12/27/21: Good minor role decision

 In United States v. Rodriguez, --- Fed. App'x ---, No. 20-50006 (9th Cir. 2021), the Court vacated the sentence, finding the district court erred in denying minor role. 

The Court discussed the relevant factors in detail. 

Regarding the first factor, "[t]he district court provided that, '[i]f you say, well, she didn’t know . . . who was at the top of this drug organization, she had no idea where the methamphetamine came from, she didn’t know all the players involved, that type of analysis would describe every importer of drugs into the United States.' Even if true in some cases, Diaz teaches that this exact fact is indicative of a minor role in the crime. Id. The fact that Rodriguez “was kept in the dark” is an important consideration under Diaz that weighs in favor of a minor role reduction. As a result, the district court abused its discretion in applying the first factor."

Regarding the second factor,  "[t]he district court explained that while Rodriguez 'didn’t come up with the plan,' she '[o]f course” was part of the plan. In light of Diaz, as well as the plain wording of application note 3(C)(ii), the district court abused its discretion in reaching this conclusion. Participating in the plan is not participating in the planning of the plan. Every person involved in the crime participates in the plan, but minor participants do not generally participate in the planning of the crime."

"During the sentencing hearing [] the district court suggested that the fact a defendant did not know the type and amount of drugs he or she was transporting should only weigh in favor of the reduction if the defendant actually tried to investigate that fact for him or herself . . . Such an inquiry negates the dictate in Diaz that this lack of knowledge weighs in favor of the minor role reduction, as well as the purpose of the 2015 amendments to the section 3B1.2 commentary of broadening the reduction’s application. As the district court recognized, it would be very atypical for a courier to ask such questions, especially given the disparity of power between a drug courier and someone with such knowledge. To the extent the district court imposed a duty of inquiry upon Rodriguez in connection with the application of the second factor of note 3(C), this too was an abuse of discretion."

Regarding the fifth factor, “the degree to which the defendant stood to benefit from the criminal activity, U.S.S.G. § 3B1.2 cmt. n.3(C)(v), the district court concluded that this factor weighed against the reduction since '$8,000 is not an insubstantial amount for importers of drugs' . . . . The district court appeared to conclude that the comparison should be between the amount received and the amount the court thinks a courier would believe is a lot of money. This proposed comparison is purely speculative. The more concrete comparison is between the payment amount and the monetary value of the cargo, or some other scale that places the payment in relation to the worth of, or risk to, the enterprise."

There is a partial dissent on one of the factors.  

12/6/21: Case on life sentences for Juveniles

 In United States v. Briones, --- F.4th ---, No. 16-10150 (9th Cir. 2021), the Court affirmed the district court’s imposition of life without possibility of parole for crimes committed by Riley Briones, Jr. while a juvenile.

If you have a life-case involving a juvi, this opinion is a must read.  The Court held that the district court properly considered the relevant factors and did not abuse its discretion in imposing a life sentence on Briones. 

11/29/21: Case on exhaustion requirement for 1326(d)

In United States v. De La Mora-Cobian, --- F.4th ---, No. 20-30187 (9th Cir. 2021), the Court affirmed the district court’s order denying a motion to dismiss the indictment for illegal reentry under 8 U.S.C. § 1326 on the basis that De La Mora-Cobian was precluded from collaterally attacking the underlying order of removal.

"We hold under the statutory framework enacted by Congress that an alien who raises a claim for asylum during expedited removal proceedings is provided with an administrative remedy that must be exhausted before that order of removal can be collaterally challenged in a subsequent criminal prosecution for reentering the United States."

"De La Mora-Cobian initiated an application for asylum, received a credible fear interview, and had the opportunity to appeal the adverse credible fear determination to an immigration judge—an administrative remedy he failed to exhaust. While Congress has generally limited administrative challenge to expedited removal orders, see 8 U.S.C. § 1225(b)(1)(C), Congress did allow administrative review of the denial of an asylum claim as part of the expedited removal process, see id. § 1225(b)(1)(B)(iii)(III). De La Mora-Cobian chose to waive this administrative review of his asylum claim, and such a failure to exhaust the statutory remedy constitutes a bar to collateral review of the deportation order now."

11/26/21: Case on special conditions of supervised release

In United States v. Reyes, --- F.4th --- No. 20-50016 (9th Cir. 2021), the Court vacated the supervised release portion of the sentence, affirmed the custodial portion, and remanded.  

This is a SDCA case.  At sentencing, without notice, the district court imposed a very broad Fourth waiver (search condition) that was not on the list of mandatory or discretionary conditions.  Reyes objected, but was cut off by the judge. 

On appeal, the Court reaffirmed that, under United States v. Wise, 391 F.3d 1027 (9th Cir. 2004), when a particular “condition of supervised release is not on the list of mandatory or discretionary conditions in the sentencing guidelines, notice is required before it is imposed, so that counsel and the defendant will have the opportunity to address personally its appropriateness.”  Here, because there was no notice, the search condition was improper. 

In reaching this conclusion, the Court rejected the government's arguments that plain-error review applied and that Wise had been overruled.  The Court sent the case back to the district judge on a limited remand to redo the conditions of supervised release. 

11/23/21: Big case on sentencing law

In United States v. Franklin, --- F.4th ---, No. 20-30136 (9th Cir. 2021), the Court affirmed the sentence for possession of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i)–(ii) and 2, and robbery affecting interstate commerce (Hobbs Act robbery) in violation of 18 U.S.C. § 1951(a).

This case is a must read for anyone practicing federal criminal law.  It focuses on the minimal-indicia-of-reliability doctrine, which governs the type of information that district judges can rely on at sentencing. 

It is a lengthy opinion with a concurrence.  

Here are the most relevant passages:

• Mr. Franklin contends that the district court violated his due-process rights at sentencing by relying on his codefendants’ unsworn hearsay statements, which accused him of trying to influence their testimony, in imposing the obstruction-of-justice enhancement. Finding the appropriate standard of review unclear from our precedents, we take this opportunity to clarify it. Under the correct standard, Mr. Franklin’s challenge fails.

