7/27/20: Two cases - one on attenuation for suppression, and one on interlocutory appeal from a motion to quash a subpoena

Two cases today.

In United States v. Bocharnikov, --- F.3d ---, No. 19-30163 (9th Cir. 2020), the Court reversed the district court's denial of a motion to suppress inculpatory statements in a case in which the defendant entered a conditional guilty plea to aiming a laser at an aircraft in violation of 18 U.S.C. § 39A.

Here are the facts: After someone at the defendant’s address pointed a laser at a police aircraft in flight, officers went to the defendant’s home, illegally detained him, interrogated him without Miranda warnings, and after the defendant confessed, seized the laser. Eight months later, an FBI agent approached the defendant outside his home and stated he was there to ask “follow-up” questions about the incident. The defendant again admitted to shining the laser at the plane. The defendant moved to suppress the inculpatory statements he made to the FBI agent because the illegality of the first encounter tainted the second.

This case is interesting because the initial confession at issue resulted from a Fourth Amendment violation.  As the Court explained, "when a confession results from certain types of Fourth Amendment violations (rather than a Fifth Amendment violation), the government must go beyond proving that the confession was voluntary—it must also 'show a sufficient break in events to undermine the inference that the confession was caused by the Fourth Amendment violation.'" 

"This is a fact- and case-specific inquiry. Three factors are relevant in our analysis of whether Bocharnikov’s statements were 'sufficiently attenuated from the underlying illegality to be admissible: (1) the temporal proximity of the search to the confession; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct.'"

In this case, the parties agreed the Fourth Amendment violation was a detention without probable cause, and thus the attenuation analysis applied. The Court, applying the three factors, held: "the government cannot carry its burden of proving that Bocharnikov’s statements to Agent Hoover were sufficiently attenuated from the illegal detention and seizure eight months prior. His statements should have been suppressed."

There was also a concurrence, noting: "At no point has the government meaningfully analyzed Bocharnikov’s first encounter with law enforcement to help us determine what sort of violation occurred."  The concurrence explained: "The nature of the initial violation actually matters a great deal: only some constitutional violations are capable of tainting subsequent confessions."

Next, In re Grand Jury Investigation, --- F.3d ---, No. 19-10187 (9th Cir. 2020), involved two appeals arising from a federal grand jury investigation into the acquisition of one company by another.  The Court (1) dismissed for lack of appellate jurisdiction the Doe Company’s interlocutory appeal seeking review of the district court’s order enforcing Doe Company partner Pat Roe’s compliance with a grand jury subpoena, and (2) affirmed the district court’s orders enforcing the Doe Company’s compliance with a grand jury subpoena and holding the Doe Company in contempt for failure to produce the subpoenaed documents in its possession.

On the interlocutory appeal issue, the Court held, under Perlman v. United States, 247 U.S. 7 (1918), it could entertain interlocutory appeals from orders enforcing grand jury subpoenas only when they require production of materials that are claimed to be privileged or otherwise legally protected from disclosure:  "In seeking interlocutory review of a court order enforcing a grand jury subpoena, an appellant must assert a claim of evidentiary privilege or some other legal claim specifically protecting against disclosure to the grand jury. The appellant must claim a 'right . . . to secrecy of the transaction' that can be vindicated only through interlocutory review."

Because the Doe Company made no such claim, the Court lacked jurisdiction.

As to the enforcement issue, the Company argued the district court lacked in personam jurisdiction and that service of the subpoena was improper.  The Court rejected these arguments.

It explained, the government need only show "that there is a reasonable probability that ultimately it will succeed in establishing the facts necessary for the exercise of jurisdiction" over a nonresident alleged to have violated federal criminal law.

Further, service can be made "upon a representative so integrated with the organization that he will know what to do with the papers."

7/23/20: Great venue case

In United States v. Moran-Garcia, --- F.3d ---, No. 19-50134 (9th Cir. 2020), the Ninth Circuit gives us a great decision on venue.

