1/29/21: Vagueness challenge

In United States v. Hudson, --- F.3d ---, No. 19-10227 (9th Cir. 2021), the Court affirmed a mandatory minimum 10-year sentence for possession of child pornography under 18 U.S.C. § 2252(b)(2).

The statute applies if, among other things, a defendant has a prior conviction “under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.”

Mr. Hudson argued the provision was vague.  The Court disagreed. 

"Hudson is correct that our precedent interpreting 'sexual abuse of a minor' has created a two-part definition—one covering the crime of statutory rape proscribed by § 2243 and the other covering sexual abuse crimes in the ordinary sense—both of which inform our analysis under § 2252(b)(2) . . . Yet, that criticism does not reveal a constitutional infirmity. Indeed, the two definitions ultimately are 'complementary, not inconsistent.'  And '[w]hether the terms in § 2252(b)(2) are given their generic meaning or are defined in light of their federal counterparts . . . they are unlikely to sweep in the bizarre or unexpected state offenses . . . .' Absent such risk, the phrase 'abusive sexual conduct involving a minor' provides ordinary people with fair notice of the statute’s reach and does not raise a constitutional vagueness concern."

"The same is true of the phrase 'relating to.' As we recently explained, 'the relating to’ language . . . has a broadening effect [that] will allow certain flexibility at the margins,' but it is not without limits. To trigger the sentencing enhancement, the state offense must share a core substantive element of the generic federal definition. Thus, even if that flexibility at the margins could be 'an indicator' of an as-applied challenge, it is not an indicator that the statute is impermissibly vague on its face, and certainly not as applied to Hudson."

One other thing to note: the Court expressly does not decide whether it can consider facial vagueness challenges or only as-applied: "Absent exceptional circumstances, 'a defendant who cannot sustain an as-applied vagueness challenge to a statute cannot be the one to make a facial vagueness challenge to the statute.”'Keshem v. Barr, 941 F.3d 358, 375 (9th Cir. 2019). Although Keshem held that a recent line of Supreme Court cases did not alter this general rule, id. at 375–76, we later addressed a facial vagueness challenge to two criminal statutes, noting that the same Supreme Court cases 'refute[d] the Government’s assertion that outside the First Amendment context, only as applied vagueness challenges may be considered,' Kuzma, 967 F.3d at 971 n.10. Because Hudson’s challenge fails whether facial or as applied, we do not decide that issue here."

1/21/21: Miranda decision

In United States v. Mora-Alcaraz, --- F.3d ---, No. 19-10323 (9th Cir. 2021), the Court affirmed the district court's grant of Mr. Mora-Alcarez's motion to suppress his statements and remanded for further proceedings on his motion to suppress a gun.

This case comes by way of government interlocutory appeal.  As a threshold issue, the Court confirmed the longstanding rule that a government appeal from an order suppressing evidence is timely if the notice is filed within thirty days of the district court’s denial of the government’s motion for reconsideration. 

As to the merits, the Court held the district court correctly suppressed incriminating statements made after the armed police officers met Mr. Mora-Alcarez in two marked vehicles, separated him from his son, and interrogated him without reading him Miranda warnings. The Court explained, "No physical restraint of Mora-Alcaraz was necessary so long as the police kept him separated from his son. He could not leave."

As to the gun, the Court explained that suppression of physical evidence does not necessarily follow from a Miranda violation.  Instead, the question is whether "the consent to the search of the trunk was voluntary."  "The proper analysis, however, looks to all the circumstances, including: '(1) whether defendant was in custody; (2) whether the arresting officers have their guns drawn; (3) whether Miranda warnings have been given; (4) whether the defendant was told he has a right not to consent; and (5) whether defendant was told a search warrant could be obtained.'"

The Court thus remanded "for the district court to determine whether Mora-Alcaraz’s consent to the search of the truck was voluntary."

1/19/20: Very interesting post-Rehaif decision on possessing a firearm while being an alien who had been admitted to the United States under a nonimmigrant visa

 In United States v. Gear, --- F.3d ---, No. 19-10353 (9th Cir. 2021), a split panel applied plain-error review and affirmed a conviction for violating 18 U.S.C. § 922(g)(5)(B) by possessing a firearm while being an alien who had been admitted to the United States under a nonimmigrant visa.

The full panel held that after Rehaif v. United States, 139 S. Ct. 2191 (2019), the government must prove a defendant knew he was admitted into the country under a nonimmigrant visa. The panel wrote that establishing that the defendant knew he had an H-1B visa is not enough.

"Under a straightforward application of Rehaif’s textual command, the knowledge requirement must apply to the 'relevant category of persons' here—aliens who were 'admitted to the United States under a nonimmigrant visa.' 18 U.S.C. § 922(g)(5)(B). Thus, to gain a conviction here, the government must prove Gear knew he was admitted into the country 'under a nonimmigrant visa.'"

