9/24/21: Good case on Batson

Sharing a Cal. Court of Appeal decision today, because it is relevant to federal practice.  

In People v. Silas; No. A150512  (C/A 1st, Div. 1 2021), the Court vacated the convictions based on a Batson violation.  
The case involved the DA challenging jurors on the basis of their support for the Black Lives Matter movement.  The Court explained: “support for Black Lives Matter is not, as the parties concede, a race-neutral reason for striking a prospective juror.”

The opinion is long, but worth at least a quick review.

9/23/21: Case on resentencing under 3582

In United States v. Lizarraras-Chacon, --- F.3d ---, No. 20-30001 (9th Cir. 2021), the Court reversed the district court’s denial of a motion for reduction of sentence under 18 U.S.C. § 3582(c)(2).

It held that legislative and judicial developments affecting mandatory statutory minimums are relevant considerations to the 18 U.S.C. § 3553(a) factors at step two of a § 3582(c)(2) motion.

The Court focused in two intervening developments affecting the mandatory minimum: (1) under United States v. Valencia-Mendoza, 912 F.3d 1215 (9th Cir. 2019), the defendant was never lawfully subject to a 20-year mandatory minimum because his 2010 prior conviction was not an offense “punishable by imprisonment for more than a year”; and (2) the First Step Act of 2018’s prospective reduction of the mandatory minimum from 20 to 15 years, and its replacing “felony drug offense” with “serious drug felony” as the predicate-offense requirement for triggering the mandatory minimum.

"[I]n a § 3553(a) factor analysis, a district court must [] use the fullest information possible concerning subsequent developments in the law, such as changes in sentencing guidelines, legislative changes to a mandatory minimum, and changes to a triggering predicate offense to ensure the punishment will “fit the crime” and critically, to ensure that the sentence imposed is also “‘sufficient, but not greater than necessary.’"

9/21/21: A very good day for the Fourth Amendment

Back on November 15, 2019, I argued a case about the Fourth Amendment implications of the government searching email contents without a warrant.  

Today, nearly two years later, the Ninth Circuit issued a wonderful opinion.  

In United States v. Wilson, --- F.4th ---, No. 18-50440 (9th Cir. 2021), the Court vacated Wilson's child pornography convictions and reversed the district court’s denial of his motion to suppress.  The Court also found the government waived any reliance on the good faith exception.  So, that is that. 

Here is some of the key language from the opinion: 

We once again consider the application of the Fourth Amendment’s warrant requirement to new forms of communication technology.

Our question is whether the government’s warrantless search of Wilson’s email attachments was justified by the private search exception to the Fourth Amendment. For the reasons that follow, we hold that it was not. We therefore reverse the district court’s denial of Wilson’s motion to suppress and vacate Wilson’s conviction.

[W]e assume that Wilson had a subjective expectation of privacy in his email attachments that society is prepared to recognize as reasonable.  

Our question, then, is whether Agent Thompson was permitted to look at Wilson’s email attachments under the private search exception, such that the Fourth Amendment did not require him to procure a warrant.

The government bears the burden to prove Agent Thompson’s warrantless search was justified by the private search exception to the Fourth Amendment’s warrant requirement. Before considering the private search exception, Coolidge emphasized “the most basic constitutional rule” in the Fourth Amendment arena: warrantless searches are per se unreasonable, subject to few exceptions that are “jealously and carefully drawn.” Accordingly, “[t]he burden is on those seeking the exemption.” The government has not met its burden here.

Both as to the information the government obtained and the additional privacy interests implicated, the government’s actions here exceed the limits of the private search exception as delineated in Walter and Jacobsen and their progeny.

First, the government search exceeded the scope of the antecedent private search because it allowed the government to learn new, critical information that it used first to obtain a warrant and then to prosecute Wilson. Second, the government search also expanded the scope of the antecedent private search because the government agent viewed Wilson’s email attachments even though no Google employee—or other person—had done so, thereby exceeding any earlier privacy intrusion. 

Moreover, on the limited evidentiary record, the government has not established that what a Google employee previously viewed were exact duplicates of Wilson’s images. And, even if they were duplicates, such viewing of others’ digital communications would not have violated Wilson’s expectation of privacy in his images, as Fourth Amendment rights are personal.

“When confronting new concerns wrought by digital technology, this Court has been careful not to uncritically extend existing precedents.” The government reports there were 18.4 million CyberTips in 2018, making it all the more important that we take care that the automated scanning of email, and the automated reporting of suspected illegal content, not undermine individuals’ Fourth Amendment protections. 

Having examined this case with the requisite care, we hold, for the reasons explained, that Agent Thompson violated Wilson’s Fourth Amendment right to be free from unreasonable searches when he examined Wilson’s email attachments without a warrant. 

9/16/21: Two opinions from Judge Bea

A busy day in the Ninth brings two opinions worth noting from Judge Bea. 

First, Alcaraz-Enriquez v. Garland, --- F.4th ---, No. 15-71553 (9th Cir. 2021), is an immigration case with criminal law implications.  I'm not going to summarize the entire opinion.  From the criminal law perspective, the relevant aspect has to do with the right to cross-examine the author of a probation report.

