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."

8/19/20: Big day in the Ninth Circuit

 The Ninth Circuit published eight opinions today, including two criminal and two habeas.  I'm going to cover the two criminal decisions and one of the habeas decisions.

First, United States v. Valencia-Lopez, --- F.3d ---, No. 18-10482 (9th Cir. 2020), is an important decision for anyone practicing in a border district. 

The Court vacated the defendant's convictions for drug importation, holding that the district court erred in allowing expert testimony that the likelihood drug trafficking organizations would entrust a large quantity of illegal drugs to the driver of a commercial vehicle who was forced or threatened to comply was “[a]lmost nil, almost none.”  

The Court concluded the district court erred in admitting this testimony without a proper reliability determination under Daubert.  There is lots of helpful language.  The takeaway is that expert testimony without a specific reliability determination for that testimony is error.  Here are the highlights:

• Under Rule 702, before admitting expert testimony, “the district court must perform a ‘gatekeeping role’ [to] ensur[e] that the testimony is both ‘relevant’ and ‘reliable.’” This gatekeeping obligation “applies to all (not just scientific) expert testimony.” 

• But “the trial court’s broad latitude to make the reliability determination does not include the discretion to abdicate completely its responsibility to do so.” We have explained that a district court abdicates its gatekeeping role, and necessarily abuses its discretion, when it makes no reliability findings.

• Daubert and Kumho Tire may be harder to apply when the expert testimony is “experience-based” rather than “science-based.” But any such difficulty cannot simply lead to a “that goes to weight, not admissibility” default, as here. Indeed, we see a strong argument that reliability becomes more, not less, important when the “experience-based” expert opinion is perhaps not subject to routine testing, error rate, or peer review type analysis, like science-based expert testimony.

• Here, the district court made no reliability findings about Agent Hall’s testimony. Agent Hall had sufficient experience and knowledge to qualify as an expert. But the record contains no evidence as to why that experience, by itself, equals reliability for his testimony that there was “[a]lmost nil, almost no[]” likelihood drug cartels would do what Valencia-Lopez testified happened here—coerce him, at gunpoint, to carry illegal drugs across the border.

• While the district court here did not have to hold a Daubert hearing,  it still had an unwavering gatekeeping obligation to determine the reliability of Agent Hall’s testimony. 

• With no Daubert hearing or voir dire, “‘some [other] reliability determination must be apparent from the record’ before we can uphold a district court’s decision to admit expert testimony.”  We find none in the record; rather, the district court qualified Agent Hall as an expert without explicitly finding his proposed testimony reliable. That was an abuse of discretion.

• The district court also did not fulfill its gatekeeping role for a second, more important reason. The court admitted Agent Hall’s testimony despite the government establishing no reliable basis for Agent Hall’s “[a]lmost nil, almost none” expert testimony. 

• It is one thing for a witness with Agent Hall’s expertise to testify as to the risks to a cartel of using a coerced courier. But that is a far cry from him essentially testifying that the cartel never does it. Such testimony would not be allowed, for example, in a civil case involving a death allegedly caused by an inoculation without a rigorous reliability evaluation of the causation opinion.7 We know the nature of such evaluation is not carved in stone, either for that hypothetical case or this real one. But we also know that this evaluation is required.

• Agent Hall never explained the methodology, if any, that he relied on to arrive at the near zero probability of drug trafficking organizations using coerced couriers. Rather, the district court appeared to rely on Agent Hall’s general qualifications to qualify him as an expert, contrary to our admonition in Hermanek. See id. Moreover, the record does not establish the method Agent Hall employed to arrive at his “almost nil” opinion. 

• His qualifications and experience are relevant, and indeed necessary. But they cannot establish the reliability and thus the admissibility of the expert testimony at issue. Rather, like the expert in Hermanek, Agent Hall “failed to explain in any detail the knowledge, investigatory facts and evidence he was drawing from,” to eventually conclude the probability of coercion by drug trafficking organizations was “almost nil.” Crucially, he failed to link his general expertise with his “almost nil” conclusion, and by never explaining how his expertise lent itself to that conclusion, we cannot sort out what “reliable principles and methods underlie the particular conclusions offered.” 