"A defendant must therefore know that he was admitted into the country under a nonimmigrant visa."

"So, under this statutory scheme, the government must show that the defendant knew his particular visa was 'nonimmigrant.' Such knowledge can be established by demonstrating Gear knew that his visa was classified as a “nonimmigrant visa,” or by showing he knew the “offending characteristics” of his visa—i.e., the facts that make his visa a nonimmigrant one."

"Establishing that Gear simply knew he had an H-1B visa is not enough. A visa’s label—that it is referred to as an “H1B visa”—is not a fact that makes it a 'nonimmigrant visa.'"

Although the jury instructions did not include this knowledge requirement, the per curiam majority concluded Mr. Gear could not establish plain error because the record overwhelmingly indicated that he knew it was illegal for him to possess a firearm.

Judge Bumatay dissented from this aspect of this opinion.  His dissent contains excellent language on the right to a jury determination. Here's a sample:

"Gear has established that there is a reasonable probability that the outcome of his trial would be different if the jury were properly instructed. Rather than conjecture about his guilt from the bench, we should return the question to where it is constitutionally reserved: the jury box."

"Before upholding a conviction rendered on erroneous jury instructions, we demand “strong and convincing evidence” that the jury would’ve reached the same result even if it had been properly instructed."

"While skillful prosecutors may be able to convince a jury based on the evidence introduced at trial that Gear knew he had a nonimmigrant visa, reaching this conclusion on the jury’s behalf requires us to build a 'veritable fairyland castle' of government-friendly inferences. But a jury could reject these inferences and reach the opposite conclusion. Because the evidence on this question is thin, I cannot confidently say that no reasonable juror would have found sufficient doubt about Gear’s knowledge to vote for acquittal."

"Gear was deprived of his basic right to have the jury decide every element of the offense charged. The error also led him to forego possibly winning defenses and trial tactics. And the evidence that the jury would have convicted him anyway is too thin for us to say that close is close enough. Accordingly, allowing Gear’s conviction to stand poses a “greater threat to the integrity and fairness of judicial proceedings” than reversal would. 

"'[T]he Constitution does not trust judges to make determinations of criminal guilt.' Judges—and federal judges in particular—are 'proper objects of that healthy suspicion of the power of government,' which prompted the people to 'reserve[] the function of determining guilt to themselves, sitting as jurors.' When a defendant can show a reasonable probability that the jury would have reached a different outcome, our role is to send the case back to the jury rather than 'reviewing the facts ourselves and pronouncing the defendant without-a-doubt guilty.'"

1/14/20: Probable cause, conditional pleas, and judicial involvement in plea negotiations

In United States v. King, --- F.3 ---, No. 20-10007 (9th Cir. 2020), the Court affirmed the district court’s denial of Mr. King's motion to suppress firearms, and dismissed the remainder of his appeal as waived, based on his conditional guilty plea to being a felon in possession. 

This appeal covers a lot of ground.  Mr. King challenged the validity of a search warrant for his home.  He argued the warrant was overbroad—that there was only probable cause for a particular revolver, and no other firearms. 

The Court disagreed.  It found that the warrant application, which alerted a judge that the defendant took the revolver to hide it from law enforcement for a domestic-abuse suspect, raised the inference that the defendant possessed other firearms; and that the facts, taken together, provided the judge with a substantial basis to authorize the search for “any firearm.” 

Here's an example of the Court's reasoning: "The affidavit demonstrated that King took the revolver to hide it from law enforcement for the domestic abuse suspect. By concealing the “silver & gold” firearm, it raised the fair inference that King possessed other firearms. After all, the suspect wouldn’t have entrusted the revolver to King if the suspect didn’t believe King was willing and able to covertly store firearms. That King seemingly served as a “safe deposit box” for the suspect’s firearm made it likely that King did the same for other firearms. Plus, King’s criminal history meant that 'any firearm' in his possession was contraband and evidence of a crime. Considering all of this, we see no violation of the Fourth Amendment in the search and seizure here."

The Court further held that the good faith exception would apply.

In addition, the Court held that Mr. King's conditional plea did not preserve his sentencing claim and that the district court did not improperly engage in plea negotiations. 

1/12/20: Case on suggestive IDs and Brady obligations

In United States v. Bruce, --- F.3d ---, No. 19-10289 (9th Cir. 2021)', the Court affirmed Mr. Bruce's convictions for conspiracy, 18 U.S.C. § 371, Attempt to Possess with Intent to Distribute Heroin or Marijuana, 21 U.S.C. §§ 846, 841(a)(1), and Bribery: Public Official Accepting a Bribe, 18 U.S.C. § 201(b)(2)(C). 

