5/27/21: emergency exception

In United States v. Holiday, --- F.3d ---, No. 20-50157 (9th Cir. 2021), the Court affirmed the convictions and 85-year mandatory minimum sentence for 10 robberies.

On appeal, Holiday raised a host of issues, most of which the Court rejected with brief analysis. 

 

The one issue that got considerable attention was Holiday’s claim that the district court erred in failing to suppress body camera footage during an unrelated police encounter at his home in connection with a report of child abuse in a vehicle.

 

The Government conceded that, when officers opened the front door of the home without permission, this constituted a warrantless search.  The government argued, however, that the warrantless search was constitutional under the emergency exception to the warrant requirement.

 

The Court rejected this argument, holding that the officers’ conduct did not fall within the scope of the emergency exception to the warrant requirement because the officers had no reason to believe that the child victim was in the home at the address where the vehicle was registered.

 

“The officers had no reason to believe that the child victim was in the home at the address where the [vehicle] was registered. In fact, they had reason to believe the child was not in the home, since the tip they received was that the child was in a [vehicle]. The Government appears to adopt the district court’s finding that “there ‘was no indication that the [incident] in the [vehicle] had ended’” when officers arrived at the residence. If the incident in the [vehicle] had not ended, it was clearly unreasonable for the officers to have believed that the victim of the reported crime was inside Holiday’s residence. In order to show that ‘the search’s scope and manner were reasonable to meet the need,’ the Government must provide a logical and sound link between the information police have and the search they conduct. The Government has failed to do so here.”

 

Nevertheless, the Court concluded the error in admitting the body camera evidence was harmless and affirmed. 

5/24/21: SCOTUS Ruling on 1326(d)

Today in United States v. Palomar-Santiago, --- F.3d ---, No. 20-437 (2021), the Supreme Court overruled longtime Ninth Circuit precedent in the 1326(d) context. 

Section 1326(d) provides:

“In a criminal proceeding under this section, an alien may not challenge the validity of the deportation order . . . unless the alien demonstrates that— “(1) the alien exhausted any administrative remedies that may have been available to seek relief against the order; “(2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and “(3) the entry of the order was fundamentally unfair.” 8 U. S. C. §1326(d). 

Under Ninth Circuit law, until today, defendants were “excused from proving the first two requirements” of §1326(d) if they were “not convicted of an offense that made [them] removable.”  For instance, if the person was removed for an offense that the IJ thought was an aggravated felony, but it was not actually an aggravated felony, the first two requirements were satisfied.  

The Supreme Court rejected this interpretation: "The Ninth Circuit’s interpretation is incompatible with the text of §1326(d)."

The Court continued: "the substantive validity of the removal order is quite distinct from whether the noncitizen exhausted his administrative remedies (by appealing the immigration judge’s decision to the BIA) or was deprived of the opportunity for judicial review (by filing a petition for review of a BIA decision with a Federal Court of Appeals)."

"The Court holds that each of the statutory requirements of §1326(d) is mandatory."

So, for 1326(d) motions going forward, if your client did not exhaust, this is going to be a problem.  But don't miss footnotes 2 and 4: 

Footnote 2 says:

Palomar-Santiago separately argues that the offense defined by §1326(a) includes as an element the defendant’s previous lawful removal such that unlawful removals cannot support a conviction. United States v. Mendoza-Lopez, 481 U. S. 828, 834–835 (1987), rejected a similar argument with respect to the pre-AEDPA version of §1326(a). Palomar-Santiago now presses various distinctions between that case and this, but the Court declines to address his arguments, which were neither raised below nor fairly encompassed by the question presented to this Court. See Brownback v. King, 592 U. S. ___, ___, n. 4 (2021) (slip op., at 5, n. 4).

