as of the 'fruits' of that evidence—additional evidence to which it led. But criminal defendants who have no knowledge that a potentially unconstitutional search has played a part in the government’s case against them have no opportunity to vindicate any Fourth Amendment-protected rights through suppression."

"Notice is therefore a critical component of the Fourth Amendment in the context of a criminal prosecution. And although the Fourth Amendment may apply differently to foreign intelligence surveillance than to searches undertaken in ordinary criminal investigations, notice of a search plays the same role in the criminal proceeding: it allows the defendant to assess whether the surveillance complied with the Fourth Amendment’s requirements, whatever the parameters of those requirements are." 

"At a minimum, then, the Fourth Amendment requires notice to a criminal defendant when the prosecution intends to enter into evidence or otherwise use or disclose information obtained or derived from surveillance of that defendant conducted pursuant to the government’s foreign intelligence authorities."

"We emphasize that notice is distinct from disclosure. Given the need for secrecy in the foreign intelligence context, the government is required only to inform the defendant that surveillance occurred and that the government intends to use information obtained or derived from it. Knowledge of surveillance will enable the defendant to file a motion with the district court challenging its legality." 

However, "assuming without deciding that the government should have provided notice of the metadata collection to defendants, the government’s failure to do so did not prejudice defendants. Defendants learned of the metadata collection, albeit in an unusual way, in time to challenge the legality of the program in their motion for a new trial and on appeal."

The Court also rejected the defendants' Brady claims and arguments as to evidentiary errors during trial. 

8/26/20: Case on extraterritorial jurisdiction

 In United States v. Hussain, --- F.3d ---, No. 19-10168 (9th Cir. 2020), the Court affirmed the defendant's convictions and sentence for wire fraud, conspiracy to commit wire fraud, and securities fraud.

The defendant served as Chief Financial Officer of Autonomy Corporation, a U.K. technology company that Hewlett-Packard acquired in 2011.  Prior to the acquisition, the defendant and others fraudulently inflated revenue through a series of elaborate accounting schemes. 

"As relevant here, during the course of HP’s due diligence leading up to the Autonomy acquisition, Hussain and his coconspirators used emails, press releases, and video and telephone conference calls to speak with HP executives in the United States and fraudulently misrepresent Autonomy’s finances. On the cusp of finalizing the HP deal, Hussain signed a letter warranting that an HP press release announcing the acquisition contained truthful financial information about Autonomy, when it did not. When the deal closed, Hussain earned approximately $16 million."

The defendant moved to dismiss the indictment, arguing that his wire fraud charges involved an impermissible extraterritorial application of U.S. law and that the securities fraud charge was too attenuated to U.S. securities. The district court rejected these legal challenges and the Ninth Circuit affirmed. 

First, it held that the "wire fraud and conspiracy convictions are not impermissibly extraterritorial because they are based on conduct that occurred in the United States."  The Court explained, "the Supreme Court has held that '[a]bsent clearly expressed congressional intent to the contrary, federal laws will be construed to have only domestic application.' But if the object of a federal law is conduct that occurs in this country, the concerns associated with a potentially extraterritorial application of our laws do not come into play."

Turning to the wire fraud statute, the Court noted, "[s]ection 1343 is not a general fraud statute, but instead criminalizes frauds that specifically involve the misuse of the wires."  The Court held, "the 'focus' of the wire fraud statute, 18 U.S.C. § 1343, is the use of the wires in furtherance of a scheme to defraud."  Thus, "[s]o long as Hussain’s use of the wires in furtherance of his fraud had a sufficient domestic nexus, we must uphold his convictions as 'permissible domestic application[s]' of the statute."  On the facts, the Court found this standard satisfied. 

The Court also rejected the defendant's challenges to his conviction for securities fraud under 18 U.S.C. § 1348. 

"As relevant here, the securities fraud criminal statute prohibits executing a 'scheme or artifice' 'to defraud any person in connection with any' U.S.-registered security, 18 U.S.C. § 1348(1), or 'obtain, by means of false or fraudulent pretenses, representations, or promises, any money or property in connection with the purchase or sale of any' U.S.-registered security, id. § 1348(2)."