• The issue is not whether Agent Hall had knowledge and experience sufficient to allow him to testify as an expert on the modus operandi of drug cartels. He did. Nor is the issue whether he had sufficient “background for his opinions.” Rather, the issue is whether he provided a reliable basis for his opinion that the likelihood of drug cartels using coerced couriers is “[a]lmost nil, almost none.” As explained above, he did not.

• We do not question that expert modus operandi testimony is admissible in drug smuggling cases involving unknowing or coerced couriers. But the government must still establish that its expert opinions are reliable under the standards mandated by Daubert and Kumho Tire. The government failed to do so here.

Moving to whether the error was harmless, the Court explained, "[w]e begin with the presumption of prejudice, which the government can rebut by showing “it is more probable than not that the jury would have reached the same verdict even if the evidence had not been admitted.” 

The Court held: "the government bears the burden of proving the error was harmless, and it cannot merely speculate that the jury both disregarded Agent Hall’s testimony and disbelieved Valencia-Lopez’s testimony. The government has not carried its burden -- the error here was not harmless. We thus vacate Valencia-Lopez’s convictions and remand for a new trial.

Next, United States v. Swenson, --- F.3d ---, No. 18-30215 (9th Cir. 2020), deals with restitution under the Mandatory Victims Restitution Act (MVRA).

In very short, the defendant was convicted of fraud crimes and ordered to pay restitution.  To enforce the restitution order, the government obtained a writ of garnishment against the defendant's wife's bank account.  The account held her Social Security benefits.  The government's theory was that those funds were subject to garnishment as community property.

The Ninth Circuit said no. It held, the wife's "Social Security benefits are not subject to garnishment pursuant to the MVRA in connection with her husband’s criminal restitution order."

Also, as to jurisdiction, the Court explained, "[a] disposition order (or termination of the garnishment otherwise) concludes litigation of the writ on the merits and is thus a final judgment for purposes of appeal."

Finally, in Kipp v. Davis, --- F.3d ---, No. 16-99004 (9th Cir. 2020), the Court reversed the denial of the defendant's 2254 petition challenging his California conviction and death sentence for first degree murder and attempted rape.

Two things to highlight about this case.  

First, it was decided under 2254(d)(2).  The Court found the California Supreme Court based its decision  on an unreasonable determination of the facts.  Thus, the Court considered the underlying claim without the deference AEDPA otherwise requires.  There is a very detailed and helpful discussion of 2254(d)(2) review.

Second, as to the underlying claim, the Court held that the admission of other act evidence (an unadjudicated murder) violated the defendant's due process rights.  

The general test is “whether the admission of evidence rendered the trial so fundamentally unfair as to violate due process.”

But there is also a more detailed test: [T]he admission of other crimes evidence violate[s] due process where: (1) the balance of the prosecution’s case against the defendant was “solely circumstantial;” (2) the other crimes evidence . . . was similar to the [crime] for which [the defendant] was on trial; (3) the prosecutor relied on the other crimes evidence at several points during the trial; and (4) the other crimes evidence was “emotionally charged.”

Applying this test, the Court "conclude[d] that there is no highly distinctive pattern that would justify an inference of the same intent or perpetrator behind both crimes. Rather, there is a high risk that a juror would have assumed that if Kipp committed the Frizzell homicide, he had the propensity to commit the Howard homicide as well."

Thus, "the trial court’s admission of the Frizzell evidence deprived Kipp of a fundamentally fair trial in violation of his due process rights."  The Court found actual prejudice and reversed. 

[In a different opinion, the Court affirmed the denial of the defendant's other 2254 petition from a different murder conviction and death sentence]. 

8/13/20: California 187 is overbroad for federal murder

This comes out of the immigration world.  

In Gomez Fernandez v. Barr, --- F.3d ---, No. 19-70079 (9th Cir. 2020), the Court held that California 187 is overbroad when compared to the federal murder definition in 18 U.S.C. § 1111(a).

In short, the California murder statute includes killing a fetus, but the federal definition does not: "Because federal law defines the term 'human being' to exclude an unborn fetus, [] California Penal Code § 187(a), which criminalizes the unlawful killing of an unborn fetus, is broader than the federal generic definition."

The Court further found section 187(a) "is divisible because it creates distinct crimes for the unlawful killing of a human being and the unlawful killing of a fetus."

