4/29/21: Lengthy decision on competency commitments under 18 U.S.C. § 4241(d)

In United States v. Quintero, --- F.3d ---, No. 19-10300 (9th Cir. 2021), the Court affirmed the district court’s order committing Sonia Quintero, who was found incompetent to stand trial on federal drug charges, to the custody of the Attorney General pursuant to 18 U.S.C. § 4241(d) for inpatient assessment of her potential for restoration to competency.

Quintero argued that the district court should have ordered evaluation and treatment in an outpatient facility and that her commitment violates her statutory and constitutional rights.   She raised seven distinct challenges to her mandatory inpatient commitment under § 4241(d). She argued: (1) § 4241(d) grants the district court discretion to order a specific form of treatment, and the policies of the Attorney General and Bureau of Prisons (BOP) violate the Constitution; mandatory commitment violates (2) due process,(3) equal protection, (4) fundamental fairness, (5) the Sixth Amendment, and (6) the Eighth Amendment; and (7) mandatory commitment discriminates on the basis of disability in violation of the Rehabilitation Act and the Americans with Disabilities Act

The Court rejected all of these claims and held that § 4241(d) mandates that district courts commit mentally incompetent defendants to the custody of the Attorney General for treatment, without discretion for the court to order a particular treatment.

Of note, the opinion contains helpful language on the liberty interest of pretrial defendants.  For instance, "we recognize that a pretrial defendant has a significant liberty interest in avoiding pretrial confinement, including civil commitment."

4/27/21: Nevada Revised Statutes § 453.337 is divisible

In United States v. Figueroa-Beltran, --- F.3d ---, No. 16-10388 (9th Cir. 2021), the Court affirmed a sentence for being a deported alien found unlawfully in the United States in violation of 8 U.S.C. § 1326. 

This is a case under the old version of 2L1.2.  The Court held:

Based on the guidance provided by the Nevada Supreme Court in response to our certification of questions, we hold that Figueroa-Beltran’s conviction for possession of cocaine in violation of NRS § 453.337, a divisible statute, supported the sixteen-level enhancement applied by the district court. 

We reject Figueroa-Beltran’s challenges to his sentence and term of supervised release. The district court did not err in declining to reduce Figueroa-Beltran’s sentence due to proposed amendments to the Sentencing Guidelines. The district court also imposed a procedurally and substantively reasonable sentence at the low end of the guidelines range, and properly ordered three years of supervised release as an added measure of deterrence.

4/26/21: government does not violate equal protection by prosecuting illegal border crossings on the normal criminal docket

In United States v. Ayala-Bello, --- F.3d ---, No. 19-50366 (9th Cir. 2021), the Court affirmed misdemeanor convictions for attempting to enter the United States illegally in violation of 8 U.S.C. § 1325(a)(1).

Section 1325 creates, among other crimes, a misdemeanor, petty offense for illegal entry into the United States.  The USAO for the Southern District of California prosecutes these offenses on the normal criminal docket.

However, it prosecutes all other petty offenses through the federal courts’ Central Violations Bureau (CVB) process, under which defendants charged with petty offenses generally receive lighter punishment.

On appeal, Ayala-Bello argued the disparate treatment violated equal protection. The Court disagreed.  Applying rational-basis review, the Court concluded that the government’s decision to prosecute first-time illegal entry separately from other petty offenses passes constitutional muster.

Judge Watford concurred to state his view that, "[i]n another case, the government could well violate the equal protection guarantee by targeting subgroups of criminal defendants based on their alienage."

One other point to consider: Although the defendants here did not prevail, in my opinion, this case illustrates the importance of having robust, creative, and zealous federal public defender offices.  

This case was briefed and argued by Kara Hartzler at FDSDI.  Time and again, FDs throughout the country push issues on cases that might otherwise go overlooked.  Our system, and everyone in it, benefits from their advocacy.  As Judge Berzon wrote in United States v. Brown, 785 F.3d 1337, 1348 n.5 (9th Cir. 2015), “federal public defenders . . . typically provide the highest quality representation[.]" 

4/23/21: Two Covid-based, speedy trial act decisions

First, in United States v. Olsen, --- F.3d ---, No. 20-50329 (9th Cir. 2021), the Court reversed the dismissal of an indictment based on an alleged speedy-trial act violation.  

