6/26/20: one-to-one communications can satisfy the “notice” requirement in § 2251(d)(1)

Before summarizing this case, it should be noted that the statute at issue carries a 15-year minimum mandatory sentence. This is a fact not mentioned in the opinion.

In United States v. Cox, --- F.3d ---, No. 18-10416 (9th Cir. 2020), the defendant sent a one-to-one electronic message linking to a Dropbox account that contained child pornography.  The message containing the link read, “[g]oodies for daddy.”

She was charged with and convicted of, among other crimes, violating 18 U.S.C. § 2251(d)(1)(A). 

As relevant, it provides: "Any person who . . . knowingly makes, prints, or publishes, or causes to be made, printed, or published, any notice or advertisement seeking or offering . . . (A) to receive, exchange, buy, produce, display, distribute, or reproduce, any visual depiction, if the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct and such visual depiction is of such conduct[.]"

On appeal, the defendant argued the statute contemplated something other than direct, one-to-one communications.  The Court rejected that argument holding that the single message to one other person supported the conviction:  "we hold that one-to-one communications can satisfy the “notice” requirement under 18 U.S.C. § 2251(d)(1)."

6/25/20: New rule on plain error review

In United States v. Johnson, --- F.3d ---, No. 17-10252 (9th Cir. 2020), the Court affirmed the defendant's conviction for being a felon in possession of a firearm.  This was a case remanded by the Supreme Court in light of Rehaif v. United States, 139 S. Ct. 2191 (2019) (holding that a defendant may be convicted under § 922(g) only if the government proves that the defendant “knew he belonged to the relevant category of persons barred from possessing a firearm”).

On remand, the Court basically held that the defendant does not get the full benefit of the change in the law, but the government does.  

As to the standard of review, the Court said this: 

 Johnson did not argue in the district court that the evidence was insufficient to sustain his convictions, which is understandable. At the time of Johnson’s trial, our circuit’s law did not require the government to prove that a defendant knew of his status as a convicted felon. See United States v. Miller, 105 F.3d 552, 555 (9th Cir. 1997). The Supreme Court’s intervening decision in Rehaif has of course changed the law in that regard. Nevertheless, because Johnson did not raise his sufficiency-of-the-evidence challenge in the district court, we review that challenge for plain error under Federal Rule of Criminal Procedure 52(b). 

In other words, although the defendant had no reason to make a futile Rule 29 motion, the fact that he did not is held against him.  

But a different rule applied to the government.  Because it had no reason to admit evidence as to whether the defendant knew of his prohibited status, the Court would reach out beyond the trial record to find it.  And then it would use that evidence -- never considered by the trier of fact -- to affirm a conviction that everyone agreed was legally insufficient. Here's what the Court said:

[E]ven when a defendant challenges the sufficiency of the evidence for the first time on appeal, the validity of the defendant’s conviction must rise or fall on the record submitted to the trier of fact, and no retrial will follow if the government’s evidence is found wanting. 

There is an exception to this general rule, however, and it applies in the circumstances present here. We held in Weems that the Double Jeopardy Clause does not bar a retrial when the government’s evidence was sufficient to sustain a conviction at the time of trial, but has subsequently been rendered insufficient due to an intervening change in the law. In Weems, the government introduced sufficient evidence to sustain a conviction under the law as it stood at the time of trial, but the Supreme Court subsequently held that the charged offense required proof of an additional knowledge element. Id. at 530. We noted that “[t]he government had no reason to introduce such evidence because, at the time of trial, under the law of our circuit, the government was not required to prove that a defendant knew that structuring was illegal.” Id. at 531. In those circumstances, we concluded, the Double Jeopardy Clause does not bar a retrial because the government “is not being given a second opportunity to prove what it should have proved earlier.” Id. 

                                                                               ***

In our view, the fact that a retrial is authorized distinguishes this case from James and permits us to review the entire record on appeal—not just the record adduced at trial—in assessing whether Johnson has satisfied the fourth prong of plain-error review.

