7/29/21: Competency case

In United States v. Telles, --- F.4th ---, No. 19-10218 (9th Cir. 2021), the Court affirmed convictions and the sentence for online enticement of a minor in violation of 18 U.S.C. § 2422(b), travel with intent to engage in illicit sexual conduct in violation of 18 U.S.C. § 2423(b), and engaging in illicit conduct in foreign places in violation of 18 U.S.C. § 2423(c).

Throughout the proceedings, defense counsel made six motions for a competency evaluation.  The district court denied them all, concluding Telles was malingering.  The Ninth affirmed: “[A] reasonable judge, faced with this record, would not have found it necessary to doubt [Telles’s] competency.”  

This case is a good reminder that, to get a competency evaluation under 18 U.S.C. § 4241, it is critical to show not only a mental-health issue, but also a direct connection between that issue and the client's ability to understand or assist.  As the Ninth Circuit put it,  “[e]ven a mentally deranged defendant is out of luck if there is no indication that he failed to understand or assist in his criminal proceedings.” 

The Court also affirmed the district court’s exclusion of Telles' proposed expert testimony: "The district court 'warned Mr. Telles that he risked forfeiting the opportunity to present his own expert or to present a mental disease or defect defense if he did not cooperate with the government’s expert.' Yet Telles proceeded to do exactly that."

Finally, the Court also affirmed the district court in: (1) denying Telles' motion to represent himself, (2) allowing the government to present expert testimony on the typical behaviors of sex offenders of child victims, and (3) imposing a sentencing enhancement under U.S.S.G. § 4B1.5(b)(1) for engaging in a pattern of activity involving prohibited sexual conduct. 

7/28/21: All about entrapment

In United States v. Gomez, --- F.4th ---, No. 19-50313 (9th Cir. 2021), a divided panel affirmed convictions and the sentence for conspiracy with intent to distribute at least 50 grams of methamphetamine, distribution of methamphetamine, and being a felon in possession of a firearm.

The primary issue on appeal was whether the district court erred in allowing the government to preemptively rebut an entrapment defense by presenting predisposition evidence in its case-in-chief.  The majority held it did not, explaining: 

• A defendant need not inform the court of his intent to invoke an entrapment defense. “A simple plea of not guilty puts the prosecution to its proof as to all elements of the crime charged, and raises the defense of entrapment.”

• Nor does the defendant have to present evidence to support the entrapment defense; rather, the defendant may rely on evidence presented by the government. In Sherman v. United States, for instance, the Supreme Court held that “entrapment was established as a matter of law” based solely on “the undisputed testimony of the prosecution’s witnesses.” 356 U.S. at 373. Similarly, we have explained that “[t]he evidence supporting the entrapment defense need not be presented by the defendant,” and that “[e]ven when a defendant presents no evidence of entrapment, it may nonetheless become an issue at his trial if (1) the Government’s case-in-chief suggests that the defendant who was not predisposed was induced to commit the crime charged, or (2) a defense or a government witness gives evidence suggesting entrapment.” 

• Because in our circuit a defendant can argue that he was entrapped, and may be entitled to an entrapment instruction, based solely on evidence introduced by the government, we do not have a per se rule precluding the government from rebutting an anticipated entrapment defense in its case in chief, because such a rule would be unfair. Said otherwise, a blanket rule “that no evidence of a predisposition to commit the crime and no proof of prior convictions may ever be introduced by the government except in rebuttal to affirmative evidence of entrapment adduced by defendant” would “work grave prejudice to the government,” because it would allow a defendant to invoke the defense without the government having had an opportunity to rebut it.

• Nevertheless, the government can introduce such evidence in only limited circumstances. We agree with the Second Circuit that evidence rebutting an anticipated entrapment defense “is admissible as part of the prosecution’s case in chief” only “where it is clear . . . that the [entrapment] defense will be invoked.” A defendant clearly indicates that he will invoke an entrapment defense when defense counsel “raise[s] the defense of entrapment during his opening statement,” when the entrapment defense materializes “through a defendant’s presentation of its own witnesses or through cross-examination of the government’s witnesses,” or when the defendant requests an entrapment instruction or tells the trial judge that he intends to invoke an entrapment defense"
  

In this case, the majority concluded that the district court permissibly allowed the government to present predisposition evidence in its case-in-chief, because it was sufficiently clear that Gomez would invoke an entrapment defense.

