12/29/22: Case on inventory searches

In United States v. Anderson, --- F.4th ---, No. 20-50345 (9th Cir. 2022), a divided panel affirmed the district court’s order denying Jonathan Anderson’s motion to suppress a handgun found during an inventory search of his truck.   

The per curiam majority held that the district court did not err in concluding the government established a valid community caretaking purpose existed for impounding and inventorying Anderson’s truck before the search was conducted.  

One partial dissent argued that the case should be remanded for further fact finding because of inconsistent testimony at the suppression hearing. 

The other partial dissent would have reversed based on the officers' failure to comply with their departments’ administrative policies governing inventory searches. 

If you have a case involving an inventory search, this opinion is a must read. 

12/28/22: Case on enticement of a child by means of interstate commerce

In United States v. Macapagal, --- F.4th ---, No. 21-10262 (9th Cir. 2022), the Court affirmed Noel Macapagal’s conviction for attempted enticement of a child by means of interstate commerce in violation of 18 U.S.C. § 2422(b).  

The case arose from a sting operation in which a federal agent, using internet and telephone communications, posed as a mother who wanted Macapagal to engage in sexual conduct with her daughters. 

The thrust of the opinion addresses Macapagal's argument that the use of an adult intermediary for his communications -- the purported mother -- rendered the conviction invalid.  He contended that § 2422(b) required the government to prove direct communication with someone he believed to be a minor, not with an adult. 

The Court rejected this contention, agreeing with all the other circuits that have considered similar challenges, and have concluded that the requisite intent to entice a minor is not defeated by use of an adult intermediary. 

The Court also rejected several other challenges to the conviction, but it vacated a special condition of supervised release as unconstitutionally vague. 

At sentencing, the district court imposed a special condition that stated: “You must not possess and/or use computers (as defined in 18 U.S.C. § 1030(e)(1)) or other electronic communications or data storage devices or media, without the prior approval of the probation officer.”  The condition was problematic because the definition of computers in 1030(e)(1) is overbroad. 

12/22/22: Case on the categorical approach in the solicitation context

In United States v. Linehan, --- F.4th ---, No. 21-50206 (9th Cir. 2022), the Court affirmed David Linehan’s conviction for soliciting the transportation of an explosive device in commerce with the knowledge or intent that it would be used to kill, injure, or intimidate a person or damage property, in violation of 18 U.S.C. §§ 373(a) and 844(d); reversed his conviction for soliciting the use of facilities of commerce with the intent that a murder be committed, in violation of 18 U.S.C. §§ 373(a) and 1958(a); and remanded for resentencing.

The prosecution was based on the fact that Linehan, while in prison on federal charges, solicited others to deliver a bomb to the home of a witness who had testified against him at his criminal trial.

On appeal, the Court "address[ed] whether, under the categorical approach, two predicate crimes— transportation of an explosive, 18 U.S.C. § 844(d), and using a facility of interstate commerce with intent that a murder be committed, 18 U.S.C. § 1958(a)—are crimes of violence under § 373(a)."  It held, "a violation of § 844(d) is a categorical match to § 373(a), but that a violation of § 1958(a) is not, a point the government now concedes." 

The opinion contains a lengthy categorical analysis of the predicate crimes, with a focus on "attempted use of force."  

It is very hard to summarize the discussion in a way that would be beneficial.  So, if you have a case where you are litigating whether a predicate qualifies as a categorical crime of violence, this case is a must read. 

12/21/22: Case on Franks issues and Fourth Amendment standing

In United States v. Fisher, --- F.4th ---, No. 20-10098 (9th Cir. 2022), the Court affirmed the district court’s orders denying defendants Justin and Joshua Fisher’s joint motions to suppress evidence from two searches, in a case in which the defendants entered conditional guilty pleas to various sexual offenses against children.

The case centers around whether an affidavit for a search warrant contained false statements and/or material omissions.  

"Defendants first argue that the district court erred in denying their first motion to suppress because the affidavit supporting the probable cause search warrant for Defendant Justin Fisher’s residence contained material, intentionally false and/or reckless statements and omissions that misled the issuing judge."

"Defendants further argue that the district court erred in denying their second motion to suppress for lack of standing because, contrary to the district court’s finding, Defendants had not abandoned certain technological devices seized from the residence after it was sold to a new owner."

The Court rejected both of these arguments.  

As to the first, it found: "Defendants fail to point to any misstatements or omissions in Detective Miller’s affidavit that, if stricken or supplemented, would undermine the reasonableness of the ultimate probable cause determination."

As to the second, "We find that the district court did not clearly err by finding abandonment here, and accordingly, we conclude that Defendants lacked standing to challenge the 2018 search of the devices recovered from the Burkehaven Avenue Residence."

12/20/22: Elements or means

In United States v. Barai, --- F.4th ---, No. 20-10318 (9th Cir. 2022), the Court affirmed the defendants' convictions for conspiracy to commit forced labor in violation of 18 U.S.C. § 1594(b) and two substantive counts of forced labor in violation of 18 U.S.C. § 1589(a). 

On appeal, the defendants challenged the district court’s refusal to give a specific unanimity instruction with respect to the means by which they obtained forced labor.  

In affirming the district court, the Ninth Circuit explained: "Calling a particular part of a statute an 'element' as opposed to a “means,” is legally significant. Relevant here, 'a jury in a federal criminal case cannot convict unless it unanimously finds that the Government has proved each element.' However, 'a federal jury need not always decide unanimously which of several possible sets of underlying brute facts make up a particular element, say, which of several possible means the defendant used to commit an element of the crime.' Thus, the United States Supreme Court has drawn a distinction between the legal elements of a crime and the factual means by which a defendant may commit that crime."

The Court continued, "the question in this case is: Are the listed alternatives in the forced labor statute elements or means? We hold that the listed alternatives of 18 U.S.C. § 1589(a) are factual means, rather than distinct legal elements. The district court therefore did not abuse its discretion when it denied the defendants’ proposed specific unanimity instruction."  

12/14/22: Case on statements to government investigators made under threat of loss of employment

In United States v. Wells, --- F.4th ---, No. 20-30009 (9th Cir. 2022), the Court affirmed James Wells’s convictions for killing two co-workers at a Coast Guard station.