 ***

To be sure, in most cases involving unpreserved sufficiency-of-the-evidence challenges, the portions of the record on appeal outside the trial record will be irrelevant to the analysis. In the ordinary case, as in James, a retrial will not be permitted if the government’s evidence is found insufficient, so the validity of the defendant’s conviction must be judged based on the trial record alone. Even in cases subject to the exception created in Weems, the record on appeal will often not disclose what additional evidence the government might possess to prove an element that it had no reason to prove during the first trial. But if the record on appeal does disclose what that evidence consists of, and the evidence is uncontroverted, we can think of no sound reason to ignore it when deciding whether refusal to correct an unpreserved error would result in a miscarriage of justice. 

6/23/20: Inventory searches and conditions of supervised release

In United States v. Magdirila, --- F.3d ---, No. 18-50430 (9th Cir. 2020), the Court affirmed the district court’s denial of the defendant’s motion to suppress contraband found during an inventory search of a vehicle he was driving, vacated challenged conditions of supervised release, and remanded.

This case follows on United States v. Garay, 938 F.3d 1108 (9th Cir. 2019), which held the failure to complete an inventory search form was not a material deviation from policy and did not make the search invalid.

Here, like Garay, the Court found the officer complied substantially with the applicable policy’s direction to inventory the property in an impounded vehicle.

The Court also vacated for vagueness a condition of supervised release that provided:  "As directed by the probation officer, the defendant must notify specific persons and organizations of specific risks posed by the defendant to those persons and organizations and must permit the probation officer to confirm the defendant’s compliance with such requirement and to make such notifications."

Judge Berzon concurred to note (correctly) that Garay was wrongly decided.

Finally, there is an informative discussion of preservation in the Fourth Amendment context:

Except for good cause, a motion to suppress must “be raised by pretrial motion.” Federal Rule of Criminal Procedure 12(b)(3)(C); see also United States v. Guerrero, 921 F.3d 895, 897–98 (9th Cir. 2019). Defendants ordinarily may not raise new grounds for suppression on appeal. See United States v. Keesee, 358 F.3d 1217, 1220 (9th Cir. 2004). That is, a defendant may not (1) assert facts contradicting the facts he or she asserted before the district court, id.; (2) rely on facts that were not raised before or relied upon by the district court, Guerrero, 921 F.3d at 898; or (3) make a new legal argument in support of suppression, unless the issue does not affect or rely on the factual record developed by the parties, see United States v. Hawkins, 249 F.3d 867, 872 (9th Cir. 2001), overruled on other grounds by United States v. Perez, 116 F.3d 840 (9th Cir. 1997) (en banc). An argument is not waived if “the district court nevertheless addressed the merits of the issue not explicitly raised by the party.” Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1260 n.8 (9th Cir. 2010) (internal quotation marks and citation omitted).

6/18/20: When to file a notice of appeal when there is a restitution hearing.

In United States v. Shehadeh, --- F.3d ---, No. 18-10399 (9th Cir. 2020), the Court considered the scenario in which a defendant's sentencing hearing takes place before a hearing on restitution. 

The defendant waited to file the notice of appeal until after the restitution hearing.  The government argued it was untimely because the defendant did not appeal within fourteen days of the district court’s entry of judgment of his custodial sentence.

The Court rejected the government's argument, holding that where a district court defers its restitution order, a defendant wishing to appeal his conviction and sentence of imprisonment may enter a notice of appeal either within fourteen days following the district court’s entry of the custodial sentence, or within fourteen days of the entry of the amended judgment, which includes the amount of restitution.

The Court also held that, until the restitution hearing takes place, the sentence is not final.  Thus, a defendant may file a motion to withdraw his plea in the interim between the initial sentencing hearing and the restitution hearing.

On the facts of this case, however, the Court held that there was no error in denying the defendant's motion to withdraw his plea.

