1/26/22: Two criminal decisions today

In United States v. Orrock, --- F.4th ---, No. 19-10388 (9th Cir. 2022), the Court affirmed a conviction for evading the assessment of taxes under 26 U.S.C. § 7201. 

This is a statute of limitations case.  The Court considered when the six-year limitations period is triggered for purposes of 26 USC § 7201. 

It held, "the statute of limitations for evasion of assessment cases under § 7201 runs from the last act necessary to complete the offense, either a tax deficiency or the last affirmative act of evasion, whichever is later." 

"In sum, evasion of assessment and evasion of payment offenses are two ways to commit the same § 7201 offense. And we hold that the last affirmative act of evasion rule applies to both cases. Given the indictment was brought within six years of Orrock’s last evasive act, we affirm his conviction on the evasion of assessment charge."

Next, in United States v. Ceja, --- F.4th ---, No. 20-50204 (9th Cir. 2022),  the Court affirmed a conviction and sentence for conspiracy to distribute methamphetamine.

I'm not sure why this case is published, as it does not break new ground.  In any event, the Court rejected Ceja's arguments that: (1) his oral jury trial waiver was invalid; (2) the district court abused its discretion in rejecting his request for substitute counsel; (3) the evidence is insufficient with respect to his conviction of distribution of at least 50 grams of methamphetamine; and (4) the court erroneously treated his prior convictions as controlled substance offenses under the career offender guideline.

1/25/22: Case on compassionate release for pre-1987 convictions

In United States v. King, --- F.4th ---, No. 21-10002 (9th Cir. 2022), the Court affirmed the district court’s denial of a motion for compassionate release.

The issue was whether inmates who committed crimes before November 1, 1987, can move for compassionate release pursuant to 18 U.S.C. § 3582(c)(1), as amended by the FSA.  The Court held they cannot. 

"Because the statutory scheme governing compassionate release procedures is unmistakably clear that prisoners who offended before November 1, 1987, cannot personally move for compassionate release under § 3582(c)(1), and there is neither ambiguity nor absurdity in what Congress has said, we may not consider King’s extrinsic evidence. The unambiguous statutory text controls and we go no further in deciding this case." 

1/24/22: Case on “intent to defraud” under 18 U.S.C. § 1029

In United States v. Saini, --- F4th ---, No. 19-50196 (9th Cir. 2022), the Court affirmed convictions for possession of device making equipment (18 U.S.C. § 1029(a)(4)), and possession of at least fifteen unauthorized access devices (18 U.S.C. § 1029(a)(3)). 

"Saini’s main argument is that the district court reversibly erred by instructing the jury that 'intent to defraud' under 18 U.S.C. § 1029(a)(3) and (4) means an intent to deceive or cheat. Saini claims that 'intent to defraud' is an intent to deceive and cheat—an intent to deprive the victim of money or property by deception. We agree. The plain and ordinary meaning of 'intent to defraud' under § 1029(a)(3) and (4) is the intent to deprive the victim of money or property by deception."

The Court, however, found the error harmless beyond a reasonable doubt.  "In sum, the ordinary meaning of 'intent to defraud' under § 1029(a)(3) and (4) requires an intent to deceive and cheat. Legislative history supports our interpretation. The district court therefore gave an erroneous jury instruction. But, as discussed below, the error was harmless."

The Court also gave the helpful reminder that the 9th Cir. model instructions are "only instructive at best."  They are not authoritative legal pronouncements. 

1/21/22: Case on mens rea for transporting an individual or minor for criminal sexual activity in violation of 18 U.S.C. § 2421 and 18 U.S.C. § 2423

In United States v. Flucas, --- F4th ---, No. 19-10065 (9th Cir. 2020), a divided panel  affirmed the convictions and a life sentence for transportation of a minor with intent to engage in criminal sexual activity in violation of 18 U.S.C. § 2423(a), and transportation of an individual with intent to engage in criminal sexual activity in violation of 18 U.S.C. § 2421(a).

