12/31/20: Great 4th Amend case to end the year (with good stuff on acceptance also)

 In United States v. Dixon, --- F.3d ---, No. 19-10112 (9th Cir. 2020), the Court vacated the district court’s denial of a motion to suppress evidence resulting from a vehicle search conducted pursuant to a 4th waiver supervised release condition. 

The Court also held that the district court erred in denying Mr. Dixon's post-trial request for a 2-level acceptance of responsibility reduction.  

Beginning with the search issue, the Court applied property-based trespass theory and held that a Fourth Amendment search occurs when an officer physically inserts a key into the lock of a vehicle for the purpose of obtaining information. It further concluded the contrary decision in United States v. $109,179 in U.S. Currency, 228 F.3d 1080 (9th Cir. 2000), was clearly irreconcilable with the Supreme Court’s property-based Fourth Amendment jurisprudence in Jones and Florida v. Jardines, 569 U.S. 1 (2013).

Although Mr. Dixon was subject to a 4th waiver as a condition of supervised release, this condition only applies when the individual subject to it “exhibit[s] a sufficiently strong connection to [the property in question] to demonstrate ‘control’ over it.” In other words, "before this condition authorizes a warrantless search, officers must have a sufficient 'degree of knowledge' that the search condition applies to the place or object to be searched."

The Court further held, "before conducting a warrantless search of a vehicle pursuant to a supervised release condition, law enforcement must have probable cause to believe that the supervisee owns or controls the vehicle to be searched."

Here, "the police crossed that knowledge threshold only when they inserted the key that Dixon had dropped into the car lock, thereby confirming that he exercised control over the minivan."  As such, the initial search (inserting the key) was done without the requisite probable cause thus tainting the subsequent search of the car.  

As to acceptance of responsibility, the Court explained, a defendant “may remain silent in respect to relevant conduct beyond the offense of conviction without affecting his ability to obtain a reduction under this subsection.” Thus, the failure to admit to conduct that the jury did not convict on does not necessarily preclude acceptance of responsibility.

"Given these principles, Dixon was at least eligible for the two-point acceptance reduction because he accepted responsibility for all conduct for which he was convicted. Dixon argues that from the beginning, even before he was indicted, he admitted that he possessed the controlled substances found on his person at Bayview Station, but contested that he possessed these drugs with an intent to distribute—the charged offense on which the jury hung. In other words, the jury convicted Dixon of only the lesser included offense of simple possession, for which he had consistently admitted responsibility. The Guidelines thus permitted the district court to conclude that Dixon had accepted responsibility for his criminal conduct."

12/29/20: Aggravated identity theft case

 In United States v. Harris, --- F.3d ---, No. 19-10006 (9th Cir. 2020), the Court affirmed convictions for aggravated identity theft under 18 U.S.C. § 1028A.

Ms. Harris was the owner of a business that provided therapeutic services.  She fraudulently billed a government health care program for speech therapy services by, among other things, "submitting claims to TRICARE that falsely identified Kara Spheeris, a speech pathologist who worked for Harris Therapy, as the rendering provider for dates on which Spheeris provided no services."

The issue on appeal was whether "Harris used Spheeris’s name and NPI number 'during and in relation to' the commission of wire fraud."

The Court held she did: 

"By inputting Spheeris’s name and NPI number in the forms, Harris employed or used Spheeris’s identification. And that use was 'during and in relation' to the commission of wire fraud, as Harris used Spheeris’s 'identifying information to fashion a fraudulent submission out of whole cloth.' Id. This portion of Harris’s scheme could not have succeeded otherwise, as Spheeris was not a participant in it. Harris did not merely inflate the scope of services rendered during an otherwise legitimate appointment; Harris manufactured entire appointments that never occurred. Indeed, Spheeris had never rendered any services to the patients listed on the claim forms. Like one who fraudulently uses another’s name and physical credit card or credit card number, Harris fraudulently used Spheeris’s name and her NPI number. For these reasons, we hold that Harris’s actions constituted 'use' under the aggravated identity theft statute."

12/21/20: how to appeal a magistrate judge’s denial of bail pending the conclusion of an extradition proceeding

In United States v. Al-Nouri, --- F.3d ---, No. 20-10317 (9th Cir. 2020), the Court explained that a magistrate judge’s denial of bail pending the conclusion of an extradition proceeding could not be directly appealed to the Ninth Circuit. 