The Court vacated the defendant's convictions for attempting to enter the United States after having been deported and attempting to enter the United States other than at a place designated (8 USC 1326, 1325), and remanded for dismissal of the indictment without prejudice.

The case really is a must read for federal practitioners.  Here are the highlights:

Facts

Before trial, the government argued that the district court should take judicial notice that the Southern District of California extended twelve miles out to sea and so instruct the jury. The evidence at trial established that Moran was apprehended six miles off the coast, within sight of San Diego, in the SD Ca.

At the conclusion of the government’s evidence, defense counsel moved for a judgment of acquittal based on insufficient evidence of venue. Defense counsel argued that the Southern District extended only three miles out to sea, not twelve, so the government had failed to prove that the offense was committed within the Southern District. The district court denied the motion, accepting the government’s argument that the location where the boat was captured was within the Southern District.

The district court then ruled that no jury instruction on venue was appropriate because, in its view, venue was not a question of fact for the jury but instead a legal question that it had already decided by denying defense counsel’s Rule 29 motion.

However, the government (and the district court) were wrong.  As the Ninth explained: "The territorial sea of the United States . . . extends to 12 nautical miles, but that is not true of the Southern District of California. California law defines the western border of San Diego County as extending to a point three English miles [into the] Pacific Ocean. Thus it is beyond debate that the location of the putative offense was within the territorial waters of the United States but was not within the Southern District of California."

Law

"Controlling circuit law establishes that, although venue is not an element of the offense, nevertheless it must still be proved by the government at trial. Venue is a question of fact that the government must prove by a preponderance of the evidence. It is a jury question. [N]ormally it is not for the court to determine venue and it is error to not give a requested instruction on venue. Venue is part of the bedrock of our federal system,  and proper venue is a constitutional right, not a mere technicality. The district court therefore could not properly decide venue itself and should have submitted the issue to the jury. The district court could not properly take judicial notice that the location where the boat was captured fell within the Southern District of California, since it did not."

The Court also rejected the government's alternative argument "that venue was proper in the Southern District of California under 18 U.S.C. § 3238, which provides that the trial of an offense begun or committed outside any judicial district 'shall be in the district in which the offender . . . is arrested or is first brought.'"

The Court explained: "The government would thus have us apply the usual test for insufficiency of evidence: whether 'any rational juror' could have concluded that Moran was 'first brought' to the Southern District of California. This would be the correct test if the jury had concluded that venue was proper, but it is the wrong test for harmless error in this case where the question was not put to the jury and the jury made no determination."

Instead: "'[W]hen a court has failed to give a venue instruction to the jury, that error will be viewed as harmless if the evidence viewed rationally by a jury could only support a conclusion that venue existed.'  Thus, the test for harmless error is not whether 'any rational juror' could have concluded that Moran was first brought to the Southern District of California, but rather whether the evidence, had it been viewed by a rational jury, could only have led to that conclusion."

"This is a kind of converse of the sufficiency of the evidence test applicable where a jury has made a determination: Instead of asking whether a rational juror could have reached the conclusion, we ask whether a rational juror could have rejected the urged conclusion. Applying the correct test, the government has not established harmlessness of the error."

The Court further rejected the government's attempt to meet its burden by using evidence not presented to the jury: "This argument is hard to understand, since rational jurors could not have drawn an inference from evidence never presented to them."

Thus, the Court concluded: "Venue is not an element of the crime. Unlike an element, it need not be proved beyond a reasonable doubt. But venue does need to be put to the jury, and proved by the government, albeit only by a preponderance of the evidence. Neither was done here, and the evidence viewed rationally by a jury would not necessarily support the conclusion that venue lay in the Southern District of California. The errors, not being harmless under the applicable standard, require that Moran’s conviction be vacated."