• Hearsay is generally admissible in sentencing hearings, as neither the Confrontation Clause nor the Federal Rules of Evidence apply to such hearings. United States v. Petty, Nevertheless, “[d]ue process requires that some minimal indicia of reliability accompany a hearsay statement” introduced at sentencing.  In particular, “relying on accomplice hearsay without adequate indicia of reliability violate[s]” due process. The defendant typically has the burden to show that disputed hearsay is false or unreliable. 

• But a statement by a coconspirator that inculpates the defendant “is inherently unreliable.”  We presume such statements unreliable because the coconspirator “may very well have been hoping to curry favor with law enforcement officials by implicating his accomplice.” 

• Whether the government rebuts that presumption turns on whether the coconspirator’s statements have independent corroboration. That corroboration may come from trial testimony, the defendant’s own testimony, or even from other codefendants’ hearsay accounts.

• Reviewing our cases, we find that we have not yet clearly enunciated the standard by which we review a district court’s determination of whether coconspirator hearsay is unreliable.

• We conclude that there are two distinct questions that we answer in examining a hearsay statement at sentencing: (1) whether the statement is “procedurally reliable” and (2) whether the statement is “substantively reliable.” This is a disjunctive test: If we answer either question in the affirmative, then the statement may be considered at sentencing. 

• First, procedural reliability. We ask whether there are sufficient procedural protections so that the defendant does not have to “prove a negative” in the face of government allegations. This is an essentially legal question because whether the defendant is in that position “implicate[s] constitutional rights” and requires us “to exercise judgment about the values that animate legal principles. Generally, if the government supports the hearsay statements with extrinsic evidence that the defendant can challenge on cross-examination, then we have found the process to be adequate to ensure that the defendant is not sentenced on the basis of unreliable or false information.  The district court may then consider the hearsay statement under the rubric of procedural reliability after finding the extrinsic evidence to sufficiently corroborate the hearsay statement.

• Second, if the government offers no corroboration of a hearsay statement that the defendant can challenge at sentencing through the normal adversarial process, we proceed to the substantive inquiry. As our cases show, substantive indicia of reliability can be enough to safeguard the defendant’s right not to be sentenced on the basis of unreliable or false information. Thus, hearsay from a source that is self-demonstrably reliable is permissible on its own. See Chee, 110 F.3d at 1492. And even if the hearsay is from a presumptively unreliable source, such as a coconspirator, the government can prove its reliability by exhibiting other, independently obtained, consistent hearsay statements— even other presumptively unreliable statements, as in Berry. But, unlike procedural reliability, substantive reliability is an essentially factual issue. It requires judging whether a statement is probably truthful in light of all the circumstances—that is, “the application of the fact-finding tribunal’s experience with the mainsprings of human conduct.”

• The upshot is this. A determination of procedural reliability—that the hearsay in question does not put the burden on the defendant to prove a negative and that the defendant has adequate opportunity to confront corroborative evidence of the hearsay—is an essentially legal question that we review de novo. A determination of substantive reliability—whether hearsay statements admitted at sentencing are from reliable sources or are consistent enough with one another to indicate their probable truth—is an essentially factual question that we review for clear error. And so long as each hearsay statement offered by the government at sentencing is either procedurally reliable or substantively reliable, due process is not offended.

Applying these standards, the Court found the subject evidence was both procedurally and substantively reliable.  

Judge Berzon concurred because she "disagree[d] that we have developed a disjunctive test under which a hearsay statement may form the basis for a defendant’s sentence if it is either “procedurally reliable” or “substantively reliable.”  I read our cases as requiring, at a minimum, "substantive reliability."

11/16/21: No due process right to use medical marijuana

In United States v. Langley, --- F.4th ---, No. 20-50119 (9th Cir. 2021), the Court affirmed the district court’s denial of Richard Langley’s motion to amend the conditions of his supervised release to permit him to use medical marijuana as allowed by California state law.

The case is not really about marijuana, but instead the rules of prior binding authority. 

Langley argued he has a fundamental constitutional right under the Fourteenth Amendment’s Due Process Clause to use medical marijuana. The Court disagreed, holding it was bound by Raich v. Gonzales, 500 F.3d 8850 (9th Cir. 2007), which rejected the identical substantive due process claim.

Langley argues that we are no longer bound by Raich’s conclusion. He points out that Raich acknowledged that widespread legal recognition of a practice can sometimes provide additional evidence that a right is fundamental, id. at 865–66 (discussing Lawrence v. Texas, 439 U.S. 558, 571–72 (2003)), and that 36 states and the District of Columbia no longer criminalize the use of marijuana for medical purposes. But this argument misunderstands our rule that “a published decision of this court constitutes binding authority which must be followed unless and until overruled by a body competent to do so,” Gonzalez v. Arizona, 677 F.3d 383, 389 n.4 (9th Cir. 2012) (cleaned up), aff’d sub nom. Arizona v. Inter Tribal Council of Arizona, Inc., 570 U.S. 1 (2013). Raich’s conclusion that medical marijuana use is not “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty,” 500 F.3d at 864, is binding on us until it is overturned by a higher authority. Even if state laws decriminalizing marijuana use could constitute additional evidence under the Glucksberg test, we are bound by our holding in Raich until such time as a higher authority determines that there is a fundamental right to medical marijuana use that we are “blind to” today, id. at 866. See Wilson v. Lynch, 835 F.3d 1083, 1098 n.9 (9th Cir. 2016) (holding that a substantive due process claim based on a fundamental right to use medical marijuana is “foreclosed by our decision in Raich”). 

11/15/21: What constitutes "custody" for purposes of 2254

In Munoz v. Smith, --- F.4th ---, No. 20-16327 (9th Cir. 2021), the Court held that the district court lacked jurisdiction to adjudicate the subject petition under 28 U.S.C. § 2254.

As a result of a prior, Nevada sex offense, Munoz was on lifetime supervision, which consisted of the following conditions: (1) a $30 monthly fee to defray the costs of his supervision; (2) electronic monitoring; and (3) a requirement that he may reside at a location only if the residence has been approved by his parole officer, and that he keep his parole officer informed of his current address.

Munoz filed a 2254 arguing that his lifetime supervision conditions violated his due process rights and the Ex Post Facto Clause.

The Court held the district court did not have jurisdiction over the petition because Munoz was no longer in custody.  