On appeal, Wells argued that under the Fifth Amendment and Garrity v. New Jersey, 385 U.S. 493 (1967), statements he made to government investigators should have been suppressed because they were made under threat of loss of employment.

The Court rejected the claim.  It held that, in the absence of a direct threat of loss of employment, the appropriate framework for the court is to consider both the public employee’s subjective belief and the objective reasonableness of that belief to determine whether the employee’s statements were improperly coerced.  Only when both elements are satisfied is the employee entitled to suppression of his statements under Garrity.  Applying this rule, the Court concluded suppression was not warranted.

The Court, however, vacated a restitution order because the district court improperly determined that it had discretion under the All Writs Act to order garnishment of a higher percentage of monthly payments than otherwise authorized under the Mandatory Victims Restitution Act. 

12/5/22: It does not take a locomotive engineer to recognize that forcing a freight train to come to a sudden stop endangers the safety of those on and around it

In United States v. Reiche, --- F.4th ---, No. 21-30275 (9th Cir. 2022), the Court affirmed the sentence imposed on Ellen Reiche for Violence Against Railroad Carriers in violation of 18 U.S.C. § 1992(a)(5). 

The relevant facts were that, in order to stop a train carrying crude oil and strike a blow against the fossil fuel industry, Reiche secretly placed a shunt on the railroad tracks to tamper with the rail signaling system.

The Court held that the district court did not err in applying a sentencing enhancement pursuant to U.S.S.G. § 2A5.2(a)(2) for recklessly endangering the safety of a mass transportation vehicle.

"It does not take a locomotive engineer to recognize that forcing a freight train to come to a sudden stop endangers the safety of those on and around it.  Indeed, it is a common trope even in cartoons and comics that a speeding train cannot stop quickly and may derail in trying to do so. And common sense underscores the danger of having a speeding vehicle stop suddenly: Imagine if someone placed nails on a road to cause a flat tire in a bid to stop cars. Perhaps the car could safely come to a stop—but any reasonable person would recognize that this is a risky thing to do because the car, for example, may careen off the road or spin out of control."

The Court further held that the district court properly denied a reduction for acceptance of responsibility post-trial. 

12/2/22: Good case on intended loss from the 3d Cir.

In United States v. Banks, --- F.4th ---, No. 19-3812 (3d Cir. 2022), the Court vacated the defendant's fraud sentence, concluding "that the loss enhancement in the Guideline’s application notes impermissibly expands the word 'loss' to include both intended loss and actual loss." 

Our review of common dictionary definitions of “loss” point to an ordinary meaning of “actual loss.” None of these definitions suggest an ordinary understanding that “loss” means “intended loss.” To be sure, in context, “loss” could mean pecuniary or non-pecuniary loss and could mean actual or intended loss. We need not decide, however, whether one clear meaning of the word “loss” emerges broadly, covering every application of the word. Rather, we must decide whether, in the context of a sentence enhancement for basic economic offenses, the ordinary meaning of the word “loss” is the loss the victim actually suffered. We conclude it is. 

Because the commentary expands the definition of “loss” by explaining that generally “loss is the greater of actual loss or intended loss,” we accord the commentary no weight. Banks is thus entitled to be resentenced without the 12-point intended-loss enhancement in § 2B1.1. 

11/22/22: case on obstructing a pending proceeding, in violation of 18 U.S.C. § 1505

In United States v. Kirst, --- F.4th ---, No. 20-30193 (9th Cir. 2022), the Court affirmed Forest Kirst’s conviction on two counts of obstructing a pending proceeding, in violation of 18 U.S.C. § 1505 in a case in which the National Transportation Safety Board (NTSB) investigated the crash of a small plane that Kirst piloted. 

On appeal, Kirst argued that the NTSB’s accident investigation was not a pending “proceeding” within the meaning of § 1505, because the statute covers only proceedings where an agency has regulatory or adjudicative authority—authority that the NTSB lacks during an accident investigation.

The majority disagreed.  It held that the NTSB’s investigation of Kirst’s plane crash was a “proceeding” within the meaning of § 1505.  The majority explained, "[i]n conducting an investigation of an airplane crash, the NTSB has authority to issue subpoenas and to compel testimony under oath."  And this "is enough" to render the investigation a "proceeding."  

11/17/22: Case on appellate waivers and improper delegation of authority in the supervised release context

In United States v. Nishida, --- F.4th ---, No. 21-10070 (9th Cir. 2022), the Court vacated two special conditions of supervised release and remanded for resentencing so that the district court could clarify the scope of authority delegated to the probation officer.

At issue were special conditions of supervised release that charged the probation officer with supervising the Nishida's participation in mental-health and substance-abuse treatment programs, including the duration and intensity of the programs. 

On appeal, Nishida argued that the treatment conditions were unlawful because they purported to delegate to the probation officer authority to determine her punishment, which is a function reserved exclusively for the court.

Interestingly, Nishida did not contest that she knowingly and voluntarily waived her “right to assert any and all legally waivable claims,” but the Court did not enforce the appellate waiver because the claims on appeal were brought as challenges to the legality of the sentence.  And the Court explained that when a defendant with an otherwise valid appeal waiver challenges the legality of her sentence, the claim as to waiver rises and falls with the claim on the merits.

Turning to the merits, the Court held that whether a defendant must participate in inpatient treatment is a determination of the nature or extent of the punishment, which cannot be delegated to a nonjudicial officer. And the words that the district court used did improperly give the probation officer (in consultation with the treatment provider) discretion to require inpatient or outpatient treatment. 

Thus, the district court committed plain error affecting Nishida's substantial rights because she must comply with the conditions or face revocation of her supervised release. The Court therefore vacated the substance-abuse and mental-health treatment conditions and remanded for resentencing.

10/31/22: case on supervised release sentencing

In United States v. Richards, --- F.4th ---, No. 21-10190 (9th Cir. 2022), the Court affirmed the district court’s imposition of consecutive 24-month sentences on James Richards after finding he violated the conditions of his supervised release by possessing two guns and ammunition.

