3/28/22: Case on the Fourth Amendment's nexus requirement and aggravated identity theft

In United States v. Kvashuk, --- F.4th ---, No. 20-30251 (9th Cir. 2022), the Court affirmed convictions on  fraud-related counts in a case in which Kvashuk stole $10 million in digital gift cards from his employer, Microsoft, using login credentials he took from his coworkers.

"Kvashuk challenge[d] the denial of his motion to suppress evidence seized from his house on the ground that the search warrant lacked probable cause."  He argued that the warrant affidavit failed to “establish a nexus between the unlawful activities and the places to be searched.”

The Court explained: "It is true that '[p]robable cause to believe that a suspect has committed a crime is not by itself adequate to secure a search warrant for the suspect’s home.' But 'the nexus between the items to be seized and the place to be searched' can rest on 'normal inferences as to where a criminal would be likely to hide” evidence of his crimes.'"

And "the nature of cybercrime— specifically, its reliance on computers and personal electronic devices—is relevant to probable cause for searching the suspect’s residence."  Ultimately, the Court concluded, "the search warrant affidavit shows a fair probability that evidence of Kvashuk’s crimes would be found on a computer at his residence. Therefore, there was an adequate nexus between the unlawful activities and the place to be searched."

The Court also rejected a staleness claim, among other arguments. 

As to the aggravated identity theft counts, the Court concluded that the individual Microsoft email accounts at issue satisfied the definition of "a means of identification" for purposes 18 U.S.C. § 1028A(a)(1).

3/24/22: Case about the Juvenile Delinquency Act

 In United States v. Mendez, --- F.4th ---, No. 21-50086 (9th Cir. 2022), the Court considered "whether the JDA precludes the government from prosecuting a person as an adult for a continuing conspiracy that includes both pre- and post-majority conduct after the court dismisses a JDA information charging that person with conspiracy based solely on pre-majority conduct."

The Court held it does not and affirmed. 

First, the Court found it had interlocutory jurisdiction to hear the appeal.

As to the merits, "[w]e hold that a defendant who continues to participate in a conspiracy after reaching majority ratifies his prior conduct in the conspiracy, such that the conspiracy carries over into his majority. In this situation, the JDA is inapplicable."

"We also hold that, because Mendez allegedly continued to participate in the racketeering conspiracy on his eighteenth birthday and beyond, his racketeering conspiracy offense was not an act of juvenile delinquency under the JDA."

"Consequently, the district court has adult criminal jurisdiction over the majority-spanning RICO conspiracy offense charged in the SSI."

"Because Mendez’s participation in the conspiracy allegedly continued beyond his eighteenth birthday, it was no longer an act of juvenile delinquency under the JDA. Rather, the conduct became a continuing adult RICO conspiracy offense which began when he was a juvenile but continued when he allegedly engaged in additional acts in furtherance of the ongoing conspiracy after reaching the age of majority. The JDA does not shield Mendez from having to answer for this continuing criminal behavior as an adult."

"When a minor ratifies his pre-majority conduct by continuing to participate in an ongoing criminal conspiracy after his eighteenth birthday, the offense is not insulated by the JDA’s procedural enclave."

3/22/22: Finally a criminal decision

More than a month has passed since the last published criminal decision.  Today brings a case about appellate waivers and supervised release conditions.  

In United States v. Wells, --- F.4th ---, No. 19-10451 (9th Cir. 2022), the Court dismissed in part an appeal from the district court’s judgment and order imposing sentence and conditions of supervised release, vacated the judgment in part, and remanded with instructions to the district court to clarify a special condition of supervised release to avoid a constitutional violation.

The bulk of the appeal deals with appellate waivers and the exception for an "illegal sentence."  The Court explained, "a waiver of the right to appeal a sentence does not apply if (1) the defendant raises a challenge that the sentence violates the Constitution; (2) the constitutional claim directly challenges the sentence itself; and (3) the constitutional challenge is not based on any underlying constitutional right that was expressly and specifically waived by the appeal waiver as part of a valid plea agreement."

Under this standard, the Court held, "Wells waived his general right to appeal 'any aspect' of his sentence but did not expressly waive any specific constitutional right, such as any First Amendment challenges. Following our precedent, we must address the constitutional challenges on the merits."

The Court then considered the merits of certain supervised release challenges, but otherwise dismissed the appeal. 

As relevant, it turned to a condition providing: 

You must not possess or use a computer without the prior approval of the probation officer. ‘Computer’ includes any electronic device capable of accessing the internet or processing or storing data as described at 18 U.S.C. § 1030(e)(1) (including cell phones), and all peripheral devices.” As part of the statute governing computer fraud crimes, section 1030(e)(1) defines “computer” as “an electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device, but such term does not include an automated typewriter or typesetter, a portable hand held calculator, or other similar device.” 18 U.S.C. § 1030(e)(1).

The Court held this condition was unconstitutionally vague. 

We conclude that Special Condition No. 3 requires clarification. The definition of “computer” under the condition potentially could be understood to encompass common household objects. An “electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions” can include devices such as smart kitchen appliances that contain microprocessors, even though such appliances are not capable of receiving, storing, or otherwise processing materials of child pornography. To be clear, we do not make any determination on whether the special condition is overbroad, as it is an issue that is barred by the waiver. Certainly, the district court could have simply imposed a condition that bars the use of any device that uses electricity, which perhaps would be problematic for other reasons but is not “unconstitutionally vague.” But the definition for “computer” without any clarification here can lead to a situation where “men of common intelligence must necessarily guess at its meaning and differ as to its application.”

Of note, this case might be heading en banc because there is a conflict between United States v. Bibler, 495 F.3d 621 (9th Cir. 2007) and United States v. Joyce, 357 F.3d 921 (9th Cir. 2004), as to when appellate waivers apply.