The defendant argued the evidence was legally insufficient to prove he acted with the "requisite fraudulent intent." "But Hussain below barely raised this issue in passing in his Rule 29 motion, and the district court unsurprisingly did not address it. Hussain thus waived the argument, and we review a waived ground for acquittal only 'to prevent a manifest miscarriage of justice.'"

[My note, I have never seen the Court apply this standard to an issue that was actually raised below.]

The Court found no miscarriage of justice. 

The defendant also argued the government failed to prove his fraudulent scheme was “in connection with” the purchase or sale of HP securities. The Court disagreed: "we have explained that 'in connection with' is construed broadly, ‘not technically and restrictively.'"

"In this case, and based on these precedents, the evidence presented at trial was sufficient for the jury to find that the 'in connection with' element was met."

"We cannot accept Hussain’s arguments that his scheme falls outside § 1348 because it was only 'in connection with' Autonomy securities, and that his misrepresentations were directed at HP’s management and not its investors. These arguments reflect an unduly narrow interpretation of § 1348. And they likewise reflect a cramped view of the import to the investing public of a press release about a major acquisition, as well as Hussain’s personal role in verifying the accuracy of the Autonomy financial information included in the press release. The jury was entitled to reject Hussain’s efforts to minimize the press release and his level of involvement in it." 

 

8/25/20: Interesting double jeopardy case

In United States v. Lusby, --- F.3d ---, No. 18-10368 (9th Cir. 2020), the Court reversed the district court’s order dismissing an indictment charging the defendant with failing to register as a sex offender in violation of the Sex Offender Registration and Notification Act.

On appeal, the Court first addressed whether the dismissal created a double jeopardy bar, such that there was no appellate jurisdiction.   

The Court explained, "[a]lthough Lusby is correct that our jurisdiction does not extend to appeals from dismissals of indictments where that Clause 'prohibits further prosecution,' 18 U.S.C. § 3731, it does not do so here."

"[J]eopardy 'does not attach' unless a defendant is 'put to trial before the trier of facts,' which subjects the defendant to the 'risk of a determination of guilt[.]

"Lusby argues that jeopardy attached here because, in dismissing his indictment, the district court effectively conducted a non-jury trial."

"[W]e reiterate that—in the context of a nonjury trial—jeopardy only attaches when the court begins to 'hear[] evidence for the purpose of deciding the issue of guilt or innocence' that could 'subject[]” the defendant “to the risk that he would be found guilty.'"

"Without risk of a determination of guilt, jeopardy does not attach, and neither an appeal nor further prosecution constitutes double jeopardy."

"[W]e hold that jeopardy did not attach in this case because the district court never heard 'evidence for the purpose of deciding the issue of guilt or innocence' that could 'subject[]' Lusby 'to the risk that he would be found guilty.' 

As to the merits of the appeal, the Court addressed "whether a conviction for violating 18 U.S.C. § 2250(a) requires that the defendant’s interstate travel not be legally compelled."

It held, "the statute does not require that the interstate travel be done in the absence of legal compulsion. Congress’s inclusion of an affirmative defense for uncontrollable circumstances—which Lusby does not argue applies here—further supports the interpretation that Congress did not intend to provide an additional unwritten affirmative defense regarding legally-compelled interstate travel."

Thus, the Court remanded the case for trial. 

8/21/20: Interesting supervised release decision

In United States v. Cate, --- F.3d ---, No. 19-30161 (9th Cir. 2020), the Court affirmed the district court’s judgment and sentence on revocation of supervised release.  It held the validity of an underlying conviction cannot be challenged in a supervised release revocation proceeding; the underlying conviction can only be collaterally attacked in a proceeding under 28 U.S.C. § 2255.

The facts:

• "Ryan Cate, convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), was charged with violating the conditions of his supervised release. He moved to terminate supervised release on the ground that a change in the law meant that his underlying state offense was no longer a felony."

• "Cate filed a motion to terminate his supervised release, arguing that he was innocent of the felon-in-possession charge because the actual maximum term of imprisonment for his underlying offense was only three months, which meant that the state offense was not a felony."