The majority also held that the district court did not err in admitting gang-affiliation evidence.  It reasoned: "when a defendant raises an entrapment defense, character, reputation, and lack of reluctance constitute 'essential elements' of the entrapment defense."  And "[b]ecause character evidence is both admissible and an essential element of an entrapment defense, it may be proved under Rule 405 of the Federal Rules of Evidence by reputation or opinion testimony, as well as by specific instances of conduct."

Next, the majority held that any error in allowing Gomez’s parole officer to testify at trial was harmless. 

Finally, the majority held the district court properly applied a two-level enhancement under § 2D1.1(b)(1) for possessing a dangerous weapon. 

The dissent argued that the trial court committed reversible error by allowing the government to present evidence to the jury in its case-in-chief to “rebut” an anticipated entrapment defense which was never presented by the defendant. 

---

7/26/21: Indictment sufficient over sovereign immunity challenge

In United States v. Pangang Group, --- F.4th ---, No. 19-10306 (9th Cir. 2021), the Court affirmed the district court’s denial of a motion by four Chinese companies to dismiss an indictment charging violations of the criminal provisions of the Economic Espionage Act.

The companies moved to dismiss the indictment against them, arguing they were “instrumentalities” of the government of China and were therefore entitled to sovereign immunity under the Foreign Sovereign Immunities Act (FSIA).  The district court denied the motion to dismiss. 

The Court allowed the interlocutory appeal from the denial of the motion to dismiss.  But the Court concluded that in moving to dismiss the indictment, the companies failed to carry their burden to make a prima facie showing that they are instrumentalities of a foreign sovereign within the meaning of the FSIA.

7/22/21: Two Ninth Circuit criminal decisions today

In United States v. Warren, --- F.4th ---, No. 20-10213 (9th Cir. 2021), the Court held that a judgment and commitment order was proper. 

"In a one-count superseding information, the government charged Defendant Jeremy Warren with 'VIOLATION: 18 U.S.C. § 1594(C) - CONSPIRACY TO ENGAGE IN SEX TRAFFICKING OF A CHILD IN VIOLATION OF 18 U.S.C. § 1591(A)(1), (B)(2).'"

Warren argued the judgment and commitment order must be amended to remove references to the underlying substantive offense, 18 U.S.C. § 1591(a)(1) and (b)(2).  

The Court disagreed. "It is axiomatic that, to be found guilty of a federal conspiracy, one must agree with at least one other person to commit a substantive federal offense. Thus, although the judgment is not required to pinpoint the statute defining the substantive offense that is the object of the conspiracy, neither is it error for the judgment to include such a reference." 

Final note, obviously, the Jeremy Warren from this case is not my law partner.  I promised him I would say this. 

Next, in United States v. Halamek, --- F.4th ---, No. 19-10366 (9th Cir. 2021), the Court affirmed a conviction for transporting a minor with intent to engage in criminal sexual activity in violation of 18 U.S.C. § 2423(a) (Count 1) and traveling with intent to engage in illicit sexual conduct in violation of 18 U.S.C. § 2423(b) (Count 2), affirmed the sentence on Count 1, vacated the sentence on Count 2, and remanded for resentencing.

The Court ruled that admission of expert testimony on "grooming" was proper: "Our circuit appears not to have addressed the probative nature of expert testimony about grooming for child sexual abuse in a published opinion. However, several other circuit courts of appeal have held that admitting such testimony is not an abuse of discretion because the testimony “illuminate[s] how seemingly innocent conduct . . . could be part of a seduction technique. We find the reasoning of the opinions of our sister circuits persuasive."

The Court also rejected Halamek's challenge to the admission of Rule 414 evidence of his prior molestations. 

Finally, the Court ruled on several sentencing claims and found that a criminal history calculation error was not plain error because the Guidelines would have been the same. "As described above, Halamek’s Guidelines range would have been the same had the district court applied the correct criminal history score of II. Therefore, we conclude that Halamek has not demonstrated plain error as to his criminal history points calculation."