The case arose from Bruce’s involvement in a drug smuggling scheme at the United States Penitentiary at Atwater, California, where he worked as a correctional officer. 

"Bruce raises two issues on appeal. First, he argues the district court erred by admitting testimony from another participant in the smuggling scheme who identified Bruce from a Facebook photo. We conclude the district court did not abuse its discretion by admitting the government’s identification evidence. Second, Bruce argues he is entitled to a new trial because the government violated the discovery obligations imposed by Brady v. Maryland, 373 U.S. 83 (1963). In particular, Bruce argues the government violated his right to due process because it failed to disclose evidence of another prison guard’s alleged malfeasance. We agree with Bruce that at least some of the withheld evidence was exculpatory, but conclude it was not material within the meaning of Brady."

There is helpful language in the opinion to use in future cases.

On IDs:

"An identification procedure is suggestive when it focuses upon a single individual thereby increasing the likelihood of misidentification."

"Among other factors, we have considered the witness’s opportunity to view the person being identified, the witness’s degree of attention, the accuracy of the witness’s prior description, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the prior observation of the suspect and the confrontation."

On Brady:

"Exculpatory evidence includes evidence that is favorable to the defense, meaning “evidence that tends to prove the innocence of the defendant.” “Any evidence that would tend to call the government’s case into doubt is favorable for Brady purposes.” 

"The obligations imposed by Brady are not limited to evidence prosecutors are aware of, or have in their possession. Rather, individual prosecutors have 'the duty to learn of any favorable evidence known to others acting on the government’s behalf' as part of their “responsibility to gauge the likely net effect of all such evidence” to the case at hand."

"'Because prosecutors are in a ‘unique position to obtain information known to other agents of the government,’ they have an obligation to 'disclose what they do not know but could have learned.'  Prosecutors cannot turn a blind eye to their discovery obligations."

"The responsibility imposed by Brady includes looking beyond evidence in the prosecutor’s file; there were striking similarities between the two smuggling operations; Hayes was directly involved in the Atwater investigation that led to Bruce’s arrest and had access to some of the witnesses who testified against Bruce; and Bruce’s trial theory argued someone else was responsible for the smuggling at Atwater. Under the facts presented, we conclude this evidence was exculpatory within the meaning of Brady and at the very least the government was required to investigate it."

"Evidence is sometimes considered material if the government’s other evidence at trial is circumstantial, or if defense counsel is able to point out significant gaps in the government’s case through cross-examination, or if witnesses provided inconsistent and inaccurate testimony."

1/7/20: First published reversal of the year

Today brings the first published criminal reversal of 2021.  Full disclosure, I'm the appellate attorney on this case. 

In United States v. Grimaldo, --- F.3d ---, No. 19-50151 (9th Cir. 2021), the Court vacated Mr. Grimaldo's 10-year sentence and remanded for resentencing.  

"Manuel Grimaldo, arrested with nearly a quarter pound of methamphetamine and an inoperable pistol on his person, was found guilty of simple possession of methamphetamine and pled guilty for felon-in-possession of a firearm. The district court sentenced him to 120 months after adopting a four-level enhancement for possession of a weapon in connection with another felony (i.e., simple possession)."

First, "the government contends that Grimaldo’s repeated agreement to the enhancement constitutes waiver, precluding him from challenging it."   

The Court rejected this argument: "Grimaldo responds that any 'strategic' or 'tactical' decision would have been 'nonsensical.' We agree. The government attempts to raise mountains from molehills, but nothing in the record erects an insurmountable barrier to appellate review."

"Grimaldo agreed that application of the four-level enhancement was legitimate; indeed, he agreed many times. But the record, reasonably read, reflects no knowledge of contrary law — let alone strategic maneuvering. And it supports no conclusion that Grimaldo, or his counsel, made these decisions for tactical advantage. We thus exercise our discretion to proceed to the merits."

On plain error review, the Court concluded the district court erred in applying the four-level enhancement for possession of a weapon in connection with another felony under U.S.S.G. § 2K2.1(b)(6)(B).

"[I]t is not self-evident that possessing a firearm emboldens a person to seek more narcotics. As Grimaldo assures us, for emboldening drug possession, addiction alone may suffice. The district court needed to make factual findings connecting Grimaldo’s possession of a firearm with his likelihood of owning illegal narcotics. It never did that. Absent such a finding, a defendant found with a firearm could face this four-level enhancement for virtually any felony because a firearm theoretically may embolden him or her to commit a crime. But in imposing enhancements under the Guidelines, we cannot be swayed by speculation or convinced by conjecture."

Next, the Court agreed the district court plainly erred in imposing a 36-month sentence for simple possession running concurrent to his 120-month sentence for possessing a firearm as a felon.  This sentence exceeded the statutory maximum for simple possession.  The Court "exercise[d] [its] discretion to vacate the 36-month sentence under Count I, and remand the matter to it for resentencing."