"A person may seek federal habeas relief if he is 'in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.' 28 U.S.C. § 2254(a). . .  . We hold that under our precedents and on this record, the[] conditions do not severely and immediately restrain the petitioner’s physical liberty. Petitioner is therefore not challenging his 'custody,' and his claims are not cognizable in federal habeas."

"On remand, the district court may determine whether to allow Munoz, upon a proper showing, leave to file an amended habeas petition that could secure jurisdiction under § 2254. In addition, or alternatively, the district court may consider whether it would be appropriate to construe [Munoz’s] petition for habeas corpus to plead a cause of action under § 1983 after notifying and obtaining informed consent from Munoz."

11/8/21: Criminal forfeiture case

In United States v. Prasad, --- F.4th ---, No. 19-10454 (9th Cir. 2021), the Court affirmed the district court’s forfeiture order under 18 U.S.C. § 982(a)(6)(A)(ii) in the amount of $1,193,440.87, in a case in which a jury convicted Abhijit Prasad of twenty-one counts of visa fraud, in violation of 18 U.S.C. § 1546(a), and two counts of aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1).

The case is about how to measure the forfeitable amount under the statute.  As a result of the visa fraud, Prasad's company was paid $1,193,440.87 but most of that money was then paid to the visa recipients as wages for their legitimate work.  Prasad's profit from the scheme was $238,688.17. 

• The government argued that $1,193,440.87 “represent[s] the amount of proceeds Prasad obtained as a result of the criminal conduct for which he was convicted.” Prasad opposed the government’s motion but did not dispute that Maremarks received $1,193,440.87 from the end-clients for the work the H-1B beneficiaries performed. Instead, Prasad argued that the most the court could order him to forfeit was $238,688.17, which was the estimated amount he kept after paying the beneficiary employees for the work they performed for the end-clients.5 The district court disagreed and ordered forfeiture in the full amount the government requested. Prasad filed a timely notice of appeal, see Fed. R. App. P. 4(b)(1), and we have jurisdiction pursuant to 28 U.S.C. § 1291.

• Under our precedent, it does not matter that Prasad paid portions of the $1,193,440.87 to the H-1B beneficiaries and at that point no longer possessed those portions.

• Thus, 18 U.S.C. § 982(a)(6)(A)(ii)(I) only requires that the government show that the defendant had possession of the property at some point to establish that the defendant “obtained” it. See id. In sum, because Prasad controlled the $1,193,440.87, he possessed it and so necessarily had obtained it. We therefore conclude that Prasad “obtained” the $1,193,440.87 that the end-clients paid to Maremarks.

• Considering the term “proceeds” in the context of the forfeiture statute, the statute’s punitive purpose, and our prior construction of virtually identical criminal forfeiture provisions, we conclude that the term “proceeds” extends to receipts and is not limited to profit.

• In sum, while the term “proceeds” is ambiguous on its own, we must look to the entire text of a statutory provision when interpreting the meaning of a particular term. Here, placing “proceeds” in its proper context by interpreting it in light of the term “obtained” and 21 U.S.C. § 853(c) (as incorporated by 18 U.S.C. § 982(b)) supports that “proceeds” under 18 U.S.C. § 982(a)(6)(A)(ii)(I) denotes receipts.

• In sum, we have consistently held that “proceeds” means receipts when used in criminal forfeiture provisions that are materially similar to 18 U.S.C. § 982(a)(6)(A)(ii)(I), specifically 18 U.S.C. § 982(a)(2), 18 U.S.C. § 1963(a)(3), and 21 U.S.C. § 853(a)(1). We see no reason to make § 982(a)(6)(A)(ii)(I) an outlier, especially considering the statutes’ nearly identical language and shared punitive purpose. United States v. Novak, 476 F.3d 1041, 1051 (9th Cir. 2007) (en banc) (“[C]ourts generally interpret similar language in different statutes in a like manner when the two statutes address a similar subject matter.” (citations omitted)).

• The term “proceeds” under 18 U.S.C. § 982(a)(6)(A)(ii)(I) could mean either profits or receipts. However, in the context of the entire text of the provision, the punitive purpose of 18 U.S.C. § 982, and our prior construction of substantially similar criminal forfeiture provisions, we conclude that the better construction is that “proceeds” means receipts. The term “proceeds” is not limited to Prasad’s profits. Rather, Prasad must forfeit the receipts he “obtained directly or indirectly from” his commission of visa fraud. 18 U.S.C. § 982(a)(6)(A)(ii)(I). Thus, the district court did not err by including the portions of the $1,193,440.87 that Prasad received from the end clients and paid the H-1B beneficiaries as wages in its calculation of the “proceeds” subject to forfeiture.  

10/29/21: 8 U.S.C. § 1325(a) is a regulatory offense, and no presumption in favor of scienter applies

In United States v. Rizo-Rizo, --- F.4th ---, No. 20-50172 (9th Cir. 2021), the Court affirmed a conviction for attempted illegal entry in violation of 8 U.S.C. § 1325(a)(1).  

The Court held: "8 U.S.C. § 1325(a) is a regulatory offense, and no presumption in favor of scienter applies.We thus conclude that Congress’s silence as to knowledge of alienage means what such silence in a regulatory offense usually means. We therefore hold that knowledge of alienage is not an element of § 1325(a)."

10/21/21: Case on making false entries in bank records -18 U.S.C. § 1005

In United States v. Tat, --- F.4th ---, No. 19-50034 (9th Cir. 2021), the Court reversed a conviction on one count of making a false entry in bank records in violation of 18 U.S.C. § 1005 (Count 3), affirmed a conviction on a second count of the same offense (Count 2), and remanded for resentencing.

The case involved Tat aiding a money-laundering scheme that used cashier’s checks while she managed a branch of East West Bank.

The analysis focused on the fact that the bank entry for Count 3 was NOT literally false.  The entry involved an actual customer withdrawal. 

Cashier’s checks—unlike loans—cannot be issued until the bank receives funds. The bank would know that a real customer drew a real cashier’s check from the undisputed balance of her real account. How one chooses to “dispose of the fund[s] so obtained should, in the absence of misrepresentation on h[er] part, be of no interest to the bank, and certainly not to the criminal law.”

