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.