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."