Instead, "[t]o the extent a magistrate judge has been assigned the Article III power to make bail decisions, either implicitly by custom or expressly by local rules, such decisions may be reviewed de novo by the district court upon application by a party . . . . The district court’s decision would then be a final decision for purposes of § 1291, and is appealable to this court. Further, a potential extraditee may appeal a denial of bail by way of a petition for writ of habeas corpus."

So there you have it.  Go to the district court first.  

12/15/20: Denial of sentence reduction affirmed

 In United States v. Hardiman, --- F.3d ---, No. 16-50422 (9th Cir. 2020), the Court affirmed the district court's denial of Mr. Hardiman's motions under 28 U.S.C. § 2255 and 18 U.S.C. § 3582(c)(2).

The motions were based on United States v. Pimentel-Lopez, 859 F.3d 1134 (9th Cir. 2016), which held that a district court is not entitled to make a drug quantity finding in excess of that found by the jury in a special verdict.

Mr. Hardiman argued that the district court erred at sentencing when it made a drug quantity finding in excess of that found by the jury's special verdict.  

The Ninth Circuit held that Pimentel-Lopez does not apply retroactively to cases on collateral review under Teague v. Lane, 489 U.S. 288, 310 (1989) (plurality opinion).  Thus, the 2255 was properly denied. 

Mr. Hardiman also filed a § 3582(c)(2) motion to reduce his sentence.  The Court held that his arguments about Pimentel-Lopez “were not affected by” Amendment 782 and therefore are “outside the scope of the proceeding authorized by § 3582(c)(2).” Dillon, 560 U.S. at 831.

12/8/20: Two criminal decisions today

 First, in United States v. Gainza, --- F.3d ---, No. 19-10430 (9th Cir. 2020), the Court vacated the defendants' sentences for conspiracy to possess unauthorized access devices, access device fraud, and aggravated identity theft.

The case arose from the installation of cameras and skimmers at ATMs.

The Court found that the district court clearly erred in calculating loss based on the total number of people who visited the ATMs at the relevant times: "The government offered insufficient evidence that the defendants obtained or used 852 account numbers. And while the government showed how many people used the ATMs while the skimmers were installed, it did not provide any evidence of the skimmer success rate, either for these transactions or even for hypothetical transactions. Without this evidence, the record cannot support a finding that Gainza and Gabriele-Plage obtained information 'that can be used to initiate a transfer of funds' from each ATM customer. 18 U.S.C. § 1029(e)(1)."

The Court explained: "And while it is true that the sentencing judge “need only make a reasonable estimate of the loss,” U.S.S.G. § 2B1.1 cmt. n.3(C), that estimate must be based on facts, not conjecture. This is not to say that the estimate requires mathematical precision; rather, a “reasonable estimate” can be derived from a reasonable evaluation of the evidence."

Second, in United States v. Sineneng-Smith, --- F.3d ---, No. 15-10614 (9th Cir. 2020), the Court affirmed the defendant's convictions on two counts of encouraging and inducing an alien to remain in the United States for the purposes of financial gain (8 U.S.C. §§ 1324(a)(1)(A)(iv) and 1324(a)(1)(B)(i)).

If the case sounds familiar, it is.  This was the case where the Ninth Circuit held the statute unconstitutional under the First Amendment.  The Supreme Court vacated on other grounds (because the issue was not raised by the parties) and remanded “for reconsideration shorn of the overbreadth inquiry.” 

On remand, the panel rejected the defendant's various claims.  But it "express[ed] no opinion about whether Subsection (A)(iv) is facially overbroad in violation of the First Amendment." So this is still an open issue. 

12/3/20: En banc decision on venue

 Another en banc decision today.  

In United States v. Lozoya, --- F.3d ---, No. 17-50336 (9th Cir. 2020), the en banc Court affirmed a conviction for misdemeanor assault within the special aircraft jurisdiction of the United States.  

The defendant committed the assault on a commercial flight from Minneapolis to Los Angeles, and argued venue in the Central District of California was improper because the assault did not occur in airspace directly above the Central District. 

Rejecting this argument, the en banc majority held that venue for in-flight federal offenses is proper in the district where a plane lands. In reaching this conclusion, the majority found that the applicable venue provision was 18 U.S.C. § 3237(a), which provides: "[a]ny offense involving . . . transportation in interstate or foreign commerce . . . is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may be inquired of and prosecuted in any district from, through, or into which such commerce . . . moves."