The Court explained: "After the Central District of California suspended jury trials due to the COVID-19 pandemic in March 2020, Olsen invoked, for the first time, his right to a speedy trial. Because jury trials were suspended, the government requested a continuance of Olsen’s trial under 18 U.S.C. § 3161(h)(7)(A)—the Speedy Trial Act’s 'ends of justice' provision. The district court denied the request and, ultimately, dismissed the charges against Olsen with prejudice, concluding that continuances under the ends of justice provision are appropriate only if holding a criminal jury trial would be impossible. Because the district court erred in its reading of 18 U.S.C. § 3161(h)(7)(A), we reverse with instructions to reinstate Olsen’s indictment, grant an appropriate ends of justice continuance, and set this case for trial."

"We are asked to provide guidance on the application of the Speedy Trial Act’s ends of justice provision, 18 U.S.C. § 3161(h)(7)(A), in the context of the challenges presented by the COVID-19 pandemic."

"It is true 'that the ends of justice exclusion . . . was intended by Congress to be rarely used, and that the provision is not a general exclusion for every delay.' But surely a global pandemic that has claimed more than half a million lives in this country, and nearly 60,000 in California alone, falls within such unique circumstances to permit a court to temporarily suspend jury trials in the interest of public health." 

Here is the Court's conclusion: 

We reverse the district court’s dismissal of Olsen’s indictment. The district court’s interpretation of the Speedy Trial Act’s ends of justice provision—that continuances are appropriate only if holding a criminal jury trial would be impossible—was incorrect. Nothing in the plain text of the Speedy Trial Act or our precedents supports this rigid interpretation. 

We are, however, mindful that the right to a speedy and public jury trial provided by the Sixth Amendment is among the most important protections guaranteed by our Constitution, and it is not one that may be cast aside in times of uncertainty. 

The Central District of California did not cast aside the Sixth Amendment when it entered its emergency orders suspending jury trials based on unprecedented public health and safety concerns. To the contrary, the orders make clear that the decision to pause jury trials and exclude time under the Speedy Trial Act was not made lightly. The orders acknowledge the importance of the right to a speedy and public trial both to criminal defendants and the broader public, and conclude that, considering the continued public health and safety issues posed by COVID-19, proceeding with such trials would risk the health and safety of those involved, including prospective jurors, defendants, attorneys, and court personnel. The pandemic is an extraordinary circumstance and reasonable minds may differ in how best to respond to it. The District Court here, however, simply misread the Speedy Trial Act’s ends of justice provision in dismissing Olsen’s indictment with prejudice.

Relatedly, in United States v. Torres, --- F.3d ---, No. 21-50006 (9th Cir. 2021), the Court considered "the limits that federal law and the Constitution place on holding an accused person in detention solely for the purpose of awaiting trial."  

"Paul Francisco Torres III has been detained awaiting trial since August 26, 2019. His trial has been delayed and his detention prolonged as a result of the district court’s findings that the “ends of justice” served by avoiding the serious public health risks presented by holding a trial during the COVID-19 pandemic outweighed Torres’s right to a speedy trial. Torres now appeals the district court’s denial of his motion for release from pretrial detention. Torres does not dispute that his trial was rightfully delayed as a result of the COVID-19 pandemic pursuant to the ends-of-justice provision. Instead, he argues that the district court erred in concluding that because the ends of justice justified delaying his trial, the ends of justice necessarily justified prolonging his pretrial detention. According to Torres, a continuance that results in extending a defendant’s pretrial detention requires a 'significantly different' ends-of-justice analysis under the Speedy Trial Act. Alternatively, Torres asserts that due process mandates his release because the length of his pretrial detention exceeds the limits of what due process can tolerate."