7/16/21: 9th OKs substantially longer sentence on resentencing by a new judge & another case too

In United States v. Valdez-Lopez, --- F.4th ---, No. 20-10004 (9th Cir. 2021), the Court affirmed a new, longer sentence imposed following a successful motion under 28 U.S.C. § 2255 to set aside one of several counts on which he had been convicted.

Originally, the district court sentenced him to 240 months of imprisonment.  On resentencing, a new judge imposed 300 months based on the exact same information.  In other words, the new sentence was not based on additional crimes or misconduct in prison. 

The Ninth affirms:  "We conclude that no presumption of vindictiveness applies. Because Valdez-Lopez has not otherwise demonstrated vindictiveness, and because the second sentence was both procedurally and substantively reasonable, we affirm."

"Two features of Valdez-Lopez’s resentencing independently make the presumption of vindictiveness inapplicable here."

"First, the only reason a new sentencing occurred is that the district court itself granted Valdez-Lopez’s motion under section 2255 to set aside his first sentence . . . . We see no reason to presume that a judge would act vindictively in resentencing a defendant after determining that the defendant’s section 2255 motion was meritorious."

"Second, Valdez-Lopez’s new sentence was imposed by a different judge than the judge who imposed his first sentence. The presumption of vindictiveness is 'inapplicable [when] different sentencers assessed the varying sentences.'"

Judge Fletcher concurred:  "The question is whether on resentencing a judge (whether the original judge or a replacement judge) may impose a longer sentence when one count of conviction, responsible for a substantial portion of the original sentence has been set aside, and when the record is otherwise unchanged. If I were writing on a clean slate, I would say 'no.'"

"What does not make sense, and should not be the law, is for a resentencing judge to impose a longer sentence when the only change in the record is the fact that petitioner successfully challenged part of the original sentence as unconstitutional."

In United States v. Williams, --- F.4th ---, No. 20-30201 (9th Cir. 2021), the Court vacated a sentence imposed upon revocation of supervised release following the defendant’s commission of another crime, and remanded for resentencing.

This case reaffirms two points of Ninth Circuit sentencing law.

First, when dealing with Washington state predicates, because the state has mandatory guidelines, a conviction does not qualify as a crime “punishable by a term of imprisonment exceeding one year” if the maximum sentence allowed under the state’s sentencing guidelines does not exceeds one year, even if the statutory maximum does. 

Second, the panel reiterated what has already been the law -- a district court may order a sentence to run consecutively to an anticipated state sentence, but not consecutively to another federal sentence that has yet to be imposed. 

There is also some good language on harmless error in the sentencing context. 

"An error in calculating the applicable Guidelines range may be harmless if the district court 'acknowledges that the correct Guidelines range is in dispute and performs [its] sentencing analysis twice.' But at the same time, '[a] district court’s mere statement that it would impose the same aboveGuidelines sentence no matter what the correct calculation cannot, without more, insulate the sentence from remand' if 'the court’s analysis did not flow from an initial determination of the correct Guidelines range.' Here, although the district court stated that it would impose an alternative sentence above the Guidelines range, it gave no explanation of why an above-Guidelines sentence would be appropriate. Accordingly, we cannot rely on its alternative finding to hold the error harmless."

7/9/21: Big case on appellate waivers

 In United States v. Minasyan, --- F.3d ---, No. 19-50185 (9th Cir. 2021), the Court affirmed the conviction and sentence for conspiracy to commit health care fraud.

Minasyan entered into a plea agreement in which he waived the right to appeal his conviction except on the ground that his plea was involuntary, and waived the right to appeal most aspects of his sentence if the district court determined that the offense level was no greater than 25. 

On appeal, he argued the plea was involuntary because the district court did not give him a full and fair opportunity to contest the loss amount at his sentencing hearing.  He also claimed his plea was involuntary because—in light of United States v. Miller, 953 F.3d 1095 (9th Cir. 2020)—the plea agreement improperly stated the elements of the offense by stating that the requisite intent for the defendant’s offense was “to deceive or cheat,” instead of “to deceive and cheat.”  Finally, he argued the appellate waiver was unenforceable because the government breached the plea agreement by attempting to influence the court to give a higher sentence than the prosecutor’s recommendation.