On appeal, Richards argued that the consecutive sentences: violate his rights under the Fifth and Sixth Amendments as explained in United States v. Haymond, 139 S. Ct. 2369 (2019); violate his rights under the Double Jeopardy Clause; and are not supported by sufficient evidence.

The Court rejected these arguments: 

Richards has not shown that the district court violated his rights under the Double Jeopardy Clause or abused its discretion in giving Richards two consecutive 24-month sentences for violating his conditions of supervised release. The district court found by a preponderance of the evidence that Richards had possessed two separate firearms (with ammunition). We reject Richards’ claim that his violations should have been determined beyond a reasonable doubt by a jury, as that argument is not supported by Justice Breyer’s controlling concurring opinion in Haymond, was previously rejected in Henderson, and has been uniformly rejected by our sister circuits. 

We reject Richards’ challenges to his consecutive sentences because he was found to have possessed two distinct firearms (with ammunition) which were found in different places and at different times. Moreover, the district court based the sentences on two distinct counts in Richards’ underlying indictment, and the consecutive sentences are supported by evidence proving four charges in the Amended Petition as well as evidence concerning a fifth charge. 

Finally, Richards has not shown that, when considered in the light most favorable to the government, a rational trier of fact could not have concluded that the preponderance of evidence established that Richards had possessed the firearms and ammunition. 

10/24/22: case on “organizer” or “leader” Guidelines increase

In United States v. Kabir, --- F.4th ---, No. 21-50141 (9th Cir. 2022), the Court affirmed Sohiel Omar Kabir sentence on terrorism-related charges. 

The opinion does not really break new ground.  The Court held:  "[T]he district court reasonably concluded that Kabir had 'the necessary influence and ability to coordinate the behavior of others so as to achieve [a] desired criminal result,' meaning that he was an 'organizer' within the meaning of USSG § 3B1.1(c)."  

The Court also rejected a few other arguments under the plain-error standard. 

10/13/22: Interesting case on opinion testimony

Sorry for the delay in reporting on this case.  It slipped through the cracks because the Ninth Circuit no longer releases all of its published opinions at 10:00 am. 

In United States v. Holguin, --- F.4th ---, No. 19-50158 (9th Cir. 2022), a divided panel affirmed the appellants' convictions for RICO and other crimes based on their alleged connection to the Canta Ranas gang.  

This case deals at length with the requirement that district courts make explicit reliability findings for any expert testimony.  It also addresses lay opinion testimony and dual-role testimony.  

If you are challenging opinion testimony, this case is a must read.  There is lots of helpful language. 

Because the district court enjoys “broad latitude” with regard to “how to determine reliability,” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 142 (1999) (emphasis removed), we cannot say that its failure to hold a hearing in this case was an abuse of discretion. Yet it would have been prudent to hold such a hearing, or employ other procedures such as focused voir dire, because district courts must make explicit findings that the government’s expert testimony was reliable.

We caution, however, that even if not required, it will often be beneficial for district courts to conduct some proceeding, focused on the reliability of expert testimony, such as a Daubert hearing or voir dire of proffered expert testimony.

While a district court’s inquiry is “flexible,” Alatorre, 222 F.3d at 1102, “the flexibility afforded to the gatekeeper goes to how to determine reliability, not whether to determine reliability.” Valencia-Lopez, 971 F.3d at 898 (emphasis in original). A district court “abdicates its gatekeeping role, and necessarily abuses its discretion, when it makes no reliability findings.” Id.; see also Barabin, 740 F.3d at 464. Reliability findings must be made “explicit” on the record – an “implicit” finding does not suffice.

A district court must distinguish an expert’s qualifications from the reliability of the expert’s principles and methods. See Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1315-16 (9th Cir. 1995) (“[S]omething doesn’t become ‘scientific knowledge’ just because it’s uttered by a scientist.”). It is “an abuse of discretion to confuse Daubert’s reliability and qualification requirements.” Weinstein & Burger, supra, § 702.04. “While ‘there is inevitably some overlap … they remain distinct concepts and the courts must take care not to conflate them.’”

To carry out its gatekeeping role, a district court must find that an expert’s testimony is reliable – an inquiry that focuses not on “what the experts say,” or their qualifications, “but what basis they have for saying it.” Daubert, 43 F.3d at 1316. A district court cannot be silent about reliability when challenged. 

10/11/22: the independent source doctrine strikes again

In United States v. Saelee, --- F.4th ---, No. 20-10209 (9th Cir. 2022), the Court affirmed Tony Saelee's convictions for attempted possession of Ecstasy with intent to distribute, and conspiracy to distribute Ecstasy and to possess it with intent to distribute.

After intercepting packages containing ecstacy, agents conducted a controlled delivery at Saelee's apartment.  After he accepted the packages, agents arrested him and searched the apartment without a warrant.  About an hour later, they obtained a warrant. 

The Court affirmed the denial of Saelee's motion to suppress based on the independent source doctrine.  Under that doctrine, suppression is unwarranted, even where evidence was “initially discovered during, or as a consequence of, an unlawful search,” when that evidence is “later obtained independently from activities untainted by the initial illegality.”

The Court held that, because all of the tangible and intangible evidence obtained as a result of the alleged violations was independently rediscovered or reseized when the agents executed a search warrant that was both sought and issued independently of any such violations, the district court correctly denied the motion to suppress.

The Court also rejected a host of other evidentiary challenges. 

9/23/22: Interesting case on Rule 41.

In United States v. Wright, --- F.4th ---, No. 19-10302 (9th Cir. 2022), the Court affirmed the district court’s orders with respect to Brian Wright’s claim in proceedings under Fed. R. Crim. P. 41(g) for the return of money seized from him in 2014 and 2017.  The Court held that neither Wright nor the government has established a right to the money.

"We hold that neither party has established its right to the money. Wright is correct that, as the person who last held the cash before it was seized, he was presumptively entitled to its return. But the district court properly found that this presumption was rebutted by the considerable evidence demonstrating that the money was stolen. We affirm the district court’s orders with respect to Wright’s claim to the money."