Footnote 4 says:

Palomar-Santiago argues that “a scheme that permits the results of an administrative proceeding to conclusively establish a criminal offense” raises “due process and separation of powers problems,” which are “heightened when . . . the agency never had the authority to issue the order in the first instance.” Brief for Respondent 15. The parties also strongly disagree about the sufficiency of the paths available for noncitizens to obtain review of prior removal orders outside of an illegal reentry prosecution. To the extent Palomar-Santiago raises freestanding constitutional claims on these bases, they were not raised below and are outside the scope of the narrow question this Court granted certiorari to decide. 

Thus, these arguments are still available.  

5/21/21: Big news on Safety Valve

 In United States v. Lopez, --- F.3d ---, No. 19-50305 (9th Cir. 2021), the Court affirmed the district court's (Judge Lorenz of the SDCA) interpretation of the amended safety valve provision. 

[The safety-valve provision allows a district court to sentence a criminal defendant below the mandatory minimum for particular drug offenses if a defendant meets the criteria in § 3553(f)]

In the First Step Act of 2018, Congress amended § 3553(f)(1), which focuses only on a criminal defendant’s prior criminal history as determined under the United States Sentencing Guidelines. 

As amended, § 3553(f)(1) provides that a defendant does not qualify for safety valve relief if he or she has: “(A) more than 4 criminal history points . . . (B) a prior 3-point offense . . . and (C) a prior 2-point violent offense.” 

The Court held that § 3553(f)(1)’s “and” is unambiguously conjunctive.  That means, unless the defendant has all three -- more than 4 criminal history points, a prior 3-point offense, and a prior 2-point violent offense -- he or she is eligible for safety valve. 

The government argued that a defendant must meet the criteria in only subsection (A), (B), or (C) before he or she is barred from safety-valve relief.  The Court rejected this contention: "we hold that 'and' means 'and.'"

In sum, § 3553(f)(1)’s plain meaning, the Senate’s own legislative drafting manual, § 3553(f)(1)’s structure as a conjunctive negative proof, and the canon of consistent usage lead to only one plausible reading of “and” here. Section 3553(f)(1)’s “and” is conjunctive. Thus, a defendant must meet the criteria in subsections (A) (more than four criminal-history points), (B) (a prior three-point offense), and (C) (a prior two-point violent offense) to be barred from safety-valve relief by § 3553(f)(1). This means one of (A), (B), or (C) is not enough. A defendant must have all three before § 3553(f)(1) bars him or her from safety-valve relief.

5/20/21: Vagueness challenge to supervised release conditions

 In United States v. Gibson, --- F.3d ---, No. 20-10074 (9th Cir. 2021), the Court affirmed two conditions of supervised release—a place restriction and a third-party risk notification condition—in a case in which the defendant was convicted of receipt or distribution of child pornography in violation of 18 U.S.C. § 2252A(a)(2).

First, Gibson raised a vagueness challenge to a condition that prevented him from going to “any place primarily used by children under the age of 18, including parks, schools, playgrounds and childcare facilities.”  The Court  held the condition was sufficiently clear to provide  notice of what types of places Gibson was forbidden to visit:  "The phrase 'primarily used by children' is not indeterminate. It means a place chiefly and for the most part used by children. Even if it may not be entirely clear whether a particular place is primarily used by children, that does not render the condition unconstitutionally vague."

Next, the court rejected Gibson's challenge to a standard term allowing the probation officer to require Gibson to notify third parties about any risk he might pose to others.  Because the risk was limited only to those posed by his criminal record and nothing else, the term was not unconstitutionally vague.

5/12/21: Two criminal decisions from the Ninth: 4th Amend / Terry and Wartime Suspension of Limitations Act

First, in United States v. Brown, --- F.3d ---, No. 19-50250 (9th Cir. 2021), the Court reversed the denial of Brown's motion to suppress the fruits of a search of his pocket and his subsequent conviction for possession of 35.35 grams of heroin with intent to distribute.

