6/29/21: § 1325(a)(1) does not violate the non-delegation doctrine, and is not unconstitutionally vague

In United States v. Melgar-Diaz, --- F.3d ---, No. 20-50010 (9th Cir. 2021), the Court affirmed misdemeanor convictions for entering the United States from Mexico at a time or place other than as designated by immigration officers, in violation of 8 U.S.C. § 1325(a)(1).

The Court held that § 1325(a) does not unconstitutionally delegate legislative power.  

It explained: "Defendants interpret § 1325(a)(1) to permit any immigration officer, with no governing standards, to designate the times and locations when aliens may lawfully enter the United States. In their view, it is the immigration officers’ choice of where to place the legal points of entry that creates the crime. That choice, they claim, lacks any guiding principle because nothing would prevent immigration officers from designating either all or none of the border as a permissible place of entry."

The Court concluded: "Defendants misperceive both the statute and the nondelegation question. Section 1325(a)(1) does not give immigration officials the power to create crimes. Congress instead penalized a particular type of conduct: it is a crime to enter the United States unless an alien presents himself for inspection at an approved time and place. Congress left for the Executive Branch merely the interstitial task of determining those times and places, substantially similar to a law that prohibited crossing the street outside a crosswalk but delegated the power to decide where on the streets the crosswalks should be striped. Congress conferring that type of ministerial authority in § 1325(a)(1) does not present a non-delegation concern."

The Court also rejected both facial and as-applied vagueness challenges to the statute. 

6/23/21: Case on prosecutorial misconduct in closing argument regarding reasonable doubt

 In United States v. Velazquez, --- F.3d ---, No. 19-50099 (9th Cir. 2021), the Court vacated a conviction for importing controlled substances. 

This was a deny-knowledge border bust trial.  During closing argument, the prosecutor compared the reasonable doubt standard to the confidence one needs to “hav[e] a meal” or “travel to . . . court”—without worrying about the “possib[ility]” that one will get sick or end up in an accident.

Defense counsel objected.   On appeal, Velazquez argued that, despite the court’s instruction regarding reasonable doubt, the prosecutor trivialized the standard during closing argument and substantially prejudiced him. 

The panel majority agreed.  

Lots of helpful language:

• "A prosecutor’s misstatements of law during closing argument provide grounds for reversal."

• Here, we conclude the prosecutor engaged in misconduct by trivializing the reasonable doubt standard and, as a result, caused Velazquez substantial prejudice. We further conclude that the court failed to neutralize the prejudice.

• In a criminal trial, “no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof— defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense.” Jackson v. Virginia, 443 U.S. 307, 316 (1979). This standard of proof is “indispensable” to our criminal justice system and preserves three distinct interests. In re Winship, 397 U.S. 358, 364 (1970). First, it protects the defendant’s interest in being free from unjustified loss of liberty and the stigmatization that results from conviction. Id. at 363. Second, it engenders community confidence in the administration of justice by giving “concrete substance” to the presumption of innocence. Id. at 363–64. Third, it ensures “that the moral force of the criminal law [is not] diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.” Id. at 364. Thus, for a jury to convict a defendant under this high burden of proof, the jury must “reach a subjective state of near certitude of the guilt of the accused.” 

• In the final moments of a trial, the government’s principal purpose is to persuade the jury it has met its burden to show guilt beyond a reasonable doubt. Even against this high burden, however, a prosecutor, as a representative of the government, wields considerable influence over a jury. See Berger v. United States, 295 U.S. 78, 88 (1935). With this power, a prosecutor can easily mislead the average juror into adopting his or her personal view of the law, even when that view diverges from the court’s own instruction. See id.; see also United States v. Parr-Pla, 549 F.2d 660, 662 (9th Cir. 1977) (per curiam) (“It is the duty of the court, not counsel, to advise the jury as to the law . . . .”). Because jurors can be swayed by such mischaracterizations, a prosecutor must be especially wary of making any comments that could, in effect, reduce its burden of proof.

• The prosecutor compared the reasonable doubt standard to making decisions like going for a drive or eating a meal—with the confidence that things will not go awry. Such decisions involve a kind of casual judgment that is so ordinary and so mundane that it hardly matches our demand for “near certitude” of guilt before attaching criminal culpability.

• We are also troubled by the suggestion that reasonable doubt can be compared to an “everyday” experience. The process of adjudicating guilt is a major and meticulous undertaking.

• Although the district court initially instructed the jury to follow its instruction on reasonable doubt and “not as to what any attorney says the standard of reasonable doubt is,” the prosecutor then provided numerous improper examples that served to reduce the government’s burden of proof—all without further admonishment. And the district court overruled defense counsel’s second objection after the prosecutor, during his rebuttal, rehashed an identical argument that reasonable doubt was something the jurors used “every single day.”