"At the same time, we hold that the government has not established its ownership of the money. Congress has enacted a detailed statutory forfeiture scheme through which the government may establish title in seized property. For reasons the government has struggled to articulate, it never invoked this scheme. We decline to permit the government to sidestep the forfeiture statutes, and their accompanying procedural protections, by way of a Rule 41(g) proceeding. Due to its various procedural errors, the government has not perfected title in the money and, unfortunately, Wright’s victims must continue to await compensation."

9/14/22: Very good compassionate release decision

In United States v. Chen, --- F.4th ---, No. 20-50333 (9th Cir. 2022), the Court vacated the district court’s denial of Howard Chen’s motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A), and remanded.

The issue was whether a district court may consider the First Step Act’s non-retroactive changes to sentencing law, in combination with other factors particular to the individual defendant, when determining whether extraordinary and compelling reasons exist for a sentence reduction under § 3582(c)(1)(A).

The Court held that it could. 
 

"We now join the First, Fourth, and Tenth circuits and conclude that district courts may consider non-retroactive changes in sentencing law, in combination with other factors particular to the individual defendant, when analyzing extraordinary and compelling reasons for purposes of § 3582(c)(1)(A). There is no textual basis for precluding district courts from considering non-retroactive changes in sentencing law when determining what is extraordinary and compelling."

"To hold that district courts cannot consider non-retroactive changes in sentencing law would be to create a categorical bar against a particular factor, which Congress itself has not done. In fact, such a categorical bar would seemingly contravene the original intent behind the compassionate release statute, which was created to provide the “need for a ‘safety valve’ with respect to situations in which a defendant’s circumstances had changed such that the length of continued incarceration no longer remained equitable.”

"We instead follow our precedent in Aruda and allow district courts to consider any extraordinary and compelling reason a defendant might raise, including § 403(a)’s non-retroactive changes in sentencing law."

9/13/22: Two decisions today

In United States v. Fowler, --- F.4th ---, No. 21-30172 (9th Cir. 2022), the Court affirmed the district court’s denial of Eric Fowler’s motion to suppress evidence discovered as a result of a traffic stop made by a Montana state trooper while Fowler, a member of an Indian tribe, was driving on a highway that runs through the Fort Peck Indian Reservation.

This case focuses on the cross-deputization agreement between the State of Montana and the Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation.  The Court held that the agreement was valid and thus so was the stop.   

In United States v. Montoya, --- F.4th ---, No. 21-50129 (9th Cir. 2022), the Court affirmed Montoya's conviction and sentence for importing cocaine and methamphetamine.

Montoya entered a plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(B).  On appeal, she argued that the district court erred by not allowing her to withdraw her guilty plea because it supposedly treated her plea agreement as a binding plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C).

The Court rejected this argument and a host of others.  It also reiterated that the district court need not orally pronounce conditions of supervised release that are mandatory under 18 U.S.C. § 3583(d) or recommended by the Guidelines as “standard, boilerplate conditions of supervised release.”

9/2/22: A published decision with no precedential force?

In United States v. Guerrero, --- F.4th ---, No. 21-10248 (9th Cir. 2022), a per curiam opinion, the Court affirmed the district court’s denial of Sergio Guerrero’s motion to suppress.

There are two concurrences and a dissent, so this seems to be a mostly result only opinion.  

"We affirm the denial of Guerrero’s motion to suppress because of the consistent conclusions of Judge Gould and Judge Bea, representing a majority of the panel, that we should affirm the denial of the motion to suppress. Affirmance is required by the conclusions of the judges in the majority, even though the reasoning of Judge Gould and Judge Bea in their separate concurrences filed herewith is different."

As for the dissent, Judge Thomas persuasively argues: "Trooper Amick’s stop ripened into an arrest when he held Guerrero handcuffed, on a roadside, for approximately 40 minutes, waiting for federal officers to arrive. Trooper Amick had no probable cause to do so. Thus, I agree with the Magistrate Judge’s findings and recommendations, and would reverse the district court’s denial of the suppression motion."

8/25/22: Case on threatening a person assisting federal officers in violation of 18 U.S.C. § 115(a)(1)(B

In United States v. Anderson, --- F.4th ---, No. 20-50207 (9th Cir. 2022), a divided Court affirmed Anderson’s jury conviction for threatening a person assisting federal officers and employees in violation of 18 U.S.C. § 115(a)(1)(B).

The issue was whether a private Protective Security Officer -- an employee of a private company that had been contracted by the Federal Protective Service to “provide security services at government-owned and leased properties" -- qualifies as a covered official for purposes of section 115(a)(1)(B). 

The majority said yes.  It held,  "§ 115(a)(1)(B) includes all individuals covered by 18 U.S.C. § 1114."  And § 1114 includes "any person assisting such an officer or employee in the performance of such duties."  

"Although we acknowledge that Congress could have more carefully drafted 18 U.S.C. § 115, we join our sister circuits in concluding that, plainly read, the statute incorporates all persons covered by 18 U.S.C. § 1114. When Anderson threatened PSO Bacchus, he was assisting the FPS in performing its official duty to protect the Social Security Office. Thus, her conduct violated 18 U.S.C. § 115."

8/23/22: case on money laundering conspiracy

In United States v. Jaimez, --- F.4th ---, No. 19-50253 (9th Cir. 2022), the Court affirmed Alexis Jaimez’s convictions for conspiracy to distribute a controlled substance, money laundering conspiracy, and RICO conspiracy. 

The case is very fact specific and does not add too much to the law. The Court notes: 

"To convict an offender of money laundering conspiracy, 18 U.S.C. § 1956(h) requires the government to prove the following elements beyond a reasonable doubt: (1) There was an agreement to commit money laundering.  (2) The defendant knew the objective of the agreement. (3) The defendant joined the agreement with the intent to further its unlawful purpose." The Court found the evidence sufficient as to these elements. 

Jaimez further argued, "the district court erred by instructing the jury, in the course of generally defining the term “knowingly,” that the government was “not required to prove that the defendant knew that his acts or omissions were unlawful.” Jaimez maintains that this standard instruction could have allowed jurors to convict him of money laundering conspiracy even if they did not believe the government had proven that at least some of the laundered proceeds were unlawfully obtained."