• "The district court denied Cate’s motion, explaining that . . . [it] could not simply declare Cate factually innocent. Instead, the court reasoned that the proper procedure would be for Cate to collaterally attack the validity of his sentence under 28 U.S.C. § 2255."

The Ninth Circuit agreed:

• "[A] supervised release revocation proceeding [] is not a proper forum in which to challenge an underlying conviction."

• "Just as § 3583(e) does not authorize a district court to modify or rescind an allegedly illegal condition, it does not authorize a district court to vacate an allegedly illegal conviction. Instead, the underlying conviction must be collaterally attacked in a proceeding under § 2255, not in a supervised release revocation proceeding."

The Court also determined the sentence was reasonable. 

8/20/20: Another big day in the Ninth Circuit - VICAR/RICO and 404(b)

Today brings seven published opinions, with three criminal cases. 

First, in United States v. Rodriguez, --- F.3d ---, No. 16-50213 (9th Cir. 2020), the Court affirmed the defendant's convictions for conspiracy in violation of the Racketeer Influenced and Corrupt Organizations (RICO) Act and conspiracy in violation of the Violent Crimes in Aid of Racketeering Activity (VICAR), arising out of the defendant’s role as “secretary” to a high-ranking member of the Mexican Mafia (La Eme). 

The case covers lots of ground (especially as to jury instructions) and is a must read for anyone defending a VICAR or RICO case.  Here are some key points. 

• "Rodriguez argues that the government must prove that a membership purpose—gaining entrance to, or maintaining or increasing her position in, the OCMM—was the but-for cause of her conduct. The government argued for, and the district court applied, aRodriguez argues that the government must prove that a membership purpose—gaining entrance to, or maintaining or increasing her position in, the OCMM—was the but-for cause of her conduct. The government argued for, and the district court applied, a lesser “substantial purpose” standard. We hold that the district court properly instructed the jury on the elements of a VICAR conspiracy."

• As to sufficiency, "[t]o satisfy the VICAR statute, the government did not need to prove that Rodriguez was considered an official member of the Mexican Mafia. The VICAR statute speaks of maintaining or increasing one’s “position” within the enterprise—a broad term that encompasses the ringleader of an Eme faction as well as the less formalized role of his 'secretary.'"

• As to RICO instructions, "Rodriguez contends, however, that the court twice supplanted the requirement that the government prove her 'agreement' that a participant would commit racketeering acts with the weaker requirement that the government need only prove her “knowledge” or “contemplation” that a participant would commit racketeering acts."

• "Even if Rodriguez’s view of the jury instructions is correct, her argument nevertheless fails. The district court used Rodriguez’s preferred formulation where it mattered, i.e., in laying out the elements of the offense. Rodriguez’s challenge arises from subsidiary language in the court’s unanimity charge—which bore only on juror unanimity as to the types of racketeering activity involved in the RICO conspiracy. Therefore, even accepting the premise of Rodriguez’s argument as true, we find no reversible error when the jury instructions are considered 'as a whole, and in context.'"

• On the issue of dual role opinion testimony, "[a]lthough we find no plain error in the district court’s instructions, we emphasize that trial courts should endeavor to explain clearly the differences between lay percipient testimony, lay opinion testimony (as governed by Rule 701), and expert opinion testimony (as governed by Rule 702) in settings where all three arise. In many cases, designating an umbrella category of 'opinion testimony' may fail to provide an appropriate level of nuance to guide the jury’s evaluation of dual role testimony."

• "We agree with Rodriguez that the district court erred in admitting some of the opinions of Gallardo and Feeney as expert testimony. The district court appeared to misapprehend the parameters of expert testimony in the gang expert context, assuming that the officers’ general qualifications sufficed to support the full range of opinion testimony they might give. But as we have explained, to provide interpretive testimony concerning terms or phrases without fixed meanings, 'an officer’s qualifications, including his experience with [gang] investigations and intercepted communications, are relevant but not alone sufficient to satisfy Federal Rule of Evidence 702.'  'Rather, Rule 702 requires district courts to assure that an expert’s methods for interpreting the new terminology are both reliable and adequately explained.'"