And under the modified categorical approach, the Court found the petitioner's conviction qualified as federal murder because it was for killing a human being as defined under federal law. 

8/10/20: "egregious failure to comply with Rule 11(b)(2)" & and an unconstitutional repatriation order

Two criminal decisions from the 9th Circuit today. 

First, in United States v. Fuentes-Galvez, --- F.3d ---, No. 18-10150 (9th Cir. 2020), the Court vacated the defendant's conviction for illegal reentry in light of the magistrate judge’s egregious failure to comply with Fed. R. Crim. P. 11(b)(2)’s requirements of establishing that the defendant’s plea was voluntary. 

Specifically, "the magistrate judge did not engage in direct inquiries regarding force, threats, or promises, nor did he address competence to enter the plea."

"By failing to confirm that he was competent and intelligent to enter the plea at the time of the hearing, the court did not ensure that his plea was knowing and voluntary."

"Under the totality of the circumstances, the lower court’s failure to make further inquiries created a significant enough risk of overlooking potential involuntariness to meet this burden. Finally, the district court’s plain error was sufficiently serious to impinge on the fairness, integrity or public reputation of judicial proceedings.' The voluntariness of a guilty plea is a constitutional requirement under the Due Process Clause of the 5th Amendment."

"In this case, the district court’s plain error prevented the court from creating a record that establishes voluntariness as required by the Due Process Clause and Rule 11. We reverse and remand the conviction."

Second, in United States v. Oriho, --- F.3d ---, No. 19-10291 (9th Cir. 2020), the Court vacated the district court's repatriation-of-funds order on Fifth Amendment grounds. 

"Alexander Oriho, who was indicted on healthcare fraud and money laundering charges, challenges a pre-trial repatriation order entered by the district court as a violation of his Fifth Amendment privilege against self-incrimination."

"To preserve funds for potential forfeiture, the order requires Oriho to repatriate any proceeds of the fraudulent scheme that he may have transferred to any African bank during a three-year period[.]"

The Court "conclude[d] that the challenged order compels Oriho to incriminate himself by personally identifying, and demonstrating his control over, untold amounts of money located in places the government may not presently know about. We also conclude that the district court failed to apply the proper “foregone conclusion” exception test, relieving the government of its obligation to prove its prior knowledge of the incriminating information that may be implicitly communicated by repatriation. The order thereby allows the government to shirk its responsibility to discover its own evidence. The government’s narrow promise of limited use immunity is insufficient to counterbalance these harms." 

"We vacate and remand with instructions to conduct an evidentiary hearing designed to elicit from the government evidence supporting a more limited repatriation order. If the evidence satisfies the proper foregone conclusion test, the district court will also need to ascertain whether the government must offer broader immunity to sufficiently protect Oriho’s Fifth Amendment privilege by ordering strict compliance with 18 U.S.C. §§ 6001–03."

Of note, the Court asserted interlocutory jurisdiction under 28 U.S.C. § 1292(a)(1), which applies to appeals arising from interlocutory orders “granting, continuing, modifying, refusing or dissolving injunctions.”

In rejecting the government's arguments, the Court explained: "We are unpersuaded by the government’s inapt case citations when caselaw teaches that the Fifth Amendment inquiry is unique to each situation and “often depends on the facts and circumstances of the particular case.” Because the facts at bar involve potential communications implicit in the act of transferring funds, the most analogous caselaw relates to information disclosed through the 'act of production[.]'"

"As discussed above, the repatriation order may force Oriho to incriminate himself by revealing the location of bank accounts and potentially numerous other transfers of criminally derived funds that are presently unknown to the government. The government could improperly use that information to support the current charges, bring additional charges, or even to file a new indictment against Oriho for violating other criminal provisions of state or federal law that he might reveal in complying with the repatriation order."

"Only full use immunity would override any compelled violation of the self-incrimination privilege."

The Court also found the district court clearly erred in its application of the foregone conclusion exception, "which allows for circumvention of the self-incrimination privilege if the government already has the information it is seeking to compel."

"The foregone conclusion exception was improperly applied, and the government’s limited use immunity promise is insufficient to alleviate the order’s harms to Oriho’s constitutional rights. We must therefore vacate the district court’s order."
 