On appeal, the question was whether the district court properly instructed the jury that it could convict Flucas if a motivating purpose of his transportation of his victims from Oregon to California was to engage in criminal sexual activity. 

Flucas maintained that the district court was required to instruct the jury that the government must prove beyond a reasonable doubt that the dominant purpose of his transportation of his sexual abuse victims was to engage in criminal sexual activity.

The majority disagreed.  The opinion is very long and goes through many many cases in support of its conclusion that "the district court did not abuse its discretion in instructing the jury, consistent with our precedent, that the government was required to prove beyond a reasonable doubt that a dominant, significant, or motivating purpose of the transportation of Flucas’ victims was to engage in criminal sexual activity." 

Judge Bybee dissented:  "The question before us is a linguistic one. No court has considered whether 'a motivating purpose' is different from 'a dominant or significant purpose.' In my view, those terms are not synonymous. The instruction lowered the government’s burden of proof, contrary to the Supreme Court’s decision in Mortensen v. United States, 322 U.S. 309 (1944), and our own Mann Act decisions; and the error in instruction is not harmless beyond a reasonable doubt. Flucas may be guilty of committing heinous acts in multiple jurisdictions. But the government must show that his dominant or significant purpose for traveling between those jurisdictions was to commit those unlawful sexual acts. He may or may not have done so." 

1/20/22: SCOTUS Confrontation Clause decision

In Hemphill v. New York, 595 U.S. --- (2022), the Court considered whether a trial court can admit unconfronted statements if it concludes that the defendant "opened the door" to the evidence as part of his or her defense.  

The answer: No. "Hemphill did not forfeit his confrontation right merely by making the plea allocution arguably relevant to his theory of defense."  The Confrontation Clause is not subject to an opening-the-door exception. 

At the outset, the Supreme Court affirmed the very helpful appellate rule that “[o]nce a federal claim is properly presented, [on appeal] a party can make any argument in support of that claim.”

Then, on the merits, the Court explained:

"If Crawford stands for anything, it is that the history, text, and purpose of the Confrontation Clause bar judges from substituting their own determinations of reliability for the method the Constitution guarantees. The Clause 'commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.'  . . . . The upshot is that the role of the trial judge is not, for Confrontation Clause purposes, to weigh the reliability or credibility of testimonial hearsay evidence; it is to ensure that the Constitution’s procedures for testing the reliability of that evidence are followed."

"The trial court here violated this principle by admitting unconfronted, testimonial hearsay against Hemphill simply because the judge deemed his presentation to have created a misleading impression that the testimonial hearsay was reasonably necessary to correct. For Confrontation Clause purposes, it was not for the judge to determine whether Hemphill’s theory that Morris was the shooter was unreliable, incredible, or otherwise misleading in light of the State’s proffered, unconfronted plea evidence. Nor, under the Clause, was it the judge’s role to decide that this evidence was reasonably necessary to correct that misleading impression. Such inquiries are antithetical to the Confrontation Clause."

The Supreme Court thus concluded: "The Confrontation Clause requires that the reliability and veracity of the evidence against a criminal defendant be tested by cross-examination, not determined by a trial court. The trial court’s admission of unconfronted testimonial hearsay over Hemphill’s objection, on the view that it was reasonably necessary to correct Hemphill’s misleading argument, violated that fundamental guarantee."

1/18/22: 1326(d) case

In United States v. Castellanos-Avalos, --- F.4th ---, No. 20-30181 (9th Cir. 2022), on the government's appeal, the Court reversed the district court’s order granting Castellanos-Avalos’s motion to dismiss an indictment charging him with returning to the United States after having been ordered removed in violation of 8 U.S.C. § 1326.

The Court concluded that the district judge erred because Castellanos-Avalos’s  removal proceedings did not improperly deprive him of the opportunity for judicial review (§ 1326(d)(2)).  To the contrary, Castellanos-Avalos sought judicial review, and received it.  Thus, he could not meet the statutory requirements for dismissal under section 1326(d). 