The Court, however, allowed for the possibility of a retrial, explaining: "Generally, under the Double Jeopardy Clause, the government does not get a second trial to prove what it failed to prove by sufficient evidence in the first trial. But double jeopardy does not apply in the same way to a failure to prove venue as it does to a failure to prove an element of an offense. Unlike the typical reversal for sufficiency of the evidence, the missing evidence here did not go to guilt or innocence; that is, it had nothing to do with whether the defendant did or did not do the criminal acts alleged in the indictment."

7/22/20: This is interesting (at least for an appellate lawyer): decision on civil fines

No criminal cases today from the 9th Circuit, but there is a decision on the Excessive Fines Clause of the 8th Amendment (which is close enough for me).

In Pimentel v. City of Los Angeles, --- F.3d ---, No. 18-56553 (9th Cir. 2020), the Court held that the Excessive Fines Clause applies to municipal parking fines.   It thus applied the factors from United States Bajakajian, 524 U.S. 321 (1998) / United States v. $100,348 in U.S. Currency, 354 F.3d 1110, 1122 (9th Cir. 2004) (enunciating the “Bajakajian factors”), to determine whether the fine at issue was excessive. 

The Court concluded L.A.'s $63 parking fine was not unconstitutionally excessive, but the 100% late fee might be, so it remanded. 

Judge Bennet concurred.  He does not think the Excessive Fines Clause should apply to municipal parking fines, but given that L.A. conceded the issue, he agreed with the decision.

7/17/20: Good Brady case and a decision on the interstate-commerce element of Hobbs Act robbery

In United States v. Obagi, --- F.3d ---, No. 18-50170 (9th Cir. 2020), a divided panel vacated the defendants' mortgage fraud convictions based on Brady error.

In short, after closing arguments, the government disclosed important impeachment evidence:

Unfortunately, one of prosecution’s key tenets during closing—that the jurors could trust the culpable cooperators because they could trust Saad as an independent corroborating witness—was false. During a break between Obagi’s and Salah’s defense closings, a different prosecutor from the U.S. Attorney’s Office who just happened to watch the closing arguments recognized that Saad had in fact received immunity in a separate mortgage fraud investigation and alerted the trial prosecutors to the enormous oversight. The prosecution then notified the court and defense counsel about Saad’s June 2014 immunity agreement, immediately disclosing both the agreement and two investigative reports.

The trial court directed the jury to disregard the subject witness's testimony.  But it did not grant a new trial.

The majority reversed, explaining:

The government violates its discovery obligations under Brady v. Maryland, 373 U.S. 83 (1963), if it suppresses material evidence that is favorable to the accused. Strickler v. Green, 527 U.S. 263, 281–82 (1999). Evidence favorable to the accused “includes evidence that would help the defendant impeach a witness.” Sanders v. Cullen, 873 F.3d 778, 802 (9th Cir. 2017) (citing Giglio v. United States, 405 U.S. 150, 154–55 (1972)); see also U.S. Dep’t of Justice, Justice Manual § 9-5.001 (2020) (imposing disclosure obligations on the government beyond that provided for by either the Federal Rules or the Constitution). Suppression occurs whenever the government fails to disclose evidence, regardless of the government’s good or bad faith. Wearry v. Cain, 136 S. Ct. 1002, 1006 (2016). Evidence is material—and therefore requires reversal— when there is “any reasonable likelihood that it could have affected the judgment of the jury.” Id. (internal quotation marks and citation omitted). Thus, a defendant can prevail under Brady even if “the undisclosed information may not have affected the jury’s verdict.” Id. at 1006 n.6; see also Browning v. Baker, 875 F.3d 444, 470 (9th Cir. 2017) (“Even if the jury—armed with all of this new evidence— could have voted to convict [Browning], we have no confidence that it would have done so.” (alteration in original) (quoting Wearry, 136 S. Ct. at 1007)). 