 

 

8/6/20: Two great decisions arising from the Bundy standoff with the BLM: one on Brady, the other on the right to self-representation

First, in United States v. Bundy, --- F.3d ---, No. 18-10287 (9th Cir. 2020), the Court affirmed the district court’s judgment dismissing the indictment with prejudice, due to Brady violations.  

The case arose out of the armed standoff between Bundy and his supporters, and federal agents supporting the BLM's efforts to impound Bundy's cattle for his failure to pay grazing fees. 

The very short version of the facts:  During trial the government turned over significant Brady information that it clearly should have turned over prior to trial.  The district court became more and more troubled.  Eventually, it dismissed the case with prejudice.  

The Ninth Circuit affirmed.  The opinion is full of great quotes about Brady.  It really is a must read.  Here are some highlights:

• Whether a jury would ultimately find the evidence convincing and lead to an acquittal is not the measuring rod here. Because no verdict was rendered, the usual “retrospective test, evaluating the strength of the evidence after trial has concluded” is not applicable here.  “[T]he retrospective definition of materiality is appropriate only in the context of appellate review”; thus, “trial prosecutors must disclose favorable information without attempting to predict whether its disclosure might affect the outcome of the trial.”

• Since the new evidence emerged mid-trial, neither the district court (in the first instance) nor we (as a reviewing court) can measure prejudice against all the evidence produced during the trial. Rather, the district court had to assess the relative value of the Egbert 302 and the Law Enforcement Operations Order on the basis of the indictment, the pretrial proceedings, the opening statements, and the evidence introduced up to that point.

• Substantial prejudice alone does not entitle defendants to have their indictments dismissed with prejudice. Nor is it sufficient that the government committed multiple Brady violations. To warrant dismissal of an indictment with prejudice, the government must have engaged in flagrant misconduct in withholding the evidence.

• As a matter of law, the prosecution is “deemed to have knowledge of and access to anything in the possession, custody or control of any federal agency participating in the same investigation of the defendant.”

• To the extent that any government agencies or actors, through their own flagrant misconduct, failed to make known exculpatory information, the flagrant nature of such conduct will be imputed to the prosecution— just as the agencies’ or actors’ Brady violations are imputed to the prosecution. 

• Further, the government is wrong to suggest that flagrant misconduct must be intentional or malicious. Although flagrant misconduct cannot be an “accidental or merely negligent” failure to disclose, the misconduct need not be intentional.  “[R]eckless disregard for the prosecution’s constitutional obligations” is sufficient to give rise to flagrant misconduct. Id.

• The prosecution has an affirmative obligation to learn of potentially favorable evidence and provide it to the defense.

• A court does not have the same degree of familiarity or access to the evidence that a prosecutor has. Hence, it is prosecutors, not courts, that are “presumed to recognize [the] significance” of evidence.   In short, prosecutors cannot hide behind a court’s discovery order to suppress exculpatory evidence.

• At best, the government failed to appreciate the relevance of the evidence. At worst, it sought to handicap the defendants by withholding evidence directly relevant to mens rea. In either circumstance, the government fell well short of its obligations to work toward fairly and faithfully dispensing justice rather than simply notching another win. 

• We do not have to find that dismissal with prejudice is the only remedy the district court could have chosen, because to conclude so would mean that it would have been an abuse of discretion for the district court to have made any other decision.

• What the phrase “no lesser remedial action is available” means is that any lesser sanction will put the defense at a greater disadvantage than it would have faced had the government produced the Brady material in the first place—thereby perpetuating the harm from a violation of a federal constitutional right.

• Accordingly, not only would the Brady documents affect the defendants’ strategy, it might well have altered the prosecution’s strategy. Having “tr[ied] out its case” and “identif[ied] . . . problem area[s],” the government could have “correct[ed] those problems in a retrial.”

• We note the government’s failure to acknowledge and confess any wrongdoing during the course of this case—especially as to material misrepresentations to the district court about the presence of snipers. Rather than accepting responsibility, the government blamed the defense for not requesting more specific information. Even in its motion for reconsideration, the government continued to maintain that it never had an obligation to turn these documents over and that any omission on the government’s part was the fault of the defendants for not doing a better job of showing why this information was relevant. Only on appeal has the government admitted that it should have turned these documents over.