Even if Defendant made the entries with an intent to deceive bank officials, that satisfies only one of §1005’s three elements. Wolf, 820 F.2d at 1504. An intent to deceive is the offense’s mens rea, not the entire offense. It is no answer that the cashier’s check was related to a money laundering scheme; § 1956—not § 1005—outlaws money laundering. Accurate records reflecting a customer’s purchase of a cashier’s check from her bank account are not false entries under § 1005 solely because that check has a nexus to money laundering. We thus reverse Defendant’s conviction on Count 3. 

10/13/21: Case on appellate waivers

In United States v. Goodall, --- F.4th ---, No. 18-10004 (9th Cir. 2021), the Court dismissed Goodall’s appeal seeking to vacate his conviction and sentence for Hobbs Act conspiracy. 

The government conceded that Hobbs Act conspiracy is not a “crime of violence” under the “elements clause,” but argued that Goodall’s appellate waiver barred his challenge.

The Court agreed.  The introduction to the opinion tells the story. 

Facing potentially more than seven decades in prison for his role in a string of armed robberies, Eric Goodall struck a plea deal. He pleaded guilty to two counts of conspiracy to commit Hobbs Act robbery (18 U.S.C. § 1951(a)) and one count of brandishing a firearm during and in relation to a crime of violence (18 U.S.C. § 924(c)(3)). He also accepted a 20-year sentencing recommendation and agreed to waive his right to appeal his conviction or sentence. The district court imposed an even shorter sentence of 14 years’ imprisonment. About a year and a half after his sentencing, the Supreme Court in United States v. Davis, 139 S. Ct. 2319 (2019), held that a conspiracy to commit Hobbs Act robbery cannot be a crime of violence under the residual clause of 18 U.S.C. § 924(c)(3). 

Goodall now tries to wriggle his way out of his plea deal. Despite his appellate waiver, Goodall seeks to vacate his § 924(c) conviction, arguing that he could not have knowingly waived an appellate issue not yet in existence at the time of his plea deal. He also asks this court to expand our “illegal sentence” exception to an appellate waiver and carve out yet another exemption for an “illegal conviction.” See United States v. Torres, 828 F.3d 1113, 1124–25 (9th Cir. 2016). 

We uphold the appellate waiver in Goodall’s plea agreement and thus dismiss his appeal. By waiving his appellate rights, Goodall knowingly and voluntarily assumed the risk that the law might change in his favor. We also decline to expand the “illegal sentence” exception. Our decision in Torres carefully circumscribed the definition of “illegal sentence,” and its reasoning does not apply to purportedly “illegal convictions.” 

10/8/21: Important bank fraud decision today

 In United States v. Yates, --- F.4th ---, No. 18-30183 (9th Cir. 2021), a divided Court vacated the convictions of two bank executives for conspiracy to commit bank fraud (18 U.S.C. § 1349) and 12 counts of making a false bank entry (18 U.S.C. § 1005).  

This is a lengthy and interesting opinion, delving deep into issues regarding the legal validity of the government's theories of prosecution.  I include some of the most relevant language below. 

The accurate-information theory is legally insufficient. There is no cognizable property interest in “the ethereal right to accurate information.” United States v. Sadler, 750 F.3d 585, 591 (6th Cir. 2014). Although a property right in trade secrets or confidential business information can constitute “something of value,” Carpenter v. United States, 484 U.S. 19, 26 (1987), “the right to make an informed business decision” and the “intangible right to make an informed lending decision” cannot, United States v. Lewis, 67 F.3d 225, 233 (9th Cir. 1995).

Recognizing accurate information as property would transform all deception into fraud. By definition, deception entails depriving the victim of accurate information about the subject of the deception. But “[i]ntent to deceive and intent to defraud are not synonymous.” United States v. Yermian, 468 U.S. 63, 73 n.12 (1984) (quoting United States v. Godwin, 566 F.2d 975, 976 (5th Cir. 1978) (per curiam)). Rather, “the scheme must be one to deceive the bank and deprive it of something of value.” Shaw, 137 S. Ct. at 469.

[T]here is a difference between a scheme whose object is to obtain a new or higher salary and a scheme whose object is to deceive an employer while continuing to draw an existing salary—essentially, avoiding being fired. The history of the Supreme Court’s treatment of fraud in the employment context demonstrates why that distinction matters.

To be sure, the government charged Heine and Yates with conspiring to commit property fraud, not honest-services fraud. But we do not believe the Court intended “to let in through the back door the very prosecution theory that [it] tossed out the front.”

Permitting the government to recharacterize schemes to defraud an employer of one’s honest services—thereby profiting “through the receipt of salary and bonuses,” Skilling, 561 U.S. at 413—as schemes to deprive the employer of a property interest in the employee’s continued receipt of a salary would work an impermissible “end-run” around the Court’s holding in Skilling

We agree that if an employer offers a raise or a bonus tied to some specific performance metric, an employee who lies about having achieved that metric has deprived the employer of something of value. But the evidence at trial showed that the defendants were interested in receiving standard annual raises and end-of-year bonuses that were based on the bank’s overall financial condition, not on any specific metric they falsified to obtain additional compensation. In practice, that seems little different from deceiving an employer about working productively. In any event, the government’s argument to the jury did not distinguish between the maintenance of the defendants’ existing salaries and the receipt of an increased salary or bonus. As the government presented the case, it was effectively an honest-services case dressed in the garb of salary deprivation.

[T]he fraudulent diversion of a bank’s funds for unauthorized purposes certainly could be the basis for a conviction under section 1344.

[E]ven assuming that the bank-funds theory was presented to the jury and was valid, we still must overturn the conspiracy conviction because the government’s reliance on the accurate-information and salary-maintenance theories was not harmless. As we have explained—and as the government concedes with respect to the accurate-information theory—both theories were legally invalid. The Supreme Court has held that “constitutional error occurs” when a jury “returns a general verdict that may rest on a legally invalid theory.”

Significantly, the jury returned a split verdict and deliberated for four days—facts that weigh against a finding of harmless error.

Bank executives considering engaging in fraud should take no comfort from this result. Our decision in no way limits the scope of sections 1344 and 1349 or the government’s ability to bring prosecutions under those statutes. We hold only that when the government devotes the bulk of its presentation to two legally invalid theories of guilt—the most prominent of which, it bears repeating, the government now admits was invalid—we will not affirm a general verdict simply because, had we been on the jury, we might have found the defendants guilty on a third theory.