• By overruling the objection, the court naturally left the jurors with the impression that the prosecutor’s comparison of the reasonable doubt standard to an “everyday” judgment, and that the specific examples the prosecutor furnished, were proper. Moreover, the prosecutor’s distortion of the standard was among the last things the jury heard before they began deliberations, further exacerbating our concerns.

• In sum, the ultimate issue at trial boiled down to whether the government proved that Velazquez knew about the drugs in his car beyond a reasonable doubt. Reasonable doubt was the central theme of his defense. The prosecutor’s comments, however, created an unacceptable risk that an honest, fair-minded juror would succumb to the prosecutor’s personal—rather than constitutional—view of the government’s burden of proof to obtain a conviction and therefore overlook his or her reasonable doubts. Because the evidence demonstrating Velazquez’s knowledge was not overwhelming, and the district court failed to neutralize the prejudice, we conclude “that it is more probable than not that the misconduct materially affected the verdict.” 

• Also helpful:  Further, as we have recognized, evidence about a defendant’s nervousness provides limited objective value and does not even create reasonable suspicion to detain a person, let alone affirm a conviction.

6/21/21: firearms enhancements

In United States v. Parlor, --- F.3d ---, No. 19-30269 (9th Cir. 2021), the Court affirmed a sentence for unlawful possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). 

A divided panel held that the district court properly imposed three sentencing enhancements: a two-level enhancement under U.S.S.G. § 2K2.1(b)(1)(A) because the “offense involved” three to seven firearms that were “unlawfully possessed;” a two-level enhancement under § 2K2.1(b)(4)(A) because one of the firearms had been reported stolen; and a four-level enhancement under § 2K2.1(b)(6)(B) for possessing firearms “in connection with another felony offense, drug trafficking.

As to the enhancement for Parlor’s possession of five firearms, he argued "that the district court erred in imposing the multiple-firearms enhancement because the three firearms found during the searches of his house and storage unit were not sufficiently connected to his earlier possession of the two firearms for which he was charged. He points specifically to the eleven-week interval between the sale of two firearms during the controlled buy and the searches that yielded the three additional firearms."

The majority found the different incidents of possession were "relevant conduct" and "that the interval between the possession of the different firearms does not undermine their relatedness."

"[T]he eleven-week span here easily meets the standard for relevant conduct for multiple firearm possessions by a person not allowed to possess them."

The majority also rejected Parlor's argument that there was insufficient evidence showing that the handgun was stolen.

The majority further affirmed the imposition of "a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) because Parlor possessed a firearm in connection with the felony offense of drug trafficking. This determination was based on the (uncharged) revolver that was found near the drugs and other drug paraphernalia in Parlor’s house and, additionally, on the CI’s statement about previously purchasing drugs from Parlor in exchange for a gun."

Finally, the majority concluded the district court did not plainly err in failing to use a heightened clear and convincing standard at sentencing. 

6/11/21: 404(b) decision worth reading

In United States v. Charley, --- F.3d ---, No. 19-10133 (9th Cir. 2021), the Court affirmed Charley’s conviction on one count of making false statements to a government official, but vacated her convictions on two counts of assault within the territorial jurisdiction of the United States. 

As to the false statements, the case is interesting because "[t]he district court instructed the jury, in relevant part, that the Government carried the burden to prove that Charley 'acted deliberately and with knowledge both that the statement was untrue and that her conduct was unlawful.'"  

Although "the 'willfulness' standard in this instruction 'arguably requires more than necessary under § 1001,' [the government] concedes that 'it is bound by' the standard because the instruction was given to the jury."  

[This could be helpful for other cases].

As to the assault convictions, the Court vacated them on the basis of improperly admitted Rule-404(b) evidence.  And there is lots of very good language on both Rule 404(b) and 405(b).  Here is some of it:

• Rule 404 of the Federal Rules of Evidence prohibits evidence about a defendant’s character trait to prove that the defendant committed the charged crime when he acted in accordance with that character trait. The rule is rooted in the “basic premise of our criminal justice system” that “[o]ur law punishes people for what they do, not who they are.” Buck v. Davis, 137 S. Ct. 759, 778 (2017) (Roberts, C.J.). Courts, as gatekeepers of evidence, are tasked with ensuring that a jury convicts a defendant based only on his alleged conduct and mental state underlying the charged crime, not based on his generalized disposition or tendency to act in a particular way—however offensive his behavior may have been in the past.  

•  Charley’s propensity for violence is not dispositive to the success of her self-defense claim; it therefore fails to constitute “an essential element” under Rule 405(b). 