The dissent responded: "The majority holds that venue for this crime is proper in any district the airplane traveled from, through, or into, meaning that the trial for an assault on a cross-country flight can be held in any flyover state. See Maj. at 12 n.8 (acknowledging that 18 U.S.C. § 3237(a) “theoretically allows venue not just in the landing district, but also the takeoff district as well as the flyover districts”). Congress did not direct such an absurd result; rather, under the correct venue statute, the trial for an assault on a cross-country flight can be held only where the defendant “is arrested or is first brought,” or where the defendant resides. 18 U.S.C. § 3238"

12/2/20: En banc decision governing drug prosecutions

For almost a year, we have been waiting for United States v. Collazo, --- F.3d --- (9th Cir. 2020) (en banc).   It landed today.

Collazo addressed the government's burden of proof in prosecutions for conspiracy to distribute (and substantive distribution of) controlled substances under 21 U.S.C. §§ 846 and 841.  

The main question was whether the government needed to prove the defendant(s) knew the drug type and quantity involved: "We must [] determine whether Congress intended to require proof of a defendant’s mens rea with respect to the requisite drug type and quantity for the penalties in § 841(b)(1)(A)–(B) to apply."

The en banc majority said no. 

Here are a few key quotes (with my thoughts after):

For purposes of § 846, "in order to convict a defendant of conspiracy, the government must prove beyond a reasonable doubt that (1) the defendant agreed with another person that some member of the conspiracy would commit the relevant underlying offense (here § 841(a)), and that (2) the defendant had the requisite intent necessary for a conviction of the underlying offense."

But "the structure of § 841(a)–(b) compels the conclusion that Congress did not intend to require the government to prove a defendant’s knowledge with respect to the drug type or quantity."

"In sum, we conclude that in order to obtain a particular sentence under § 841(b)(1)(A)(viii) and § 841(b)(1)(B)(i) for a violation of § 841(a), the government must prove beyond a reasonable doubt the specific type and the quantity of substance involved in the offense, but not the defendant’s knowledge of (or intent) with respect to that type and quantity."

"We have established in Section II.A, supra, that to convict the defendants of conspiracy under § 846 in this case, the government must prove beyond a reasonable doubt that each defendant agreed with another person that some member of the conspiracy would commit a § 841(a) offense, and that each defendant had the requisite intent necessary for a § 841(a) conviction. We have also established in Section II.B, supra, that the requisite intent necessary for a § 841(a) conviction (and for the imposition of the penalties specified in § 841(b)(1)(A)–(B)) does not include knowledge of the relevant drug type or quantity. This concludes our explication of the elements of a § 846 conspiracy to commit a violation of § 841(a), and the imposition of penalties under § 841(b)(1)."

Further "we conclude that to obtain a conviction and a particular sentence for conspiracy to distribute controlled substances under § 846, the government must prove only that the defendant’s mental state was the same as if the defendant had been charged with the underlying offense. Applying that principle here, the government need not prove the defendant’s knowledge of the drug type and quantity under § 841(b)."

"As we have explained, a defendant convicted of conspiracy under § 846 is subject to a penalty under § 841(b)(1)(A)–(B) if the government has proven beyond a reasonable doubt that the underlying § 841(a)(1) offense involved the drug type and quantity set forth in § 841(b)(1)(A)–(B). The government does not have to prove that the defendant had any knowledge or intent with respect to those facts."

As I read Collazo, the main takeaways are:

1. For both drug conspiracy and substantive offenses, the government does not need to prove any defendant knew the drug type or quantity involved. 

2. As result of point 1, the court does not need to instruct the jury that any knowledge is required for a drug type / quantity finding.   Instead, so long as the government proves the fact of drug type and quantity involved, that is enough to establish liability for that type / amount.  Accordingly, courts are no longer going to give jury instructions that require the jury to determine "whether the government proved beyond a reasonable doubt that the amount of [the specified drug] was reasonably foreseeable to [each defendant] or fell within the scope of his particular agreement."  The new instruction will simply require the government to prove the offense involved the type and quantity alleged with no mens rea component. 

The dissent is compelling.  This issue is likely headed for the SCOTUS.