Nor is there any basis for remanding to give the government an opportunity for a do-over after it made the strategic choice not to address all of the defendants’ arguments in its appellate brief.

“[W]hen a statement is literally true, it is, by definition, not false and cannot be treated as such . . . , no matter what the defendant’s subjective state of mind might have been.” United States v. Aquino, 794 F.3d 1033, 1036 (9th Cir. 2015) (first alteration in original) (quoting United States v. Castro, 704 F.3d 125, 139 (3d Cir. 2013)). Even if a transaction “is a part of a fraudulent or otherwise illegal scheme,” it is not false to report it as it occurred. Erickson, 601 F.2d at 302. 

10/1/21: Case about U.S.S.G. § 4A1.1(d)

In United States v. Madrid-Becerra, --- F.4th ---, No. 19-10458 (9th Cir. 2021), the Court affirmed a sentence for illegal re-entry under 8 U.S.C. § 1326(a).

After serving a portion of a 2013 Arizona state sentence in prison, Madrid-Becerra was granted early conditional release under Ariz. Rev. Stat. § 41-1604.14 (repealed Aug. 6, 2016), known as the “half-term to deport” program.  He was then deported but came back to the U.S. without permission and was charged with 1326.  

Madrid-Becerra’s argument was that he did not commit his illegal reentry offense “while under any criminal justice sentence,” as required by § 4A1.1(d).  Thus, he claimed the district court erred by applying U.S.S.G. § 4A1.1(d). 

A divided panel disagreed. The majority rejected Madrid-Becerra’s argument that his early release did not provide for supervision of, or place restrictions or conditions on, his subsequent actions.

9/24/21: Good case on Batson

Sharing a Cal. Court of Appeal decision today, because it is relevant to federal practice.  

In People v. Silas; No. A150512  (C/A 1st, Div. 1 2021), the Court vacated the convictions based on a Batson violation.  
The case involved the DA challenging jurors on the basis of their support for the Black Lives Matter movement.  The Court explained: “support for Black Lives Matter is not, as the parties concede, a race-neutral reason for striking a prospective juror.”

The opinion is long, but worth at least a quick review.

9/23/21: Case on resentencing under 3582

In United States v. Lizarraras-Chacon, --- F.3d ---, No. 20-30001 (9th Cir. 2021), the Court reversed the district court’s denial of a motion for reduction of sentence under 18 U.S.C. § 3582(c)(2).

It held that legislative and judicial developments affecting mandatory statutory minimums are relevant considerations to the 18 U.S.C. § 3553(a) factors at step two of a § 3582(c)(2) motion.

The Court focused in two intervening developments affecting the mandatory minimum: (1) under United States v. Valencia-Mendoza, 912 F.3d 1215 (9th Cir. 2019), the defendant was never lawfully subject to a 20-year mandatory minimum because his 2010 prior conviction was not an offense “punishable by imprisonment for more than a year”; and (2) the First Step Act of 2018’s prospective reduction of the mandatory minimum from 20 to 15 years, and its replacing “felony drug offense” with “serious drug felony” as the predicate-offense requirement for triggering the mandatory minimum.

"[I]n a § 3553(a) factor analysis, a district court must [] use the fullest information possible concerning subsequent developments in the law, such as changes in sentencing guidelines, legislative changes to a mandatory minimum, and changes to a triggering predicate offense to ensure the punishment will “fit the crime” and critically, to ensure that the sentence imposed is also “‘sufficient, but not greater than necessary.’"

9/21/21: A very good day for the Fourth Amendment

Back on November 15, 2019, I argued a case about the Fourth Amendment implications of the government searching email contents without a warrant.  

Today, nearly two years later, the Ninth Circuit issued a wonderful opinion.  

In United States v. Wilson, --- F.4th ---, No. 18-50440 (9th Cir. 2021), the Court vacated Wilson's child pornography convictions and reversed the district court’s denial of his motion to suppress.  The Court also found the government waived any reliance on the good faith exception.  So, that is that. 

Here is some of the key language from the opinion: 

We once again consider the application of the Fourth Amendment’s warrant requirement to new forms of communication technology.

Our question is whether the government’s warrantless search of Wilson’s email attachments was justified by the private search exception to the Fourth Amendment. For the reasons that follow, we hold that it was not. We therefore reverse the district court’s denial of Wilson’s motion to suppress and vacate Wilson’s conviction.

[W]e assume that Wilson had a subjective expectation of privacy in his email attachments that society is prepared to recognize as reasonable.  

Our question, then, is whether Agent Thompson was permitted to look at Wilson’s email attachments under the private search exception, such that the Fourth Amendment did not require him to procure a warrant.

The government bears the burden to prove Agent Thompson’s warrantless search was justified by the private search exception to the Fourth Amendment’s warrant requirement. Before considering the private search exception, Coolidge emphasized “the most basic constitutional rule” in the Fourth Amendment arena: warrantless searches are per se unreasonable, subject to few exceptions that are “jealously and carefully drawn.” Accordingly, “[t]he burden is on those seeking the exemption.” The government has not met its burden here.

Both as to the information the government obtained and the additional privacy interests implicated, the government’s actions here exceed the limits of the private search exception as delineated in Walter and Jacobsen and their progeny.

First, the government search exceeded the scope of the antecedent private search because it allowed the government to learn new, critical information that it used first to obtain a warrant and then to prosecute Wilson. Second, the government search also expanded the scope of the antecedent private search because the government agent viewed Wilson’s email attachments even though no Google employee—or other person—had done so, thereby exceeding any earlier privacy intrusion. 

Moreover, on the limited evidentiary record, the government has not established that what a Google employee previously viewed were exact duplicates of Wilson’s images. And, even if they were duplicates, such viewing of others’ digital communications would not have violated Wilson’s expectation of privacy in his images, as Fourth Amendment rights are personal.

“When confronting new concerns wrought by digital technology, this Court has been careful not to uncritically extend existing precedents.” The government reports there were 18.4 million CyberTips in 2018, making it all the more important that we take care that the automated scanning of email, and the automated reporting of suspected illegal content, not undermine individuals’ Fourth Amendment protections. 

Having examined this case with the requisite care, we hold, for the reasons explained, that Agent Thompson violated Wilson’s Fourth Amendment right to be free from unreasonable searches when he examined Wilson’s email attachments without a warrant. 