• The district court can dismiss an indictment under its supervisory powers “(1) to implement a remedy for the violation of a recognized statutory or constitutional right; (2) to preserve judicial integrity by ensuring that a conviction rests on appropriate considerations validly before a jury; and (3) to deter future illegal conduct.”  These prerequisites are met here. 

Next, in United States v. Engel, --- F.3d ---, No. 18-10293 (9th Cir. 2020), the Court vacated the defendant's convictions, finding structural error in the district court's termination of his right to represent himself during trial. 

This case also arose from the Bundy standoff.  Engel was one of Bundy's supporters.  He was convicted of obstructing justice and interstate travel in aid of extortion. 

The district court initially granted Engel's request to represent himself.  But on the twenty-first day of trial, the court terminated his self-representation based on what it viewed as improper questioning of a witness about irrelevant evidence. The court directed standby counsel to conduct questioning for the rest of the trial day.  It then allowed Engel to represent himself again for closing argument. 

In vacating his convictions, the Ninth Circuit explained, "the right to self-representation may not be terminated even though a defendant “file[s] numerous nonsensical pleadings, [is] uncooperative at times,” insists “on wearing [] prison garb in front of the jury,” and confusingly tells the jury that “he want[s] the jury to ‘enter a guilty plea’” during opening statements. Similarly, a defendant’s self-representation cannot be revoked merely because the defendant lacks familiarity “with the rules of evidence or the specifics of criminal procedure.”"

The Court continued:  "the facts here do not support the district court’s termination of Engel’s right to represent himself. . . . Engel was not defiant and did not engage in blatantly outrageous conduct, such as threatening a juror or taunting the district judge. To the contrary, Engel merely asked a question prejudicial to the government. When the government objected, Engel remained calm and ultimately acquiesced in the court’s decision to revoke his right to self-representation. He was never removed from the courtroom, nor did he need to be removed."

"[E]even though the district court reinstated Engel’s right to represent himself before closing arguments, Engel was precluded from cross-examining government witnesses, violating the Sixth Amendment."

"We conclude that the district court’s termination of Engel’s right to represent himself violated the Sixth Amendment. A violation of a defendant’s Sixth Amendment right to self-representation is structural error. Thus, we must vacate Engel’s criminal conviction and remand for a new trial."

 

 

8/13/20: Interesting vagueness decision

In United States v. Kuzma, --- F.3d ---, No. 18-10042 (9th Cir. 2020), the Court affirmed in part the defendant's convictions for possession of a machinegun (18 U.S.C. § 922(o)) and possession of an unregistered machinegun (26 U.S.C. § 5861(d)).

The opinion focused on the defendant's facial vagueness challenge to the definition of a machinegun. 

Long story very short, the Court held the definition was not unconstitutionally vague:  "By focusing on whether a device has a specific configuration of objective features that, absent a minor defect, would give it the capacity to shoot automatically, the phrase a “weapon which . . . is designed to shoot . . . automatically” provides both sufficient notice as to what is prohibited and sufficient guidance to prevent against arbitrary enforcement."

For me, the most important part of the opinion comes in a footnote: "The facial invalidations in these three cases do, however, refute the Government’s assertion that, outside the First Amendment context, only as-applied vagueness challenges may be considered."

The three cases are Johnson, Davis, and Dimaya.  This footnote is a longtime coming.  Use it to bring facial challenges.

Finally, it is worth noting the Court agreed the convictions were  multiplicitous:

Here, the Government concedes that § 922(o) does not require proof of any element that is not also required under § 5861(d). The former statute requires possession of an item that qualifies as a machinegun with knowledge of the essential characteristics that make that item a machinegun, see 18 U.S.C. §§ 922(o), 924(a)(2), and the latter statute requires all of those same elements (plus an additional element concerning the lack of registration), see 26 U.S.C. §§ 5845(a)(6), 5845(b), 5861(d), 5871. The § 922(o) charge is therefore a lesser-included offense of the § 5861(d) charge. The Government further concedes that neither statute (nor any other provision of law) indicates that Congress authorized cumulative punishments to be imposed simultaneously under both provisions. Because “[o]ne of the convictions, as well as its concurrent sentence, is unauthorized punishment,” one of them must be vacated.