These principles—reliable evidence and fundamental fairness—converge when it comes to Alcaraz’s probation report. Alcaraz was never given any sort of opportunity to cross-examine the witnesses whose testimony was embodied in the probation report, and upon whose testimony the BIA ultimately relied in denying his appeal. Nor was any effort made—good faith or not—by the DHS to procure the witnesses, after Alcaraz preserved his right by adequate objection. This rendered the BIA’s procedure fundamentally unfair, especially given that probation reports may not offer a “highly reliable basis” on which to make important immigration decisions. Dickson, 346 F.3d at 54. So in light of the BIA’s failure to give Alcaraz an opportunity to confront the witnesses against him, the BIA’s reliance on the probation officer’s report was error.

If probation reports may not offer a highly reliable basis on which to make important immigration decisions, it stands to reason that the same is true for contested sentencing decisions.  

Second, in United States v. Shaefer, --- F.4th ---, No. 19-30266 (9th Cir. 2021), the Court affirmed the convictions and sentence for a variety of offenses, including assault on a federal officer (18 U.S.C. § 111(a)–(b)) and possession of an unregistered destructive device (26 U.S.C. §§ 5841, 5861(d), 5871). 

This is a long opinion covering numerous issues.  Much of the focus is on the right to self-representation and a court's ability to deny reappointment of counsel once a defendant has been granted permission to proceed pro se.  

One new rule from the opinion addresses a situation when, in the course of taking a waiver of counsel, the district court fails to inform the defendant of the correct minimum penalties.

[A]lthough it was made clear that Schaefer’s sentencing range was thirty years to life, his actual sentencing range—with § 844(h)’s stacking provision and assuming the merger of Schaefer’s counts under that subsection—was forty years to life.

We have not directly encountered a circumstance in which, like here, a district court incompletely identified only the defendant’s minimum sentence. Instead, we usually encounter circumstances in which the district court inaccurately identified the defendant’s maximum sentence.  In those circumstances, we evaluated the defendant’s “awareness of the range of possible penalties,” and whether the defendant understood “the magnitude of the loss” he faced and “knew of his substantial penal exposure.”

We see no reason to apply a different rule to the defendant’s knowledge of the minimum penalties than that which we apply to the defendant’s knowledge of the maximum penalties. Therefore, we hold that to find a defendant knowingly and intelligently waived his right to counsel, he must have substantially understood the severity of his potential punishment under the law and the approximate range of his penal exposure. Ideally, of course, a district court should strive to ensure that the defendant unquestionably understands all possible penalties, including any statutory minimums, maximums, and stacking provisions 

There is also an extended discussion of whether Schaefer's "homemade explosive device constituted a 'destructive device' within the scope of 18 U.S.C. § 921(a)(4) and 26 U.S.C. § 5845(f)."  The Court concluded it did. 

9/13/21: "We hold that the primary-purpose test applies to attorney-client privilege claims for dual-purpose communications"

In In Re Grand Jury, --- F.4th ---, No. 21-55085 (9th Cir. 2021), the Court affirmed the district court’s orders holding appellants, a company and a law firm, in contempt for failure to comply with grand jury subpoenas related to a criminal investigation. 

The opinion's introduction provides a good summary:

Given our increasingly complex regulatory landscape, attorneys often wear dual hats, serving as both a lawyer and a trusted business advisor. Our court, however, has yet to articulate a consistent standard for determining when the attorney-client privilege applies to dual-purpose communications that implicate both legal and business concerns. 

In this case, the grand jury issued subpoenas related to a criminal investigation. The district court held Appellants— whom we identify as “Company” and “Law Firm”—in contempt after they failed to comply with the subpoenas. The district court ruled that certain dual-purpose communications were not privileged because the “primary purpose” of the documents was to obtain tax advice, not legal advice. Appellants argue that the district court erred in relying on the “primary purpose” test and should have instead relied on a broader “because of” test. We affirm and conclude that the primary-purpose test governs in assessing attorney-client privilege for dual-purpose communications.

9/8/21: clicking on a website = "patronizing a place"

In United States v. Green, --- F.4th ---, No. 20-50257 (9th Cir. 2021), a divided panel affirmed the district court's revocation of Green's supervised release.  

The majority held that by visiting an adult pornography website Green violated the condition that he could not "patronize any place' where sexually explicit 'materials or entertainment are the primary material or entertainment available."

The majority first concluded, "an individual can [] 'patronize' a business merely by visiting it, or in the case of media, by viewing or consuming it."  It further determined, '"[p]lace” includes not only a physical location, but also 'an indefinite region or expanse.' A website qualifies as an indefinite region or expanse located in the digital realm."  Thus, it held, [v]isiting a website primarily featuring pornography [] constitutes 'patronizing a place' under a contemporary and common sense understanding of those terms."

Judge Paez has a compelling dissent, which begins: "Clicking on a website does not, on its own, entail 'patronizing a place.'"

One other point to consider -- at least for me -- is whether the majority's interpretation that a website is a "place" could have Fourth Amendment implications in future cases.  Food for thought.