9/16/21: Two opinions from Judge Bea

A busy day in the Ninth brings two opinions worth noting from Judge Bea. 

First, Alcaraz-Enriquez v. Garland, --- F.4th ---, No. 15-71553 (9th Cir. 2021), is an immigration case with criminal law implications.  I'm not going to summarize the entire opinion.  From the criminal law perspective, the relevant aspect has to do with the right to cross-examine the author of a probation report.

These principles—reliable evidence and fundamental fairness—converge when it comes to Alcaraz’s probation report. Alcaraz was never given any sort of opportunity to cross-examine the witnesses whose testimony was embodied in the probation report, and upon whose testimony the BIA ultimately relied in denying his appeal. Nor was any effort made—good faith or not—by the DHS to procure the witnesses, after Alcaraz preserved his right by adequate objection. This rendered the BIA’s procedure fundamentally unfair, especially given that probation reports may not offer a “highly reliable basis” on which to make important immigration decisions. Dickson, 346 F.3d at 54. So in light of the BIA’s failure to give Alcaraz an opportunity to confront the witnesses against him, the BIA’s reliance on the probation officer’s report was error.

If probation reports may not offer a highly reliable basis on which to make important immigration decisions, it stands to reason that the same is true for contested sentencing decisions.  

Second, in United States v. Shaefer, --- F.4th ---, No. 19-30266 (9th Cir. 2021), the Court affirmed the convictions and sentence for a variety of offenses, including assault on a federal officer (18 U.S.C. § 111(a)–(b)) and possession of an unregistered destructive device (26 U.S.C. §§ 5841, 5861(d), 5871). 

This is a long opinion covering numerous issues.  Much of the focus is on the right to self-representation and a court's ability to deny reappointment of counsel once a defendant has been granted permission to proceed pro se.  

One new rule from the opinion addresses a situation when, in the course of taking a waiver of counsel, the district court fails to inform the defendant of the correct minimum penalties.

[A]lthough it was made clear that Schaefer’s sentencing range was thirty years to life, his actual sentencing range—with § 844(h)’s stacking provision and assuming the merger of Schaefer’s counts under that subsection—was forty years to life.

We have not directly encountered a circumstance in which, like here, a district court incompletely identified only the defendant’s minimum sentence. Instead, we usually encounter circumstances in which the district court inaccurately identified the defendant’s maximum sentence.  In those circumstances, we evaluated the defendant’s “awareness of the range of possible penalties,” and whether the defendant understood “the magnitude of the loss” he faced and “knew of his substantial penal exposure.”

We see no reason to apply a different rule to the defendant’s knowledge of the minimum penalties than that which we apply to the defendant’s knowledge of the maximum penalties. Therefore, we hold that to find a defendant knowingly and intelligently waived his right to counsel, he must have substantially understood the severity of his potential punishment under the law and the approximate range of his penal exposure. Ideally, of course, a district court should strive to ensure that the defendant unquestionably understands all possible penalties, including any statutory minimums, maximums, and stacking provisions 

There is also an extended discussion of whether Schaefer's "homemade explosive device constituted a 'destructive device' within the scope of 18 U.S.C. § 921(a)(4) and 26 U.S.C. § 5845(f)."  The Court concluded it did. 

9/13/21: "We hold that the primary-purpose test applies to attorney-client privilege claims for dual-purpose communications"

In In Re Grand Jury, --- F.4th ---, No. 21-55085 (9th Cir. 2021), the Court affirmed the district court’s orders holding appellants, a company and a law firm, in contempt for failure to comply with grand jury subpoenas related to a criminal investigation. 

The opinion's introduction provides a good summary:

Given our increasingly complex regulatory landscape, attorneys often wear dual hats, serving as both a lawyer and a trusted business advisor. Our court, however, has yet to articulate a consistent standard for determining when the attorney-client privilege applies to dual-purpose communications that implicate both legal and business concerns. 

In this case, the grand jury issued subpoenas related to a criminal investigation. The district court held Appellants— whom we identify as “Company” and “Law Firm”—in contempt after they failed to comply with the subpoenas. The district court ruled that certain dual-purpose communications were not privileged because the “primary purpose” of the documents was to obtain tax advice, not legal advice. Appellants argue that the district court erred in relying on the “primary purpose” test and should have instead relied on a broader “because of” test. We affirm and conclude that the primary-purpose test governs in assessing attorney-client privilege for dual-purpose communications.

9/8/21: clicking on a website = "patronizing a place"

In United States v. Green, --- F.4th ---, No. 20-50257 (9th Cir. 2021), a divided panel affirmed the district court's revocation of Green's supervised release.  

The majority held that by visiting an adult pornography website Green violated the condition that he could not "patronize any place' where sexually explicit 'materials or entertainment are the primary material or entertainment available."

The majority first concluded, "an individual can [] 'patronize' a business merely by visiting it, or in the case of media, by viewing or consuming it."  It further determined, '"[p]lace” includes not only a physical location, but also 'an indefinite region or expanse.' A website qualifies as an indefinite region or expanse located in the digital realm."  Thus, it held, [v]isiting a website primarily featuring pornography [] constitutes 'patronizing a place' under a contemporary and common sense understanding of those terms."

Judge Paez has a compelling dissent, which begins: "Clicking on a website does not, on its own, entail 'patronizing a place.'"

One other point to consider -- at least for me -- is whether the majority's interpretation that a website is a "place" could have Fourth Amendment implications in future cases.  Food for thought. 

8/17/21: Rule 11 violations not automatically prejudicial

In United States v. Ferguson, --- F.4th ---, No. 19-10228 (9th Cir. 2021), the Court affirmed a bank robbery conviction.  

Ferguson sought to vacate his conviction because, during the plea colloquy, the magistrate judge  failed to ask him, as required by Fed. R. Crim. P. 11(b)(2), whether he was entering his plea voluntarily or whether his plea resulted from force, threats, or promises.

Applying plain-error review, the Court reaffirmed that a Rule 11 error does not automatically lead to reversal; a defendant must continue to show a Rule 11 violation’s impact on substantial rights.  Because Ferguson did not make that showing, the Court affirmed. 