The Court rejected all of these claims: "We hold that Minasyan’s appeal waiver is enforceable. In so holding, we reject Minasyan’s contentions that (1) the waiver was not knowing and voluntary, either by reason of the district court’s sentencing procedure or its misstatement of the intent element during the plea colloquy; and (2) the government implicitly breached the plea agreement. Because Minasyan’s appeal waiver is enforceable and the language of the waiver encompasses his right to appeal on the grounds raised, we affirm the district court’s judgment and sentence."

Of further note, the Court explained:  "We conclude that Minasyan had a full and fair opportunity to be heard. Contrary to Minasyan’s contention, the sentencing hearing also conformed to Federal Rule of Criminal Procedure 32. Rule 32(i)(1)(C) provides that the district court 'must allow the parties’ attorneys to comment on the probation officer’s determinations and other matters relating to an appropriate sentence.' Fed. R. Crim. P. 32(i)(1)(C). But Rule 32(i)(2) also states that the district court 'may permit the parties to introduce evidence' on objections to the PSR. Id. at 32(i)(2) (emphasis added). While the district court was required to allow Minasyan to challenge the probation office’s findings on intended loss, the district court had discretion to determine whether presenting evidence to support the challenge would be helpful or necessary."

7/6/21: Interesting case on rule of completeness and 18 U.S.C. § 2422(b)

In United States v. Lopez, --- F.3d ---, No. 19-10017 (9th Cir. 2021), the Court affirmed convictions for attempting to entice a minor to engage in prohibited sexual activity (18 U.S.C. § 2422(b)) and attempting to transfer obscenity to a minor under sixteen years of age (18 U.S.C. § 1470).

The circumstances giving rise to this case took place mostly on the Andersen Air Force Base in Guam.  Lopez, who was in the U.S. Army, tried to solicit an undercover agent who posed online as an underage girl.  

During trial, the district court allowed the government to admit heavily edited selections from his post-arrest statement. 

The Ninth Circuit found this was error, but harmless: "We hold the district court abused its discretion and violated Rule 106 by categorically excluding the entirety of the remaining interrogation footage as inadmissible hearsay despite the risk that the Government’s selective editing of the interrogation footage would mislead the jury. However, we agree with the Government that the district court’s evidentiary ruling was harmless error."

"When Rule 106 and Rule 802 collide, the critical inquiry for the trial court is the purpose for which the evidence is offered. Portions of a document or recording are admissible under Rule 106 notwithstanding the bar on hearsay evidence when offered 'to correct a misleading impression in the edited statement' introduced by an opposing party. In the interrogation context, for example, we have held that Rule 106 provides for the admission of additional portions of a defendant’s statement when the prosecution offers a redacted version that 'distorts the meaning of the statement,' 'excludes information substantially exculpatory of the declarant,' or 'excludes portions of a statement that are . . . explanatory of [or] relevant to the admitted passages.' By contrast, hearsay evidence is evidence offered 'to prove the truth of the matter asserted.' Fed. R. Evid. 801(c)(2). There is no conflict between evidence introduced under the rule of completeness and the bar on inadmissible hearsay because the former serves the purpose of correcting a distortion created by an opposing party’s misleading proffer of part of a document or recording, while the latter serves the purpose of barring introduction of hearsay evidence proffered for its truth."

"On a fair review of the interrogation recording, it should have been apparent that the excerpts risked misleading the jury by making it seem as though Lopez confessed during interrogation to believing 'Brit' was underage when, in reality, the full recording conveys a different impression."

"In response to Lopez’s objection, the district court could have excluded the video clips offered by the Government or admitted the Government’s clips subject to Lopez’s ability to proffer additional portions of the recording under Rule 106. The only course foreclosed by the Federal Rules of Evidence was the one taken here: admitting portions of a document or recording that risked misleading the jury while foreclosing the admission of any additional portions of the same document or recording." 

The next issue is technical but particularly interesting because the panel split.  The indictment alleged Lopez violated Section 2422(b) by attempting to entice a minor to engage in sexual activity criminalized by Guam’s First Degree Criminal Sexual Conduct statute, 9 G.C.A. § 25.15(a)(1).

Despite this express indictment, the majority held that 2422(b) did not require and the government did not have to prove that Guam or another governmental entity would have had jurisdiction to prosecute violations of the Guam statute cited in the indictment that were to occur on the base, a federal enclave.