• We note that the district court’s struggle to be a “vigilant gatekeep[er]” of the line between the two roles, was compounded by its failure to bifurcate or otherwise clearly mark the distinctions in the officers’ testimony as lay and expert witnesses. District courts should be cognizant of the 'dangers' and confusion associated with allowing officers to give both lay and expert opinion testimony."

• To ameliorate this concern, we encourage district courts to 'clearly separate the case agent’s testimony between lay observations and expert testimony.' Careful separation of this testimony 'avoid[s] blurring the distinction between [an agent’s] distinct role as a lay witness and his role as an expert witness,' as happened in this trial. And clear demarcation of when officers are testifying in their lay or expert roles makes it easier to determine whether and how that testimony is supported by the proper foundation.

• But "[u]pon consideration of the totality of the record, we find that the erroneously admitted testimony was harmless."

Next, in United States v. Berckmann, --- F.3d ---, No. 18-10466 (9th Cir. 2020), the Court affirmed the defendant’s convictions for assaulting his wife with a dangerous weapon and assault of a spouse by strangulation, both of which occurred on federal land. 

This is a Rule 404(b) case.  The district court admitted evidence of the defendant's prior acts of violence against his wife.  On appeal, the Court found no error. 

• "Other acts of domestic violence involving the same victim are textbook examples of evidence admissible under Rule 404(b), and courts have permitted this evidence under a variety of theories. Some have explained that additional assaults are admissible as a 'critical part of the story' that clarifies the motive behind the charged crimes.Other courts have allowed this evidence to illustrate the 'history of [the] relationship' between the defendant and victim, which speaks to a defendant’s intent. These cases say essentially the same thing—prior (and subsequent) acts of violence towards the identical victim can shed light on the mindset of the defendant during the charged crime, such as whether there was a grudge between the two, a desire for payback of some sort, or that the defendant had the intent to exert control over this particular victim through violence."

Finally, in United States v. Lague, --- F.3d ---, No. 18-10500 (9th Cir. 2020), the Court affirmed a physician’s assistant’s conviction for distributing controlled substances outside the usual course of professional practice and without a legitimate medical purpose to five of his former patients, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(c), and (b)(2).

This is another Rule 404(b) case.  The district court admitted evidence of the defendant's practice-wide prescriptions (rather than just the charged prescriptions). 

On appeal, the defendant argued, "the district court erred, under Federal Rule of Evidence 404(b), by granting the government’s motion in limine to present data of his practice-wide prescriptions. He contends that these uncharged prescriptions do not support an inference that he intended to write the charged prescriptions outside the usual course of professional practice and without a legitimate medical purpose."

The Ninth Circuit disagreed. "We apply a four-part test to determine whether 'other act' evidence is admissible. A district court may admit other act evidence if: (1) the evidence tends to prove a material point; (2) the other act is not too remote in time; (3) the evidence is sufficient to support a finding that defendant committed the other act; and (4) (in certain cases) the act is similar to the offense charged."

The Court found the test was met: "we hold that uncharged prescriptions of controlled substances in enormous quantities, and in dangerous combinations, support a reasonable inference that the underlying prescriptions were issued outside the usual course of professional practice and without a legitimate medical purpose. Lague’s practice-wide evidence was therefore probative of his unlawful intent, undermining his defense at trial that the charged prescriptions amounted to 'a few bad judgments.' Because the prescription data made the intent element of the section 841 charges more probable, the district court properly admitted Lague’s uncharged prescriptions under Rule 404(b)."

Further, "[e]ven if we assume that the district court abused its discretion, under Rule 403, by failing to preview all of the underlying prescription data admitted at trial, the result would be the same. The patient-specific evidence overwhelmingly pointed to Lague’s guilt, and thus, any Rule 403 error would be harmless."

One helpful point: The government also argued "that the prescription data was admissible because it was intrinsic to the charged conduct."  The Court rejected this argument: "The intrinsic evidence exception to Rule 404(b) does not apply here. The uncharged prescriptions are not part of the section 841 charges, nor are they necessary for the government to offer a coherent narrative of Lague’s crimes."