On plain error review,  the Court concluded that, because "Jaimez has failed to demonstrate that the alleged error affected his substantial rights, let alone seriously affected the fairness, integrity, or public reputation of his judicial proceedings, we need not decide whether he has established a clear or obvious instructional error."

8/22/22: Right to a public trial

In United States v. Ramirez-Ramirez, --- F.4th ---, No. 21-10127 (9th Cir. 2022), the Court vacated a judgment of conviction, following a bench trial, for possession of marijuana with intent to distribute and remanded for specific findings of fact.

Following the bench trial, the district court issued a written finding of guilt, but did not make a public, in-person finding of guilt until sentencing.  

The Court held that the district court plainly erred by making only a written finding of guilt after trial, in violation of the defendant’s Sixth Amendment right to a public trial. The Court concluded that, although the usual remedy would be a remand to announce the finding in open court, the district court had already reiterated its finding of guilt publicly during the defendant’s sentencing, rendering such a remedy superfluous.

As such, the Court remanded for the district court to make specific findings of fact, as the defendant requested. 

"The requirement that findings of guilt be announced in open court vindicates core constitutional and human values. While a trial court is free to recess after the close of a bench trial to consider its decision further or to issue a written opinion elaborating on its oral finding of guilt, denying a criminal defendant the opportunity to be present in a public hearing at the time his guilt is determined undermines the fairness, integrity, and legitimacy of the judicial proceedings. Such a closure cannot be permitted to stand."

8/17/22: Important minor role decision out of SDCA and a decision on the First Step Act

First, in United States v. Rodriguez, --- F4th ---, No. 21-50108 (9th Cir. 2022), the Court vacated Rodriguez's sentence, concluding the district court erred in denying minor role. 

"We have [] held that district courts must consider all of these factors when determining whether to grant a mitigating-role adjustment. See United States v. Quintero-Leyva, 823 F.3d 519, 523 (9th Cir. 2016). Thus, gone are the days when district courts had virtually unlimited discretion to simply deem a defendant to be of above average, average, or below average culpability. Now, “the assessment of a defendant’s eligibility for a minor-role adjustment must include consideration of the factors identified by the Amendment, not merely the benchmarks established by our case law that pre-dates Amendment 794’s effective date.”

"We recently clarified that the mitigating-role commentary’s reference to the “average participant” refers to “the mathematical average,” and that to calculate that average “‘all likely participants in the criminal scheme’ must be included.” This means that even “those that the district court believe[s] were leaders or organizers or who were otherwise highly culpable” must be included in the calculation. Therefore, each co-participant’s culpability affects the minor role analysis, and the district court erred by holding that Gordo’s culpability was not relevant. 

In addition, "the district court appeared to treat each factor as presenting a binary choice: either it was satisfied, and it weighed against a minor role reduction, or it was not, and it weighed in favor of the reduction. But the commentary instructs courts to analyze the degree to which each factor applies to the defendant. The question is not simply whether the defendant “understood the scope and structure,” “participated in planning or organizing,” or “stood to benefit” from the crime. This is because the purpose of these factors is to determine the defendant’s role relative to other participants in the crime. And even a defendant who knows some of the scope and structure of the organization, participates in some of the planning, and receives a large payment for his participation could still play a relatively minor role compared to his co participants if they know more about the scope and structure of the organization, are more heavily involved of the planning, and receive a larger share of the proceeds. The key question is how the defendant compares with the other participants in the offense."

As to the first factor, "when applying the first factor, a district court must examine the defendant’s knowledge of the scope and structure of the broader group of people involved in the offense." 

"This approach is also more consistent with the purpose of the factors, which is to help the district court assess the defendant’s role relative to other participants in the offense. High-level or more-involved participants are likely to know more about the scope and structure of a criminal organization than are minor participants who may be junior members of the organization or who, like Rodriguez, appear to be akin to independent contractors carrying out one-off tasks. The district court’s approach, by contrast, would render this factor essentially useless for ascertaining the defendant’s relative role because every defendant who is convicted of a crime is aware of his own conduct in committing the offense. If a defendant’s knowledge of his own conduct were sufficient to weigh this factor against a defendant, it would never weigh in the defendant’s favor, and thus would never help clarify the defendant’s relative role."

"In this case, the district court appeared to conclude that a larger drug trafficking organization was involved in the offense. On remand, then, the district court should examine the degree to which Rodriguez knew of the scope and structure of that organization."

The district court's "interpretation of the second factor is also erroneous. First, the plain language of this factor indicates that the district court must assess the degree to which the defendant participated in devising the plan. The use of the words “planning or organizing,” as verbs, indicates that the defendant must take an active role in developing the plan. One who simply receives instructions and follows them does not “plan” or “organize” the crime."

"Second, the district court’s interpretation is inconsistent with how we analyzed this factor in Diaz. There, we held that the fact that Diaz “did not know the type or quantity of the drugs hidden in his vehicle[] suggest[ed] he did not play a significant role in planning or organizing.”  This was the case even though he had crossed the border twice—once as a practice run and once to support his friend—before crossing the border on the day he was arrested. See id. at 913. If simply being told the plan and following it were sufficient to weigh this factor against the defendant, we could not have held that this factor weighed in Diaz’s favor because he, like Rodriguez, was aware of the plan before committing the offense."

"Third, for the reasons stated above, the district court’s interpretation—that following instructions is “planning or organizing”—would render this factor useless for determining the defendant’s relative role since virtually every defendant who participates in a multi-defendant crime has either devised the plan or followed it. Our interpretation in Diaz, on the other hand, is consistent with the purpose of this factor: one who devises a plan and organizes others is likely to play a more significant role, while one who simply follows instructions is likely to play a less significant role."

"The fifth factor is “the degree to which the defendant stood to benefit from the criminal activity.” The district court held that this factor weighed against Rodriguez because $1,500 “is not an insubstantial amount of money.”4 This, too, is inconsistent with Diaz."