• Specific instances of prior conduct offered to prove one’s character “possesses the greatest capacity to arouse prejudice, to confuse, to surprise, and to consume time,” so “the rule confines the use of evidence of this kind to cases in which character is, in the strict sense, in issue and hence deserving of a searching inquiry.” Advisory Committee Notes, Fed. R. Evid. 405. Although Charley’s testimony about Begay may have opened the door to general reputation or opinion testimony about her propensity for violence under Rule 405(a), she did not open the door to detailed descriptions of “specific instances of conduct” that were completely unrelated to Begay to show that she has a propensity for violence under Rule 405(b).

• It is well-established that evidence of a prior crime, wrong, or incident “is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” Fed. R. Evid. 404(b)(1). “The rule is designed to avoid a danger that the jury will punish the defendant for offenses other than those charged, or at least that it will convict when unsure of guilt, because it is convinced that the defendant is a bad man deserving of punishment.” 

• “Courts must be extremely careful to guard against the danger that defendants will be convicted because they have previously committed a [prior] serious criminal offense rather than because the Government has introduced evidence sufficient to prove beyond a reasonable doubt that they are guilty of the offense for which they are being tried.” 

• [T]here is no logical connection between those prior incidents and the charged assault other than the implication that Charley has a propensity for violence and was therefore the aggressor on the occasion here—an impermissible inference under Rule 404(b) and an improper consideration when determining whether self-defense was established.

• “[P]rior bad act evidence is allowed to show motive only when motive is in turn relevant to establish an element of the offense that is a material issue.” Brown, 880 F.2d at 1014. But “[t]he prior wrongful acts must establish a motive to commit the crime charged, not simply a propensity to engage in [violence].”

• Even where evidence of other acts is admissible, it is impermissible for the Government to argue that such evidence reflects the defendant’s character

6/10/21: SCOTUS decision on ACCA predicates

In Borden v. United States, 593 U.S. ____ (2021), the Court considered whether, under ACCA, a criminal offense can count as a “violent felony” if it requires only a mens rea of recklessness—a less culpable mental state than purpose or knowledge.  The Court held that a reckless offense cannot so qualify.

This was a 4-4 decision, with Justice Thomas concurring with the majority of Justices Kagan, Breyer, Sotomayor, and Gorsuch. 

The Court began "by setting out four states of mind, as described in modern statutes and cases, that may give rise to criminal liability. Those mental states are, in descending order of culpability: purpose, knowledge, recklessness, and negligence." 

It then turned to the issue: 

We must decide whether the elements clause’s definition of 'violent felony'—an offense requiring the “use of physical force against the person of another”—includes offenses criminalizing reckless conduct. We hold that it does not. The phrase “against another,” when modifying the “use of force,” demands that the perpetrator direct his action at, or target, another individual. Reckless conduct is not aimed in that prescribed manner. Our reading of the relevant text finds support in its context and purpose. The treatment of reckless offenses as “violent felonies” would impose large sentencing enhancements on individuals (for example, reckless drivers) far afield from the “armed career criminals” ACCA addresses—the kind of offenders who, when armed, could well “use [the] gun deliberately to harm a victim.

6/9/21: Leadership and Guardian sentencing enhancements

In United States v. Harris, --- F.3d ---, No. 19-30202 (9th Cir. 2021), a divided panel vacated Harris’s sentence for sexually abusing the daughter of his girlfriend. 

The majority held that, because there was no evidence Harris exercised control over his girlfriend, the district court abused its discretion in applying a leadership enhancement under U.S.S.G. § 3B1.1(c).  This was true despite the fact that "Harris did play a central role in the offense by committing the offense himself and by working with [his girlfriend] as she committed the offense, but playing a central role is not sufficient to trigger the enhancement."

The majority also concluded the district court erred in applying a “guardian” enhancement under U.S.S.G. § 2G2.1(b)(5). It explained that Harris—who was not CV’s parent, didn’t act as her legal guardian, and knew CV for less than two months—was never entrusted with parent-like authority and never acted in loco parentis.  Thus, the enhancement did not apply.

6/3/21: Supervised release and the Sixth Amendment

 In United States v. Henderson, --- F.3d ---, No. 19-30209 (9th Cir. 2021), a divided panel affirmed a supervised release revocation sentence.  

Henderson was convicted of felon in possession of a firearm and sentenced to 117 months.  The statutory maximum for the offense was 120 months. 

After his release from custody, Henderson violated supervised release and was sentenced to an additional fifteen months.  He argued the sentence was unconstitutional under Apprendi because, taken together, the underlying sentence and the revocation sentence exceeded the original statutory maximum of 120 months. 

The majority, relying on prior Ninth Circuit precedent, held that "a term of supervised release may extend beyond the statutory maximum for the underlying substantive offense."  In so doing, it rejected the argument that "the terms of reimprisonment must be aggregated and may not exceed the maximum term of the statute of conviction." 

The dissent disagreed with the majority's analysis:  "In short, the majority has discovered a new form of stare decisis: this Court must decline to address a constitutional issue squarely presented because a prior panel did not address a constitutional issue never raised."