1/10/21: Two published decisions from the same case

Today, the Ninth Circuit published two decisions from the same case (not to mention an unpublished mem as well). 

First, in United States v. Lonich, --- F.4th ---, No. 18-10298 (9th Cir. 2022), the Court affirmed the defendants convictions, but vacated their sentences and remanded for resentencing, in a case arising from fraudulent schemes concerning bank loans and real estate. 

The opinion is over 70 pages and covers four general issues.  

Initially, the Court rejected the defendants' claim that a superseding indictment violated their rights under the Sixth Amendment’s Speedy Trial Clause. In very, very short, the Court held that there was no Speedy Trial violation because the multi-year delay caused no relevant prejudice to the defendants.

The Court next addressed a challenge to the jury instructions on money laundering (18 U.S.C. § 1957) and misapplication of bank funds (18 U.S.C. § 656) counts.   The Court concluded that the district court’s general “knowingly” instruction was permissible and that the defendants in any event did not show prejudice from the instruction. 

The Court then rejected sufficiency challenges to convictions for bribery by a bank employee (18 U.S.C. § 215(a)(2)) and obstruction of justice (18 U.S.C. § 1512(c)(2)).

Finally, the Court vacated the sentences.  It held that a clear and convincing evidence standard applied to the factual underpinnings for certain loss enhancements, and the government did not meet its burden. The discussion on this issue is extensive and worth a read, especially as to the proper application of the Valensia factors (which determine whether a clear and convincing showing is required). 

Second, in a related forfeiture appeal, United States v. Houseco., --- F.4th ---, No. 18-10305 (9th Cir. 2022), the Court affirmed the district court’s dismissal of Intervener 101 Houseco, LLC’s ancillary petitions challenging the district court’s forfeiture order, asserting that the criminal defendants lacked a forfeitable interest in the property.

The intervener company argued that the defendants in the case above did not have a forfeitable interest in the subject property.  The Court held that a third party in a criminal forfeiture proceeding may not relitigate the antecedent forfeitability question, but is instead restricted to the two avenues for relief that § 853(n)(6) confers.  That is, the third party can challenge the criminal forfeiture order only by demonstrating that it has a superior interest in the property or was a bona fide purchaser for value.

1/3/21: Case on federal nexus for fraud involving identification documents under § 1028(a)

In United States v. Turchin, --- F4th ---, No. 18-10464 (9th Cir. 2022), the Court reversed in part, and vacated in part Robert Turchin’s jury conviction and sentence arising from his participation in a scheme to issue California commercial driver’s licenses to persons who had not passed the requisite tests.

There is a lengthy discussion of when the Court can consider arguments not initially raised by the parties.  

After clearing the procedural hurdle, the Court held that the district judge plainly erred in instructing the jury on federal nexus under § 1028(c)(1), which provides that the requisite federal nexus exists if “the identification document . . . is or appears to be issued by or under the authority of the United States or a sponsoring entity of an event designated as a special event of national significance.” The Court concluded that the phrase “United States” in § 1028(c)(1) refers only to the national government, and does not refer broadly to the United States and all of its component parts, including the States. 

Thus, the district court plainly erred in instructing the jury that the federal nexus required by § 1028(c)(1) was satisfied by showing that the identification document in question was issued by a state government.  The plain error, moreover, affected Turchin’s substantial rights and seriously affected the fairness of the judicial proceedings.  This was because, under the proper instructions, the jury could not have relied on § 1028(c)(1) to establish the needed nexus, and the government’s showing with respect to the two other alternatives for federal nexus in § 1028(c)(3)(A) and § 1028(c)(3)(B) was at least open to debate by reasonable jurors. 

As such, the Court reversed Turchin’s convictions on the § 1028(a)(1) counts and his conviction on the conspiracy count to the extent that the object of the conspiracy was a violation of § 1028.