"In Diaz, the defendant was “to receive a set fee of $1,000” for driving drugs across the border. 884 F.3d at 917. We held that the district court erred by weighing this factor against Diaz because the district court “ignored that [the defendant’s] compensation was relatively modest and fixed.” Id. at 918. To properly apply this factor, we explained, the district court must consider whether the defendant has a “proprietary interest in the criminal activity,” such as “an ownership interest or other stake in the outcome of the trafficking operation.” Id. at 917–18; see also U.S.S.G. § 3B1.2, cmt. 3(C) (“[A] defendant who does not have a proprietary interest in the criminal activity and who is simply being paid to perform certain tasks should be considered for an adjustment under this guideline.”). 

"Because Diaz did not have a proprietary interest in the drugs and because the amount he would be paid “was relatively modest and fixed” this factor weighed “in favor of granting the adjustment.” Id. at 918. Here, the district court did not consider that Rodriguez was to be paid a fixed amount to perform a discrete task, that he did not have a proprietary interest in the drugs, and that the amount he was to be paid was relatively modest compared to the value of the drugs. Like all of the other factors, the purpose of this factor is to aid in determining the defendant’s relative role, not just to determine whether the defendant received what the district court considers to be a lot of money in an absolute sense." 

Congrats to John Lanahan on a great win!

Next, in United States v. Cartner, --- F.4th ---, No. 19-10411 (9th Cir. 2022), the Court vacated the district court’s order granting in part and denying in part Carter’s motion to be resentenced under the First Step Act of 2018. 

"Because the district court decided Carter’s motion without demonstrating that it considered his nonfrivolous arguments, we vacate and remand."

"While this case was pending, the Supreme Court decided Concepcion v. United States, 142 S. Ct. 2389 (2022). Concepcion has three holdings relevant here. First, Concepion held that “the First Step Act allows district courts to consider intervening changes of law or fact in exercising their discretion to reduce a sentence.” Id. at 2404. Second, Concepcion held that because district courts must “consider nonfrivolous arguments presented by the parties, the First Step Act requires district courts to consider intervening changes when parties raise them.” Id. at 2396. And third, Concepcion held that district courts ruling on First Step Act motions bear the “standard obligation to explain their decisions,” and accordingly must give a “brief statement of reasons” to “demonstrate that they considered the parties’ arguments”—including arguments pertaining to intervening changes in law or fact. Id. at 2404. 

"Concepcion’s first holding conflicts with our decision in United States v. Kelley, 962 F.3d 470 (9th Cir. 2020). Kelley held that “the First Step Act . . . does not authorize the district court to consider other legal changes,” outside of Sections 2 and 3 of the Fair Sentencing Act, “that may have occurred after the defendant committed the offense.” Id. at 475. Concepcion held otherwise, instructing that “the First Step Act allows district courts to consider intervening changes of law or fact in exercising their discretion to reduce a sentence pursuant to the First Step Act.” On this issue, Concepcion abrogates Kelley and we apply Concepcion, not Kelley."

"Applying Concepcion’s principles here, the district court erred . . . . the district court granted in part and denied in part Carter’s resentencing motion with no explanation whatsoever. We thus vacate the resentencing order below and remand."

8/11/22: Supervised release conditions that relate to siblings

In United States v. Magdaleno, --- F.4th --- (9th Cir. 2022), the Court affirmed the district court’s imposition of a special condition of supervised release set forth in the plea agreement that prohibits Johnny Magdaleno from associating with any member of the Norteño or Nuestra Familia gangs.

On appeal, Magdaleno argued that this condition violates his fundamental right to familial association because it does not exclude his siblings who might be gang members.  

The Court disagreed.  Although it held that the challenge was not barred by the invited-error doctrine, the Court concluded that Magdaleno's relationship with a sibling or half sibling does not inherently constitute an “intimate relationship” with a “life partner,” child, or fiancée, and thus does not give rise to a “particularly significant liberty interest” that would require the district court to undertake additional procedural steps at sentencing.  

Further, the condition was not substantively unreasonable. "Although we do not rule out the possibility that a sibling relationship could, under certain circumstances, give rise to a particularly significant liberty interest, Magdaleno offers no evidence to suggest that any of his sibling relationships is comparable, in its level of support and intimacy, to a relationship with one’s child, “life partner,” or fiancée. Furthermore, Magdaleno’s scheduled release date is more than two decades away. His familial circumstances could change significantly in that time. Thus, while Magdaleno can move to modify the Gang Condition closer to his release date if the circumstances warrant, it would be inappropriate for us to do so now when he has cited no evidence to show the existence of an intimate familial relationship to begin with."

8/2/22: Case on “enhancement” of a sentence under 18 U.S.C. § 3553(f)(5)

In United States v. Brown, --- F.4th ---, No. 20-50313 (9th Cir. 2022), the Court affirmed a sentence imposed following Marquis Brown’s guilty plea to importing methamphetamine under 21 U.S.C. §§ 952 & 960.

On appeal, Brown argued that the district court committed a procedural error because it improperly enhanced his sentence in violation of the First Step Act of 2018. The First Step Act, which in part amended 18 U.S.C. § 3553(f), prohibits district judges from using information disclosed by a defendant in a safety valve proffer to enhance a sentence, unless the information relates to a violent offense. 

Here, during his safety valve proffer, Brown admitted to smuggling drugs on prior occasions.  During the sentencing, the court cited this fact, and others, in imposing a sentence above what the government and probation recommended but below the Guidelines range. The district court stated it would be “a disingenuous exercise” to sentence Brown even to the 71 months requested by the Government, given the fact that Brown had smuggled drugs on prior occasions.

"We hold that the district court did not impose an improper sentence enhancement here . . . . It is clear that the district court considered information disclosed in the safety valve proffer to impose a sentence, such as Brown’s previous drug smuggling trips. This is not prohibited . . . . The sentencing court considered the safety valve information in conjunction with other mitigating and aggravating factors in its determination of a downward sentence variance. The district court imposed a sentence of 78 months—a sentence not just below the mandatory minimum, but also 30 months below the low end of Brown’s guidelines range. This does not constitute an enhancement."

The opinion, however, does not take the extra step of saying what would constitute an improper "enhancement."

7/26/22: Split decision on probable cause to arrest for displaying a gun in an open carry state

In United States v. Willy, --- F.4th ---, No. 21-30006 (9th Cir. 2022), the majority affirmed the district court’s order granting Willy’s motion to suppress evidence and statements obtained after his arrest.