"We hold as a matter of first impression that Lopez’s reading of Section 2422(b) to require charging a specific predicate offense is inconsistent with the statute’s text and how the statute has been interpreted. Instead, Section 2422(b)’s 'sexual activity for which any person can be charged with a criminal offense' element requires the Government to prove the defendant proposed sexual conduct that would have constituted any criminal offense in one or more relevant territorial jurisdictions. Under this reading of Section 2422(b), the Government presented sufficient evidence to allow the jury to conclude Lopez attempted to entice 'Brit' to engage in sexual conduct that is criminal in Guam."

The dissent by Judge Bennet is thorough. He explained: 

The grand jury charged Lopez with attempting to “entice[] a person who the defendant believed to be under eighteen years of age[] to engage in sexual activity for which a person can be charged with a criminal offense, to wit: First Degree Criminal Sexual Conduct, in violation of 9 [Guam Code Annotated (“GCA”)] § 25.15(a)(1).”  As I explain below, Lopez could not have been charged with or committed First Degree Criminal Sexual Conduct in violation of 9 GCA § 25.15(a)(1) as the predicate offense for his § 2422(b) violation, because the sexual activity he proposed was to take place on Anderson Air Force Base (AAFB), a place within the Special Maritime and Territorial Jurisdiction of the United States, and that crime is not assimilated under the Assimilative Crimes Act (“ACA”), 18 U.S.C. § 13. Thus, Lopez could not have committed and did not commit the crime with which he was charged in the indictment. Per force, the government presented insufficient evidence of his guilt. The Majority convicts the defendant for a different, uncharged crime—attempting to “entice[] a person who the defendant believed to be under eighteen years of age[] to engage in sexual activity for which a person can be charged with a criminal offense, to wit: attempted First Degree Criminal Sexual Conduct, in violation of 9 GCA §§ 13.10, 13.60(a), & 25.15(a)(1).  Though I harbor serious doubts about whether such a crime (attempting to entice to attempt) could even exist, Lopez was neither charged with nor convicted of that theoretical offense, nor was the jury instructed as to that theoretical offense. Thus, I dissent.

7/1/21: Important compassionate release (§ 3582) decision on exhaustion

In United States v. Keller, --- F.3d ---, No. 20-50247 (9th Cir. 2021), the Court held that the administrative exhaustion requirement in § 3582(c)(1)(A)(i) is a mandatory claim-processing rule that a district court must enforce when properly invoked.

Under 3582, a defendant may seek a sentencing reduction directly from the district court provided that “the defendant has fully exhausted all administrative rights to appeal a failure of the [BOP] to bring a motion on the defendant’s behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility, whichever is earlier.”

"In other words, a court may not consider a motion brought under § 3582(c)(1)(A) unless (1) the Director of the BOP has filed the motion on the inmate’s behalf, or (2) the inmate has requested that the BOP make such a motion and either (a) the inmate has “fully exhausted all administrative rights to appeal a failure of the [BOP] to bring a motion on the [inmate]’s behalf,” or (b) 30 days have elapsed since the “warden of the [inmate]’s facility” received a compassionate-release request from the inmate." 

The Court held this exhaustion requirement was not jurisdictional, but was instead a mandatory claim-processing rule.  Thus, if the government raises a lack of exhaustion, the district court must enforce it (as a corollary, the government can waive exhaustion by failing to raise it).

"Joining the unanimous consensus of our sister circuits, we hold that § 3582(c)(1)(A)’s administrative exhaustion requirement imposes a mandatory claim-processing rule that must be enforced when properly invoked."  And it means exhaustion must happen before the defendant files the motion (not before the district court rules on it). 

Of note, the Court also seemed to conclude that exhaustion applies to each compassionate release motion a defendant files.  So, if the defendant exhausted and then filed a motion, which was denied, the defendant must exhaust again before filing a second motion. 

"Keller asserts that he fully exhausted his administrative remedies for his second motion because 30 days had passed since he lodged his first administrative request with the warden in July 2020. But the July 2020 request served as the predicate for Keller’s first motion in the district court, which was denied in September 2020, and could not have initiated the administrative process for his January 2021 motion, which was itself premised on Keller’s claim of changed circumstances."