8/16/21: Hobbs Act robbery is not a “crime of violence” under USSG § 4B1.2(a)

In United States v. Prigan, --- F.4th ---, No. 18-30238 (9th Cir. 2021), the Court vacated a sentence for illegally possessing firearms, and remanded for resentencing.

The Court held the district judge erred in concluding that Prigan's prior conviction for Hobbs Act robbery under 18 U.S.C. § 1951(b)(1) is a “crime of violence” under United States Sentencing Guidelines § 4B1.2(a).

Judge Murguia's opinion takes a straightforward approach to the categorical analysis.  So, if you need a quick refresher, this is a good opinion to read. 

Here's the conclusion: "In sum, Hobbs Act robbery sweeps more broadly than (1) § 4B1.2(a)’s force clause, (2) § 4B1.2(a)’s enumerated offense of robbery, and (3) § 4B1.2(a)’s enumerated offense of extortion. Hobbs Act robbery covers using force or threatening to use force against persons or property, while § 4B1.2(a)’s crime-of-violence definitions do not cover using force or threatening to use force against property. Accordingly, Prigan’s 2014 conviction for Hobbs Act robbery is not categorically a crime of violence under § 4B1.2(a). The district court erred in ruling otherwise when calculating Prigan’s Guidelines range."

Two things to note: 

1.  The opinion also addresses harmless error in the Guidelines context and reminds us:  "[n]ormally, [a] mistake in calculating the recommended Guidelines sentencing range is a significant procedural error that requires us to remand for resentencing."

2. The crime of violence definition in 4B1.2 is different from other statutes because it includes only force against the person (not property).  Thus, this case does not conflict with United States v. Dominguez, 954 F.3d 1251, 1260 (9th Cir. 2020), which held that Hobbs Act robbery constitutes a “crime of violence” under 18 U.S.C. § 924(c)(3)(A).  This issue is currently pending before the Supreme Court. 

8/13/21: 8/13/21: Case on sending threats via mail

In United States v. Bachmeier, --- F.4th ---, No. 20-30019 (9th Cir. 2021), the Court affirmed a conviction under 18 U.S.C. § 876(c) for sending a communication that threatened a state judge assigned to the defendant’s civil proceeding.

Section 876(c) prohibits an individual from (1) knowingly sending a communication through the mail that (2) is addressed to any other person and (3) contains any threat to kidnap any person or any threat to injure the person of the addressee or of another. 

Although Bachmeier sent his threat addressed to the Kenai Courthouse, not an individual, the Court held that the evidence was legally sufficient to support the jury's finding that the judge, a natural person, was the addressee because the letter specifically mentioned and threatened her. 

The Court further concluded the jury instructions were erroneous because they allowed the jury to convict based on Bachmeier's knowledge of the threat rather than his subjective intent to threaten. 

In reaching this conclusion, the Court explained that Ninth Circuit Model Criminal Jury Instruction 8.47A is incorrect.     "[C]ase law makes clear that a subjective intent to threaten is the required mental state, not, as Instruction 8.47A allows, mere 'knowledge that the [communication] would be viewed as a threat.'' Nevertheless, the error was harmless. 

8/11/21: "deferential standards of review have real consequences for real people"

Let's start today with a quote from the dissent: 

"I laud the deference which the majority affords to the experience and judgment of federal district judges. At some point, however, this deference must yield to reality and common sense. Courts of appeal must patrol the boundaries of procedural fairness and remind themselves that deferential standards of review have real consequences for real people. In Mr. Wilson’s case, he will serve 52 additional months in prison for reasons that—I respectfully submit—are not clear."

In today's case, United States v. Wilson, --- F.4th ---, No. 20-50015 (9th Cir. 2021), the majority affirmed the district court’s denial of Wilson’s second motion for a sentence modification under 18 U.S.C. § 3582(c)(2).

This is NOT a compassionate release case. 

This is a case where the original sentence was based on a sentencing range that has subsequently been lowered by the Sentencing Commission. 

There is a per curium majority, a concurrence, and a dissent. 

As the quote above suggests, the case turned on the majority's conclusion that the district court, in denying the second modification motion, sufficiently explained its reasons.  

There is also considerable discussion about whether Mr. Wilson's sentence even qualified for a reduction, because he had previously been resentenced.  

7/29/21: Competency case

In United States v. Telles, --- F.4th ---, No. 19-10218 (9th Cir. 2021), the Court affirmed convictions and the sentence for online enticement of a minor in violation of 18 U.S.C. § 2422(b), travel with intent to engage in illicit sexual conduct in violation of 18 U.S.C. § 2423(b), and engaging in illicit conduct in foreign places in violation of 18 U.S.C. § 2423(c).

Throughout the proceedings, defense counsel made six motions for a competency evaluation.  The district court denied them all, concluding Telles was malingering.  The Ninth affirmed: “[A] reasonable judge, faced with this record, would not have found it necessary to doubt [Telles’s] competency.”  

This case is a good reminder that, to get a competency evaluation under 18 U.S.C. § 4241, it is critical to show not only a mental-health issue, but also a direct connection between that issue and the client's ability to understand or assist.  As the Ninth Circuit put it,  “[e]ven a mentally deranged defendant is out of luck if there is no indication that he failed to understand or assist in his criminal proceedings.” 

The Court also affirmed the district court’s exclusion of Telles' proposed expert testimony: "The district court 'warned Mr. Telles that he risked forfeiting the opportunity to present his own expert or to present a mental disease or defect defense if he did not cooperate with the government’s expert.' Yet Telles proceeded to do exactly that."

Finally, the Court also affirmed the district court in: (1) denying Telles' motion to represent himself, (2) allowing the government to present expert testimony on the typical behaviors of sex offenders of child victims, and (3) imposing a sentencing enhancement under U.S.S.G. § 4B1.5(b)(1) for engaging in a pattern of activity involving prohibited sexual conduct. 

7/28/21: All about entrapment

In United States v. Gomez, --- F.4th ---, No. 19-50313 (9th Cir. 2021), a divided panel affirmed convictions and the sentence for conspiracy with intent to distribute at least 50 grams of methamphetamine, distribution of methamphetamine, and being a felon in possession of a firearm.

