3/25/21: Sec. 924(c) is divisible, and that matters for sentencing

After a bit of a break, the Ninth Circuit is back with a criminal case.  

In United States v. Furaha, --- F.3d ---, No. 10063 (9th Cir. 2021), the Court considered, "[w]hether a prior conviction pursuant to 18 U.S.C. § 924(c) is a 'controlled substance offense' for purposes of U.S.S.G. § 2K2.1(a)(4)(A)."  The Court held it can be. 

The Court agreed with the parties "that the statute is overbroad. The statutory definition of a 'drug trafficking crime'—'any felony punishable under the Controlled Substances Act'— encompasses more conduct than the definition of a 'controlled substance offense' pursuant to § 4B1.2(b). See 18 U.S.C. § 924(c)(2)."

"Because the statute’s definition of 'drug trafficking crime' is not a categorical match to the Sentencing Guidelines’ definition of 'controlled substance offense,' we must determine whether the statute is divisible."

The Court explained that section 924(c) "requires that the defendant commit a predicate offense, specifically a 'crime of violence' or a 'drug trafficking crime.' The relevant question, however, is whether the predicate offense is an element of a § 924(c) crime—in other words, whether the jury must unanimously agree that the defendant committed the predicate drug trafficking offense (or crime of violence) to convict the defendant."  

The Court held that the predicate offense is an element.  Further, '"drug trafficking crime' pursuant to § 924(c) is divisible."  Then, applying the modified categorical approach, the Court concluded the subject "§ 924(c) conviction is a 'controlled substance offense' within the meaning of § 4B1.2(b)."  Thus, the Court affirmed the sentence. 

3/4/20: The Anti-Riot Act & the Clean Water Act

 First, in United States v. Rudo, ---F3d ---, No. 19-50189 (9th Cir. 2021), the Court reversed the district court’s dismissal of an indictment charging conspiracy to violate the Anti-Riot Act and substantively violating the Act.

The district court held the Act was unconstitutional, as facially overbroad under the First Amendment.

The Ninth Circuit disagreed.  Although it too found parts of the Act criminalized protected speech, and were thus unconstitutional, it determined these provisions were severable.  And with such severance, the Act was not facially overbroad, but rather prohibits unprotected speech that instigates an imminent riot, unprotected conduct such as committing acts in furtherance of a riot, and aiding and abetting of that speech or conduct.

The opinion's conclusion provides a pretty good summary: "Once the offending language is elided from the Act by means of severance, the Act is not unconstitutional on its face. We recognize that the freedoms to speak and assemble which are enshrined in the First Amendment are of the utmost importance in maintaining a truly free society. Nevertheless, it would be cavalier to assert that the government and its citizens cannot act, but must sit quietly and wait until they are actually physically injured or have had their property destroyed by those who are trying to perpetrate, or cause the perpetration of, those violent outrages against them. Of course, the government cannot act to avert a perceived danger too soon, but it can act before it is too late. In short, a balance must be struck. Brandenburg struck that balance, and the Act (after the elisions) adheres to the result. Therefore, we reverse the district court’s dismissal of the indictment and remand for proceedings consistent with this opinion."

Next, in United States v. Lucero, --- F.3d ---, No. 19-10074 (9th Cir. 2021), the Court reversed a conviction on three counts of knowingly discharging a pollutant in violation of the Clean Water Act.  This case involves a very complicated analysis of a variety of statutory and regulatory provisions.  

But at bottom, the majority opinion concluded the Act requires the government to prove that a defendant knew he was discharging material “into water,” but need not prove that the defendant knew he discharged the pollutant in “to waters of the United States.”  The Court held that, unlike the former phrase, the latter phrase was a jurisdictional element that did not require knowledge.  

The Court vacated Lucero's convictions because the jury instructions failed to make clear the requirement that the defendant knew the pollutant was discharged “into water,” and it could not say that the error was harmless beyond a reasonable doubt. 

3/3/21: Joint and several forfeiture

 In United States v. Thompson, --- F.3d ---, No. 18-30206 (9th Cir. 2021), the Court affirmed in part, reversed in part, and remanded in a case in which two defendants appealed (1) their convictions for conspiracy to commit wire fraud in violation of 18 U.S.C. §§ 1343 and 1349, and (2) the forfeiture provisions of their sentences.

The Court considered two issues: whether the indictment was in effect improperly amended, and whether the forfeitures as imposed were contrary to the recent Supreme Court decision in Honeycutt v. United States.

The Court easily answered the first question.  Although the indictment in many ways resembled a conspiracy indictment under 18 U.S.C. § 371, it properly charged conspiracy to commit wire fraud in violation of 18 U.S.C. §§ 1343 and 1349.  Thus, there was no amendment.  And any problematic language was mere surplusage. 

The second question was more difficult.  But ultimately the Court found that the district court erred in imposing what was effectively a joint and several forfeiture order.  The Court held that Honeycutt, which involved 21 U.S.C. § 853, applies to 18 U.S.C. § 981 because the differences between the two statutes are immaterial in light of Honeycutt’s reasoning and language.  Thus, as a matter of forfeiture, each conspirator could only be held liable for his share. "The forfeiture judgments must be separate, for the approximate separate amounts that came to rest with each of them after the loot was divided among the swindlers."