"This case requires us to determine whether there was probable cause to arrest Marc Anthony Willy for displaying a weapon in a manner that “warrant[ed] alarm for the safety of other persons.” Wash. Rev. Code § 9.41.270(1). Willy was arrested after two people separately reported that a man in a truck had displayed a firearm while asking them questions about an alleged kidnapping in the area. After his arrest, a search of Willy’s vehicle and person recovered illegal firearms and a modified CO2 cartridge. Willy was charged with making and possessing a destructive device in violation of the National Firearms Act, 26 U.S.C. § 5861. The district court granted Willy’s motion to suppress all evidence and statements obtained after his arrest because his arrest was not supported by probable cause. We affirm."

The majority reasoned that, under Washington law, there was no probable cause.  It noted that Washington is an open carry state.  So merely having the gun did not violate any law.  Moreover, Willy's actions in displaying his gun would not "warrant alarm in a reasonable person for the safety of others."  Thus, the majority affirmed the order suppressing all evidence that flowed from the illegal arrest. 

The dissent had a different take: "The only question our court needs to decide is whether Deputy Thaxton had probable cause to suspect that Willy violated the second clause in RCW9.41.270(1) by displaying a firearm “in a manner, under circumstances, and at a time and place that . . . warrants alarm for the safety of other persons.” Without question he did, and Deputy Thaxton lawfully arrested him."

7/22/22: Case on 1001s and supervised release sentencing

In United States v. Oliver, --- F.4th ---, No. 30137 (9th Cir. 2022), the Court affirmed the district court’s judgment revoking supervised release based on Oliver's committing a new crime, and the sentence imposed upon revocation.

The district court revoked Oliver's supervised release for violating 18 U.S.C. § 1001(a) by submitting a monthly supervision report with false statements to his probation officer.  Oliver argued that, because the report was eventually forwarded to a judge, his conduct fell within the exemption in 18 U.S.C. § 1001(b) for statements “submitted to a judge or magistrate” in a judicial proceeding.

The Court rejected that argument: "By its plain language, the judicial proceeding exception only protects statements made 'by [the] party . . . to the judge or magistrate'—not statements made to others in the judicial branch."

"To be sure, we’ve held that some judicial branch “intermediar[ies]” may be such a direct conduit to a judge that the requirement is satisfied by submission to the intermediary. Horvath, 492 F.3d at 1081. For example, we’ve said that delivery of material to a judge “by means of couriers, court clerks, secretaries, and other staff” is sufficiently connected to a judge to meet the submission requirement. Id. We’ve also said that a defendant’s interview with a probation officer before sentencing meets the submission requirement, but “only if the law requires the probation officer to include the statement in the [presentence report (“PSR”)] and submit the PSR to the court.” Id. (emphasis added). There, the probation officer is a “neutral, information-gathering agent of the court” who directs the defendant’s statements to the judge “without superimposing any analysis of his own.” Id. at 1079. We explicitly “limited [the] reach of our holding” in Horvath to that narrow circumstance of a pre-sentencing interview for preparing a PSR. Id. at 1081. None of Horvath’s exceptions apply here. Oliver lied on a monthly supervision report provided to his probation officer during his term of supervised release."

The Court also rejected Oliver's argument "that a jury must find him guilty beyond a reasonable doubt before a court may revoke his supervised release under 18 U.S.C. § 3583(e) for committing a new crime in violation of his supervised release conditions."

"Because a sentence for a supervised release violation is generally part of the penalty for the original offense, it is not a new and additional punishment requiring Apprendi-style jury findings beyond a reasonable doubt. That is true even when the violative act is a criminal offense with no mandatory minimum revocation sentence, as is the case here." 

7/21/22: Case on Fourth Amendment and vehicle stops

In United States v. Nault, --- F.4th ---, No. 20-30231 (9th Cir. 2022), a divided panel affirmed the district court’s denial of Shane Nault’s motion to suppress evidence that resulted from a search of the vehicle he was driving. 

Beginning in reverse order with the dissent: 

In Rodriguez v. United States, 575 U.S. 348, 355–56 (2015), the Supreme Court held that, when police stop a vehicle for a traffic violation, they may prolong the stop to conduct “ordinary inquiries” incident to the stop, including asking the driver for his license, registration, and proof of insurance, because these inquiries are “part of the officer’s traffic mission” and “serve the same objective as enforcement of the traffic code: ensuring that vehicles on the road are operated safely and responsibly.” The officers, however, may not prolong a traffic stop to conduct inquiries unrelated to the purpose of the stop. Id. They may not, for example, prolong the stop to investigate other crimes. Id. at 356–57. 

This case, however, is unlike Rodriguez. Police officers approached Shane Nault’s vehicle, which was already parked in a private lot, because they were looking for Joei Ross, who was the subject of an outstanding arrest warrant. When they learned that Ross was not present, their mission was completed and their authority for the seizure ended. The officers nevertheless prolonged the stop to thereafter conduct an unrelated traffic safety investigation, asking Nault for his license, registration, and proof of insurance. These inquiries, of course, were not part of the officers’ mission in making the stop. The officers therefore violated Nault’s Fourth Amendment rights. 

The majority disagreed with this seemingly straightforward analysis. 

Officer Chroniger’s continuation of the stop to request Nault’s documents did not violate the Fourth Amendment because that request fell within the mission of the stop. 

An officer conducting a vehicle stop has interests extending beyond that of “detecting evidence of ordinary criminal wrongdoing.” An officer’s “mission” includes certain “ordinary inquiries incident to the traffic stop,” even if they are not required to investigate a particular traffic violation. Id. (citation and internal quotation marks omitted). Those inquiries “[t]ypically … involve checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance.” Id. Such routine checks “ensur[e] that vehicles on the road are operated safely and responsibly.” Id. By contrast, unrelated inquiries such as dog sniffs or other non-routine checks, which are “aimed at ‘detect[ing] evidence of ordinary criminal wrongdoing,’” lack the same “close connection to roadway safety,” and must be justified by independent reasonable suspicion. 