6/16/20: California Penal Code § 261.5(c) is NOT categorically sexual abuse of a minor

In United States v. Jaycox, --- F.3d ---, No. 19-10077 (9th Cir. 2020), the Court vacated the defendant's sentence. 

Based on the defendant’s prior conviction under California Penal Code § 261.5(c), which criminalizes “unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator,” the district court applied 18 U.S.C. § 2252(b)(1), which increases the mandatory minimum sentence from five to fifteen years if a defendant has a prior conviction “under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.”

On appeal, the Court held this was error: because the minimum conduct required for a conviction includes consensual sexual intercourse between an individual a day shy of eighteen and an individual who is 21 years of age, § 261.5(c) is not a categorical match to the general federal definition of sexual abuse of a minor.  In other words, because section 261.5(c) applies to minors who can be over 16, the prohibited conduct is not necessarily abusive. 

Note, section 261.5(d), which applies to minors under 16, is abusive.

6/15/20: Limitation on resentencing under the First Step Act

In United States v. Kelly, --- F.3d ---, No. 19-30066 (9th Cir. 2020), the Court "deepen[ed] a circuit split" on whether the First Step Act (FSA) allows plenary drug resentencing. 

The Court held the FSA does not permit a plenary resentencing proceeding in which a defendant’s career offender status can be reconsidered.  Although the parties agreed the defendant would not be a career offender under current law, the Court held the FSA prohibited the district court from reaching that issue. 

Instead, a district court that decides to exercise its discretion under the First Step Act must: "(1) place itself in the counterfactual situation where all the applicable laws that existed at the time the covered offense was committed are in place, making only the changes required by sections 2 and 3 of the Fair Sentencing Act; and (2) determine the appropriate sentence under this counterfactual legal regime."

[Sections 2 and 3 of the Fair Sentencing Act have to do with revised sentencing ranges for crack cocaine].

The upshot is this:  The district court calculates the sentencing range as if it were sentencing under sections 2 and 3 of the Fair Sentencing Act.  Then, it can impose sentence considering the 3553 factors, like post-sentence rehabilitation. 

6/11/20: Massive opinion in a gang case

It has been a bit since the Ninth Circuit published a criminal decision. Today brings a wide-ranging 57-page opinion. 

The saying goes that bad facts make bad law.  This case began with a gang shooting in which an infant was killed.  You can guess most of the rest.

In United States v. Perez, et. al., --- F.3d ---, No. 13-50014 (9th Cir. 2020), the Ninth Circuit affirmed the convictions and life sentences of most of the appellants, with one exception (discussed below).

Given the length of the decision, I'm not going to summarize the whole thing.  Instead, I suggest reading Ninth Circuit's summary using the link above. 

A few points to highlight. 

- If you have a RICO or VICAR case, you should read this opinion in full.

- There is an extended discussion of the line between lay and expert testimony in the gang context.  Long story short, if the witness was part of the investigation, there is a good chance his or her testimony will be allowed as lay opinion.

- The Court clarifies the law on extraterritorial jurisdiction of RICO and VICAR.  They may have extraterritorial effect, “but only to the extent that the predicates alleged in a particular case themselves apply extraterritorially.”

- Because California attempted murder does not apply extraterritorially, the Court vacated one of the defendant's convictions for VICAR attempted murder.

- This is what the Court said about harmless-error review when there is a jury instructions error of constitutional dimension: "Our harmless-error standard emphasizes that where evidence of a defendant’s guilt is “overwhelming,” even significant jury-instruction error can be harmless. However, failing to instruct on an element of a crime is not harmless if there is sufficient evidence that the jury could have found in favor of the defendant if properly instructed."

- The Court also rejected the defendants' argument about the standard to be applied to drug quantity findings: "Appellants argue that the district court should have applied the clear and convincing standard of proof in making drug quantity determinations for sentencing. But we have “repeatedly held that sentencing determinations relating to the extent of a criminal conspiracy need not be established by clear and convincing evidence.” Further, we have specifically stated that “factual disputes regarding drug quantity” should be resolved via the preponderance of the evidence standard."