"We hold that Torres’s pretrial detention is consistent with the Speedy Trial Act. This holding is two-fold. First, we conclude that because the plain text of § 3161(h)(7) requires consideration of the best interest of the defendant in a speedy trial, an ends-of-justice analysis will necessarily include consideration of whether the defendant is detained. Second, we conclude that § 3164(b) unambiguously provides that time properly excluded under § 3161(h) is properly excluded from § 3164. Because the record suggests that the district court considered Torres’s detention in granting the ends-of-justice continuances here, Torres’s pretrial detention was properly tolled under the Speedy Trial Act. We further conclude that due process does not yet require Torres’s release, but observe that the length of Torres’s pretrial detention is likely approaching the outer bounds of due process."

"It is undisputed that at some point, pretrial detention can 'become excessively prolonged, and therefore punitive,' resulting in a due process violation."

"On balance, we conclude that Torres’s twenty-one-month detention does not yet violate due process, but we caution that the length of Torres’s detention is approaching the limits of what due process can tolerate. The length of Torres’s pretrial detention is significant under any metric and is deeply troubling. But the lack of any prosecutorial contribution to the delay and the strength of the evidence supporting Torres’s detention lead us to conclude that Torres’s detention is rationally connected to a regulatory purpose—preventing danger to the community and ensuring Torres will appear as required."

Again, here is the conclusion:

We affirm the district court’s conclusion that time properly excluded under the § 3161(h)(7)(A) ends-of-justice provision is expressly excluded from the ninety-day detention clock in § 3164 pursuant to § 3164(b). Because the ends-of-justice provision under § 3161(h)(7) requires consideration of the defendant’s interest in a speedy trial, a detained defendant’s status must be considered before a continuance of trial is granted. Accordingly, once a district court properly excludes time from the trial clock under the ends-of-justice provision, that exclusion applies to the detention clock as well. The plain language of § 3161(h)(7) and § 3164(b) support this conclusion. 

We also affirm the district court’s conclusion that Torres’s detention does not, at this time, violate due process. Our decision to uphold the district court’s ruling, however, is not made lightly. Because of the troubling length of Torres’s pretrial detention, due process demands that the district court begin Torres’s trial or reconsider bail subject to appropriate conditions very soon.

4/19/21: Case on Assimilated Crimes Act

 In United States v. Do, --- F.3d ---, No. 19-30138 (9th Cir. 2021), the Court vacated convictions for two counts of unlawful use of a weapon (UUW) under Oregon law, Or. Rev. Stat. § 166.220(1)(a), which federal prosecutors assimilated into federal law by the Assimilative Crimes Act (ACA), 18 U.S.C. § 13(a).

"This appeal arises from a road rage incident on a highway in the Warm Springs Indian Reservation in central Oregon. Dat Quoc Do, who was a passenger in a car driven by his girlfriend, fired six shots in the air after a passenger in the car in front of him threw a plastic soda bottle at his car. Rather than charge Do under the federal assault statute, federal prosecutors invoked the Assimilative Crimes Act (“ACA” or “the Act”), 18 U.S.C. § 13(a), and assimilated into federal criminal law Oregon’s unlawful use of a weapon (“UUW”) statute, Or. Rev. Stat. § 166.220(1)(a). Do was tried and convicted in federal court of violations of Oregon law."

"The question before us is whether the government was permitted to borrow from Oregon law in this way. We conclude that it was not because assimilation is permitted only where necessary to fill gaps in federal criminal law on federal enclaves, and there was no such gap here."

"In determining whether the ACA assimilates a particular state criminal law, we apply the two-part test set out in Lewis v. United States. First, we ask whether the “defendant’s ‘act or omission [is] made punishable by any enactment of Congress.’” “If the answer to this question is ‘no,’ that will normally end the matter,” and the “ACA presumably would assimilate the statute.” Id. If, however, the answer to this first question is “yes,” we then ask a second question: “whether the federal statutes that apply to the ‘act or omission’ preclude application of the state law in question.” This second question is primarily one of legislative intent and requires us to probe whether the “applicable federal law indicate[s] an intent to punish conduct such as the defendant’s to the exclusion of the particular state statute at issue."

"Because Do’s conduct is punishable under the federal assault statute, we next ask whether that statute precludes application of Oregon’s UUW statute. We conclude that it does for three reasons: first, the federal assault statute and Oregon’s UUW statute “seek to punish approximately the same wrongful behavior,” Lewis, 523 U.S. at 165; second, the federal assault statute “reveal[s] an intent to occupy” the field of assault to the exclusion of Oregon’s UUW statute, id. at 164; and third, assimilating Oregon’s UUW statute into federal law would 'effectively rewrite an offense definition that Congress carefully considered.'"