It further held the curative instruction "was too late—the genie was out of the bottle. Not only had the government’s closing argument theme been cast—the jury could trust Burchell and the other cooperators because Saad was an “independent witness” who reliably corroborated Burchell—but Obagi’s own counsel had completed closing argument without the benefit of being able to attack Saad’s credibility. Asking defense counsel to reframe his theory of the case—both in terms of examining witnesses and arguing to the jury—after he had spoken to the jury for the last time was simply too much."

The dissent "fear[ed] we are unnecessarily curtailing the discretion afforded district courts in responding to Brady violations"

Next, in United States v. Luong, --- F.3d ---, No. 16-10213 (9th Cir. 2020), the Court affirmed the defendant's convictions for Hobbs Act Robbery and other crimes, but vacated the sentence.

The defendant used Craigslist to advertise the sale of a car, but then robbed a potential buyer.

The opinion covers a lot of issues, but I'm going to focus on a couple.

First, as to the Hobbs Act’s interstate-commerce element, the Court held it was "satisfied in cases like this one, where the government demonstrates that a person used a commercial website to advertise a commercial transaction in order to facilitate a robbery."

Also, here's an interesting comment.  The Ninth Circuit's "Pattern jury instructions are not authoritative legal pronouncements."

The Court found government misconduct during closing, but held it was harmless: "The government’s statements plainly were improper: the government impermissibly attacked the credibility of defense counsel and told the jury that it could only carry out its duty by siding with the government."

Finally, the Court vacated the sentence based on the district court's denial of a reduction for acceptance.

"Challenging the federal government’s jurisdiction to prosecute the alleged offense conduct is not inconsistent with contrition. Nor is a defendant foreclosed from receiving credit for acceptance of responsibility because his attorney made good-faith challenges at trial to evidence going to that question. Insofar as the district court declined to give the adjustment based on such challenges by Luong’s counsel, it erred as a matter of law."

7/10/20: Marijuana prosecution enjoined

In United States v. Pisarski, --- F.3d ---, No. 17-10428 (9th Cir. 2020), a divided panel affirmed the  district court’s pre-sentencing order enjoining the government from spending additional funds on the prosecution of two defendants for conspiracy to distribute marijuana.

As you may recall, Congress passed an appropriations rider prohibiting the expenditure of funds on federal prosecutions for marijuana use, possession, or cultivation if the defendant complied with the state’s medical marijuana laws.

In United States v. McIntosh, 833 F.3d 1163 (9th Cir. 2016), the Court held that defendants may seek to enjoin the expenditure of DOJ funds only if they “strictly comply with all state-law conditions regarding the use, distribution, possession, and cultivation of medical marijuana.”

This case follows on McIntosh.  The district court held an evidentiary hearing to determine whether the defendants were in strict compliance, as required by McIntosh.  It held they were and thus enjoined the federal prosecution. 

The majority affirmed. 

First, it concluded the rider did not prohibit the government's appeal: "The appropriations rider does not, however, bar the government from spending funds to determine whether the rider applies to the prosecution in the first place."

Second, it held that the district court did not err in its legal analysis of controlling state law.  Nor did it clearly err in its factual findings: "We have no difficulty concluding that the district court did not clearly err in determining that [the defendants] proved by a preponderance of evidence that they were in strict compliance with California medical marijuana law at the time of their arrest."

Judge Wallace dissented on the second point.

7/7/20: Voris & Vandergroen (the cases today)

Sounds like a law firm.  It's not.

In United States v. Voris, --- F.3d ---, No. 19-10075 (9th Cir. 2020), the defendant was convicted of multiple counts of assault on a federal officer with a deadly or dangerous weapon.  He was sentenced to 1,750 months.

The case arose after the defendant shot at U.S. Marshals trying to arrest him on a warrant.

On appeal, the defendant argued: (1) his five assault convictions are multiplicitous, (2) his five § 924(c) convictions are multiplicitous, (3) he is entitled to resentencing under § 403 of the First Step Act, and (4) the district court abused its discretion in denying his motions for a mistrial and new trial.

The Court vacated one of the assault convictions, one of the 924(c) convictions, and otherwise affirmed.