We therefore must determine whether Officer Chroniger’s request for documents—as it would be in a typical traffic stop—was “fairly characterized as part of the officer’s traffic mission.”

The circumstances of Officer Chroniger’s encounter with Nault implicate the same vehicle safety purpose discussed in Rodriguez. When Officer Chroniger pulled into the Zip Trip parking lot, Nault was sitting in the driver’s seat of the truck. The engine was running. There was no indication either that someone else had driven Nault to the gas station or that someone else would drive him away. As with any traffic stop, Officer Chroniger had a strong interest in ensuring that Nault had the ability to legally operate his vehicle.

It is of no moment that Officer Chroniger never observed Nault commit a traffic violation. In describing the scope of an officer’s mission during a traffic stop, the Supreme Court said categorically that it includes the “ordinary inquiries” that Officer Chroniger conducted, without any need for individualized suspicion that a driver poses a risk to others or is violating vehicle licensing, registration, or insurance requirements.  While an interest in traffic safety would not alone justify a stop to conduct these ordinary inquiries, these inquiries can be performed during a traffic stop once the intrusion of a stop has been justified by some other lawful basis.

Of course, a traffic violation is not the only lawful basis for an officer to conduct a vehicle stop. An officer may stop a vehicle with reasonable suspicion that a person inside “has committed, is committing, or is about to commit a crime.” That can include suspicion that the vehicle’s driver is the subject of an outstanding warrant.  Under Rodriguez’s categorical rule, a routine document check would remain part of the officer’s mission even when the suspicion that justified a stop was based on an outstanding warrant rather than a traffic violation. That is precisely the case here.

We hold that Officer Chroniger did not unconstitutionally prolong the stop, and the evidence acquired during the subsequent investigation and search of the truck was not tainted. As discussed above, that investigation revealed further indicia of intoxication from Officer Chroniger’s field sobriety tests, and a positive alert from a dog sniff. Combined with the evidence from the controlled methamphetamine buy from Nault out of the same truck a month earlier, the search warrant was amply supported by probable cause. Therefore, no Fourth Amendment violation occurred and the district court correctly denied the motion to suppress. 

7/16/22: Case on distributing drugs on board a vessel - significant minor role implications

In United States v. Dominguez-Caicedo, --- F.4th ---, No. 19-50268 (9th Cir. 2022), the Court affirmed convictions for conspiring to distribute cocaine on board a vessel, possession of cocaine with intent to distribute on board a vessel, and aiding and abetting; affirmed two of the defendants' sentences; and vacated the other defendant's sentence.

The case stems from the Coast Guard taking the defendants into custody near the Galapagos Islands and then eventually transporting them to California.  

The opinion is lengthy, covering lots of issues, including Rule 5 violations and when dismissal can be an appropriate remedy, as well as when a court may dismiss a case based on outrageous government conduct. But for purposes of this summary, I'm going to focus on the minor role analysis.  The Court goes in depth on the proper inquiry and discusses who can be considered a "likely" participant: 

The relevant comparison is to the other participants in the defendant’s crime, not to typical defendants who commit similar crimes.Thus, in this case, the district court was required to compare the defendants to the other participants in their crimes, not to typical defendants occupying their roles, such as typical drug transporters. Further, when the mitigating role commentary instructs courts to compare the defendant’s culpability to that of “the average participant in the criminal activity,” it is not referring to the actual level of culpability of any single participant. It is instead referring to the mathematical average, i.e., a “single value that represents the midpoint of a broad sample of subjects.” Thus, “all likely participants in the criminal scheme” must be included in calculating the average. 

To determine whether a defendant is substantially less culpable than the average participant in the offense, a district court must proceed in three steps. First, the court must identify all of the individuals for whom there is “sufficient evidence of their existence and participation in the overall scheme.” Rojas-Millan, 234 F.3d at 474. Second, the court must calculate a rough average level of culpability for these individuals, taking into consideration the five factors in comment 3(C) to the Mitigating Role Guideline. See Diaz, 884 F.3d at 916. Third, the court must compare the defendant’s culpability to that average. If the defendant is substantially less culpable than that average and meets the other criteria, he should be granted a mitigating role adjustment. If the defendant is not substantially less culpable than that average, he is not eligible for the adjustment.

The Government and some district courts appear to have interpreted United States v. Hurtado, 760 F.3d 1065, 1069 (9th Cir. 2014), overruled on other grounds by Gasca-Ruiz, 852 F.3d at 1174, to suggest that a court must first identify all participants in the crime and then disregard participants of above-average culpability (and, presumably, those of below-average culpability) and compare the defendant’s culpability only to the remaining individuals whom the district court deems to be of average culpability. A court following this approach compares the defendant’s culpability to only the median participants’ actual level of culpability instead of comparing the defendant’s culpability to the average level of culpability of all the participants in the offense. 

This understanding of Hurtado is incorrect. At the outset, we note that much of Hurtado has been overruled or abrogated. But to the extent anything remains of Hurtado, it simply stands for the proposition that comparing a defendant to only the most culpable subset of the participants in the offense does not demonstrate that the defendant is entitled to a minor role reduction. Instead, the district court must compare the defendant’s culpability with the average level of culpability of all of the participants in the crime. Hurtado did not set forth an entirely different method of performing the minor role analysis.

***

The fact that illicit drugs are often traceable to larger drug trafficking organizations does not mean that district courts must compare the conduct of each defendant convicted of a drug crime to that of every hypothetical member of a typical drug trafficking organization. We have repeatedly held that the relevant comparators are the actual participants in the defendant’s crime. By “actual participants,” we mean only participants for whom there is “sufficient evidence of their existence and participation.” Even if one can assume based on how drug trafficking organizations typically operate that it is likely that another unidentified person participated in the crime, the district court is not required to compare the defendant’s culpability with that of the unidentified person. Indeed, without evidence of the proposed comparator’s existence or participation the district court has nothing against which to compare the defendant’s conduct.

We have referred to likely participants to make clear that the defendant does not necessarily need to know the participant’s name or see the participant for there to be sufficient evidence of that person’s participation in the offense. But we have never required a comparison to unknown persons one might assume participated but about whom there is no evidence of their actual participation.