4/13/21: Threats of sham litigation can amount to Hobbs Act Robbery

In United States v. Koziol, --- F.3d ---, No. 19-50018 (9th Cir. 2021), the Court affirmed a conviction for attempted extortion under the Hobbs Act, 18 U.S.C. § 1951(a), for threatening to file against an unnamed entertainer a suit asserting salacious and scandalous allegations if the entertainer didn’t settle for $1,000,000; vacated the sentence; and remanded for resentencing.

It is a very long opinion, but the Court's conclusion provides most of what you need to know: 

The Hobbs Act imposes criminal liability for extortion on those who obtain property from another by the “wrongful use of . . . fear.” 18 U.S.C. § 1951(a), (b)(2). We conclude that there is no statutory, constitutional, or policy basis to exclude categorically threats of sham litigation from liability under the Hobbs Act. Instead, we must consider the circumstances of such threats to determine if the means used were “wrongful” under the Act, or if the ends were “wrongful” because the defendant sought property to which he knew he had no lawful claim. We hold that Koziol’s threats of sham litigation were wrongful because sufficient evidence supported the jury’s verdict that he sought property to which he knew he had no lawful claim, and we affirm his conviction for attempted extortion under the Hobbs Act. 

As to the sentence, the Court found the district court plainly erred in failing to apply U.S.S.G. § 2X1.1—which provides guidelines for attempt offenses not otherwise covered by a specific offense guideline.  That provision instructs that the district court shall decrease the offense level by three for an attempted offense, “unless the defendant completed all the acts the defendant believed necessary for successful completion of the substantive offense or the circumstances demonstrate that the defendant was about to complete all such acts but for apprehension or interruption by some similar event beyond the defendant’s control.”

4/12/21: Big venue win

In United States v. Ghanem, --- F.3d ---, No. 19-50278 (9th Cir. 2021), the Court vacated a conviction for conspiracy to violate 18 U.S.C. § 2332g, which prohibits illicit dealings in guided surface-to-air missiles.

This case is all about venue for offenses committed overseas.  Congress has determined that the trial for such a crime “shall be in the district in which the offender . . . is arrested or is first brought.” 18 U.S.C. § 3238.

Here, Ghanem was arrested in Greece and first brought to the E.D.N.Y.  He was then taken to the C.D. Ca., where the trial took place. 

The Court held that Ghanem waived his right to challenge venue under Rule 29 because he did not bring a pre-trial motion on that ground.  But that does not mean he waived his right to a proper jury instruction on venue: "waiver of venue does not preclude his separate jury instruction challenge"  And because the district court gave an erroneous jury instruction, the Court vacated the subject conviction along with the 25-year mandatory minimum it carried.  

There is a lot to this opinion.  It is not easy to summarize.  The Court creates a new test for determining whether an arrest is "in connection with" a charged offense.  This, in turn, matters for the venue determination.  

If you have a case with an offense committed overseas, this opinion is a must read. 

4/8/21: Ninth Circuit concludes 1B1.13 is not binding (compassionate release)

 In United States v. Aruda, --- F.3d ---, No. 20-10245 (9th Cir. 2021), the Court joined its sister circuits to conclude the current version of § 1B1.13 is not an “applicable policy statement[] issued by the Sentencing Commission” for motions filed by a defendant under 18 U.S.C. § 3582(c)(1)(A).

The Court reversed the district court's denial of Aruda's motion for compassionate release noting, "after the district court’s decision here, five other circuits have addressed this issue and have unanimously held that U.S.S.G. § 1B1.13 only applies to § 3582(c)(1)(A) motions filed by the BOP Director, and does not apply to § 3582(c)(1)(A) motions filed by a defendant."

"As explained by the Fourth Circuit, '[t]here is as of now no ‘applicable’ policy statement governing compassionate-release motions filed by defendants under the recently amended § 3582(c)(1)(A), and as a result, district courts are ‘empowered . . . to consider any extraordinary and compelling reason for release that a defendant might raise.'"