As to the assault convictions, the Court held: "one gunshot can support only one assault under § 111. Thus, Voris can be convicted of only four assaults based on the four shots he fired toward the door."

"Nor does logic support Voris’s position. Voris committed four assaultive acts by firing his weapon four separate times toward the door."

"As long as there were four assaultive acts and at least four potential victims, there were four assaults."

The Court then considered "whether § 924(c) requires that each § 924(c) charge be based on a separate firearm use."  It held: "the undisputed facts make clear that Voris’s conduct amounts to four such 'uses.' Here Voris used his gun four separate times when he fired four shots toward the door—he pulled the trigger four times, in four slightly different directions, resulting in four separate discharges, and there were at least four potential victims."

"Because each discharge here may be considered a use within the meaning of the statute, it was appropriate to charge Voris with four § 924(c) offenses based on the four shots he fired toward the door."

As to the resentencing argument, the Court held: "§ 403 of the First Step Act does not apply to cases pending on appeal in which the district court sentenced the defendant before the enactment of the First Step Act. Voris therefore is not entitled to resentencing under the First Step Act in this appeal. [But it might still apply on resentencing].

Finally, the Court rejected the defendant's arguments for a new trial.

In United States v. Vandergroen, --- F.3d ---, No. 19-10075 (9th Cir. 2020), the Court affirmed the denial of the defendant's motion to suppress a gun found on him during a Terry step.

The question was whether the 911 call reporting a man with a gun generally meeting the defendant's description provided sufficient reasonable suspicion.  The Court held that it did.

When evaluating the reliability of a tip such as the 911 call here, in which a caller reports information from a third party regarding possible criminal activity, we consider the reliability of both the caller himself and the third party whose tip he conveys. 

The totality of the circumstances in this case demonstrates that the 911 call was sufficiently reliable to support reasonable suspicion. 

While the 911 call was thus reliable, it may only support reasonable suspicion if it also “provide[d] information on potential illegal activity.”  In other words, a tip must demonstrate that “criminal activity may be afoot,” and the “absence of any presumptively unlawful activity” from a tip will render it inadequate to support reasonable suspicion, Furthermore, any potential criminal activity identified must be serious enough to justify “immediate detention of a suspect.” 

The 911 call gave the police reason to suspect Vandergroen was carrying a concealed firearm, which is presumptively a crime in California. 

Witness 2 indicated that patrons had seen Vandergroen with a gun “on him.” This language, conveyed to the police by the dispatcher, would suggest to a reasonable police officer that Vandergroen at least potentially had the gun concealed on his body.

7/6/20: A stop case and a supervised release case

In United States v. Malik, --- F.3d ---, No. 19-10166 (9th Cir. 2020), the Court reversed the district court's grant of a suppression motion.  The opinion does not break new ground. 

The Court held the district court’s failure to include the driver’s contradictory statements about when he had smoked a marijuana cigarette in its totality of the circumstances analysis was error, and that the district court’s failure to analyze the totality of the circumstances known to the trooper is part and parcel of its broader error; its focus on the trooper’s subjective motivations for performing the search.

The Court clarified, the test is an objective one.  And under the facts of the case, there was probable cause for the search. 

In United States v. Many White Horses, --- F.3d ---, No. 19-30018 (9th Cir. 2020), the Court affirmed the district court’s imposition of a special condition of supervised release upon the defendant, an enrolled member of the Blackfeet Indian Nation.

"Special Condition 11 is not a de facto banishment or exclusion from the Blackfeet Reservation. The condition allows Many White Horses to freely travel or reside in all but one quarter square mile of the 1.5 million acres of reservation land, restricting only his access to Browning itself. He is also free to visit his family, to participate in tribal life, and to receive tribal services in Browning—he simply must seek advance approval from his probation officer so that the officer knows his location and can evaluate the potential risks of his visit."

The Court also found the condition was substantively reasonable.