The primary issue on appeal was whether the district court erred in allowing the government to preemptively rebut an entrapment defense by presenting predisposition evidence in its case-in-chief.  The majority held it did not, explaining: 

• A defendant need not inform the court of his intent to invoke an entrapment defense. “A simple plea of not guilty puts the prosecution to its proof as to all elements of the crime charged, and raises the defense of entrapment.”

• Nor does the defendant have to present evidence to support the entrapment defense; rather, the defendant may rely on evidence presented by the government. In Sherman v. United States, for instance, the Supreme Court held that “entrapment was established as a matter of law” based solely on “the undisputed testimony of the prosecution’s witnesses.” 356 U.S. at 373. Similarly, we have explained that “[t]he evidence supporting the entrapment defense need not be presented by the defendant,” and that “[e]ven when a defendant presents no evidence of entrapment, it may nonetheless become an issue at his trial if (1) the Government’s case-in-chief suggests that the defendant who was not predisposed was induced to commit the crime charged, or (2) a defense or a government witness gives evidence suggesting entrapment.” 

• Because in our circuit a defendant can argue that he was entrapped, and may be entitled to an entrapment instruction, based solely on evidence introduced by the government, we do not have a per se rule precluding the government from rebutting an anticipated entrapment defense in its case in chief, because such a rule would be unfair. Said otherwise, a blanket rule “that no evidence of a predisposition to commit the crime and no proof of prior convictions may ever be introduced by the government except in rebuttal to affirmative evidence of entrapment adduced by defendant” would “work grave prejudice to the government,” because it would allow a defendant to invoke the defense without the government having had an opportunity to rebut it.

• Nevertheless, the government can introduce such evidence in only limited circumstances. We agree with the Second Circuit that evidence rebutting an anticipated entrapment defense “is admissible as part of the prosecution’s case in chief” only “where it is clear . . . that the [entrapment] defense will be invoked.” A defendant clearly indicates that he will invoke an entrapment defense when defense counsel “raise[s] the defense of entrapment during his opening statement,” when the entrapment defense materializes “through a defendant’s presentation of its own witnesses or through cross-examination of the government’s witnesses,” or when the defendant requests an entrapment instruction or tells the trial judge that he intends to invoke an entrapment defense"
  

In this case, the majority concluded that the district court permissibly allowed the government to present predisposition evidence in its case-in-chief, because it was sufficiently clear that Gomez would invoke an entrapment defense.

The majority also held that the district court did not err in admitting gang-affiliation evidence.  It reasoned: "when a defendant raises an entrapment defense, character, reputation, and lack of reluctance constitute 'essential elements' of the entrapment defense."  And "[b]ecause character evidence is both admissible and an essential element of an entrapment defense, it may be proved under Rule 405 of the Federal Rules of Evidence by reputation or opinion testimony, as well as by specific instances of conduct."

Next, the majority held that any error in allowing Gomez’s parole officer to testify at trial was harmless. 

Finally, the majority held the district court properly applied a two-level enhancement under § 2D1.1(b)(1) for possessing a dangerous weapon. 

The dissent argued that the trial court committed reversible error by allowing the government to present evidence to the jury in its case-in-chief to “rebut” an anticipated entrapment defense which was never presented by the defendant. 

---

7/26/21: Indictment sufficient over sovereign immunity challenge

In United States v. Pangang Group, --- F.4th ---, No. 19-10306 (9th Cir. 2021), the Court affirmed the district court’s denial of a motion by four Chinese companies to dismiss an indictment charging violations of the criminal provisions of the Economic Espionage Act.

The companies moved to dismiss the indictment against them, arguing they were “instrumentalities” of the government of China and were therefore entitled to sovereign immunity under the Foreign Sovereign Immunities Act (FSIA).  The district court denied the motion to dismiss. 

The Court allowed the interlocutory appeal from the denial of the motion to dismiss.  But the Court concluded that in moving to dismiss the indictment, the companies failed to carry their burden to make a prima facie showing that they are instrumentalities of a foreign sovereign within the meaning of the FSIA.

7/22/21: Two Ninth Circuit criminal decisions today

In United States v. Warren, --- F.4th ---, No. 20-10213 (9th Cir. 2021), the Court held that a judgment and commitment order was proper. 

"In a one-count superseding information, the government charged Defendant Jeremy Warren with 'VIOLATION: 18 U.S.C. § 1594(C) - CONSPIRACY TO ENGAGE IN SEX TRAFFICKING OF A CHILD IN VIOLATION OF 18 U.S.C. § 1591(A)(1), (B)(2).'"

Warren argued the judgment and commitment order must be amended to remove references to the underlying substantive offense, 18 U.S.C. § 1591(a)(1) and (b)(2).  

The Court disagreed. "It is axiomatic that, to be found guilty of a federal conspiracy, one must agree with at least one other person to commit a substantive federal offense. Thus, although the judgment is not required to pinpoint the statute defining the substantive offense that is the object of the conspiracy, neither is it error for the judgment to include such a reference." 

Final note, obviously, the Jeremy Warren from this case is not my law partner.  I promised him I would say this. 

Next, in United States v. Halamek, --- F.4th ---, No. 19-10366 (9th Cir. 2021), the Court affirmed a conviction for transporting a minor with intent to engage in criminal sexual activity in violation of 18 U.S.C. § 2423(a) (Count 1) and traveling with intent to engage in illicit sexual conduct in violation of 18 U.S.C. § 2423(b) (Count 2), affirmed the sentence on Count 1, vacated the sentence on Count 2, and remanded for resentencing.

The Court ruled that admission of expert testimony on "grooming" was proper: "Our circuit appears not to have addressed the probative nature of expert testimony about grooming for child sexual abuse in a published opinion. However, several other circuit courts of appeal have held that admitting such testimony is not an abuse of discretion because the testimony “illuminate[s] how seemingly innocent conduct . . . could be part of a seduction technique. We find the reasoning of the opinions of our sister circuits persuasive."

The Court also rejected Halamek's challenge to the admission of Rule 414 evidence of his prior molestations. 

Finally, the Court ruled on several sentencing claims and found that a criminal history calculation error was not plain error because the Guidelines would have been the same. "As described above, Halamek’s Guidelines range would have been the same had the district court applied the correct criminal history score of II. Therefore, we conclude that Halamek has not demonstrated plain error as to his criminal history points calculation."