Finally, the Court held the district court did not abuse its discretion in declining to strike arrest allegations from the PSR

1/6/20: First criminal decision of 2021

 Today brings the Ninth's first criminal decision of 2021.

In United States v. Henry, --- F.3d ---, No.19-50080 (9th Cir. 2021), the Court affirmed Mr. Henry's convictions for one count of conspiracy to commit bank robbery under 18 U.S.C. § 371; five counts of armed bank robbery under 18 U.S.C. § 2113(a) and (d); two counts of bank robbery under § 2113(a); and three counts of brandishing a firearm during the bank robberies under 18 U.S.C. § 924(c)(1)(A)(ii).

"On appeal, Henry argues that: (1) the indictment should be dismissed because the district court made inadequate findings and did not dismiss the indictment under the Speedy Trial Act, 18 U.S.C. § 3161(h); (2) the § 924(c) convictions should be vacated because the district court improperly applied Pinkerton liability to those counts; and (3) the armed bank robbery counts and the derivative § 924(c) counts should be vacated for structural error because the armed bank robbery counts failed to allege the required mens rea."

The opinion contains some helpful language on waiver, including one of my favorite gems: "“[I]t is claims that are deemed waived or forfeited, not arguments.” United States v. Walton, 881 F.3d 768, 771 (9th Cir. 2018)."

As to the substance of Mr. Henry's arguments, first, "Henry argues that the district court did not make the required findings because it did not hold hearings before granting the second and third continuances and it failed to identify the reasons specifically applicable to Henry to delay the trial."  The Court, however, explained: "[t]he statute does not require the court to hold a live hearing on a motion for continuance. The issue is whether the district court made sufficient findings to support each of the three ends-of-justice continuances that it granted."  

It held: "the district court made findings on the record based on detailed stipulated facts provided in writing by the government and Henry’s co-defendants. Although not joined by Henry, the stipulations included statements by Henry’s counsel. The government and the codefendants stipulated that conflicting trial dates and the need for more time to prepare for trial required the additional delay. The district court made adequate fact findings to justify each of the three ends-of-justice continuances." 

The Court further explained, "[t]he three continuances totaled 315 days, or approximately ten and a half months. This delay of close to a year is 'presumptively prejudicial.'" But "[c]onsidering all the circumstances, 'the addition of [the codefendant’s] testimony, although prejudicial, did not make the delay unreasonable.'"

Next, "Henry argues that United States v. Davis, 139 S. Ct. 2319 (2019) and Honeycutt v. United States, 137 S. Ct. 1626 (2017) prohibit using § 2113(d) convictions based on a Pinkerton theory of liability as predicates for § 924(c) convictions. He also argues that Pinkerton liability is inapplicable to the armed bank robbery and § 924(c) counts because the jury was instructed on conspiracy to commit generic bank robbery, not armed, bank robbery, and because the government failed to show the required mens rea. Finally, Henry argues that the court should reevaluate Pinkerton liability in light of the holding in Rosemond v. United States, 572 U.S. 65 (2014), that aiding-and-abetting liability for § 924(c) charges requires proof of the defendant’s advance knowledge that a firearm would be present."

The Court rejected each of these claims. 

"Honeycutt does not apply principles of conspiracy liability and does not require this court to vacate Henry’s § 924(c) convictions."

"Under Davis, predicate crimes of violence for § 924(c) charges are limited to those that have violence as an element under § 924(c)(3)(A). Henry’s argument fails because armed bank robbery, his predicate offense, does have violence as an element."

"Davis does not conflict with or undermine the cases upholding § 924(c) convictions based on Pinkerton liability."

Next, "Henry also argues that his § 924(c) convictions should be vacated because the jury instructions and verdict form for the predicate § 2113(d) convictions only required the jury to find a conspiracy to commit generic bank robbery."  But "Henry’s convictions made him liable for armed bank robbery as a principal. Armed bank robbery is a crime-ofviolence predicate for § 924(c)(3)(A). Henry’s § 924(c) convictions are valid."

Next, "Henry relies on Du Bo to argue that these counts fail to allege knowing or intentional use of a weapon."  The Court held, however, "[u]nlike the word 'unlawfully' in the Du Bo indictment, the word 'assault' used in Henry’s indictment denotes intentionality. The indictment charges the required mens rea."

Finally, "Henry argues that these questions on the verdict form, which do not include the 'use of a weapon' element for the armed bank robbery counts, are plainly erroneous, requiring reversal of the convictions."

The Court held, "The failure to include the 'use of a weapon' element in a verdict form for armed robbery was incorrect. But the jury instructions, which Henry agreed to, were correct."