This case is all about Terry stops and the limits of protective searches.  Based on all the circumstances, the Court concluded the officer had reasonable suspicion for the stop.  But the subsequent search exceeded Terry.  The key point is that, the officer did not perform any pat down or other initial limited intrusion but instead proceeded directly to extract and examine an item in Brown’s pocket. 

We conclude that the officers complied with Terry and its progeny in all respects except one: in conducting the limited protective search for weapons that Terry authorizes, the officer here did not perform any patdown or other initial limited intrusion but instead proceeded directly to extract and examine an item in Brown’s pocket. We conclude that, under Sibron v. New York, 392 U.S. 40 (1968)—a companion case to Terry that was decided the same day—the officer’s search of Brown’s pocket exceeded the limited scope of what Terry permits and was therefore unreasonable under the Fourth Amendment.

The Court also noted: "Merely sitting next to a vehicle in a motel parking lot does not, without more, give rise to reasonable suspicion of loitering or any other crime."

Second, in United States v. Nishiie, --- F.3d ---, No. 19-10405 (9th Cir. 2021), the Court reversed the district court’s order dismissing as time barred seven non-conspiracy criminal counts, and remanded for further proceedings, in a case in which the indictment alleges that Duane Nishiie engaged in a scheme seeking payments in exchange for steering the award of Department of Defense contracts for infrastructure, engineering, and construction projects in Korea.

This is a long opinion about statutory construction.  The Court framed the issue as follows:

This appeal raises a question of first impression: which of the three categories of offenses under the Wartime Suspension of Limitations Act (“WSLA”), 18 U.S.C. § 3287—fraud, property, or contract—is modified by a clause requiring a nexus between the charged criminal conduct and a specific, ongoing war or congressional authorization of military force. If the WSLA’s war nexus clause—“which is connected with or related to the prosecution of the war or directly connected with or related to the authorized use of the Armed Forces”—applies, then the criminal charges against Duane Nishiie are time barred. 

The Court held: "Based upon the WSLA’s text, history, and context, however, we hold that the war nexus clause modifies only the third offense category—not at issue here. Accordingly, we reverse the district court’s dismissal of Nishiie’s seven criminal counts and remand for further proceedings."

In very short, this means that, under the Wartime Suspension of Limitations Act, the statute of limitations is tolled for fraud and property offenses against the U.S. regardless of whether there is a nexus between the charged criminal conduct and a specific, ongoing war or congressional authorization of military force.  

As the Court explained, "We are acutely aware—and somewhat concerned—that this interpretation, while legally correct, may effectively toll the statute of limitations for offenses under the WSLA for 20, 30, even 40 plus years. In large part that results from the expansion of war powers far beyond what they were when the WSLA was codified in 1948. Any policy concern for subjecting defendants to decades-long liability is subordinated to the WSLA’s unambiguous language."

5/3/21: Two criminal decisions today

First, in United States v. Singh, --- F3d ---, No. 18-50423 (9th Cir. 2021), the Court affirmed Harinder Singh’s convictions and sentence for conspiracy to launder money (18 U.S.C. § 1956(h)), conspiracy to operate an unlicensed money transmitting business (18 U.S.C. § 371), and operating such a business (18 U.S.C. § 1960), stemming from Singh’s involvement in a hawala operation, a money transmitting network that he and his coconspirators used to move drug trafficking proceeds from Canada to the United States and eventually to Mexico.

This is a split opinion, with Judge Watford dissenting in part. 

The decision is fact heavy, focusing on sufficiency of the evidence challenges. But if you have a money laundering case, it is worth the read.  

Second, in United States v. Peterson, --- F.3d ---, No. 19-10246 (9th Cir. 2021), the Court also affirmed. 

Although the district court did not explain all the elements of the crime during the Rule 11 colloquy, the Court found no error because the plea agreement tracked the language of the statute. 

The Court also found no Fourth Amendment violations from the search of Mr. Peterson's cell phones because he was on parole with a 4th waiver.