6/27/22: Two SCOTUS criminal decisions

In Ruan v. United States, 597 U.S. --- (2022), the Court considered the mens rea requirement for "[a] provision of the Controlled Substances Act, codified at 21 U. S. C. §841, [which] makes it a federal crime, '[e]xcept as authorized[,] . . . for any person knowingly or intentionally . . . to manufacture, distribute, or dispense . . . a controlled substance,' such as opioids."  

Specifically, the Court "granted the petitions and consolidated the cases to consider what mens rea applies to §841’s authorization exception."

The Court held, "§841’s 'knowingly or intentionally' mens rea applies to the 'except as authorized' clause. This means that once a defendant meets the burden of producing evidence that his or her conduct was 'authorized,' the Government must prove beyond a reasonable doubt that the defendant knowingly or intentionally acted in an unauthorized manner."

"[F]or purposes of a criminal conviction under §841, this requires proving that a defendant knew or intended that his or her conduct was unauthorized."

In Concepcion v. United States, 597 U.S. --- (2022),  "[t]he question . . . is whether a district court adjudicating a motion under the First Step Act may consider other intervening changes of law (such as changes to the Sentencing Guidelines) or changes of fact (such as behavior in prison) in adjudicating a First Step Act motion."  

"The Court holds that they may. It is only when Congress or the Constitution limits the scope of information that a district court may consider in deciding whether, and to what extent, to modify a sentence, that a district court’s discretion to consider information is restrained.  Nothing in the First Step Act contains such a limitation."

In short, '[t]he First Step Act does not require a district court to be persuaded by the nonfrivolous arguments raised by the parties before it, but it does require the court to consider them.

6/21/22: SCOTUS holds attempted Hobbs Act robbery is not a crime of violence

In United States v. Taylor, 569 U.S. --- (2022), the Supreme Court resolved the Circuit split on whether attempted Hobbs Act robbery qualifies as a “crime of violence” under 18 U. S. C. § 924(c)(3)(A).
Justice Gorsuch wrote for the majority and his opinion provides a clear explanation of the categorical approach. If you practice in federal court, you should read it.

"To determine whether a federal felony may serve as a predicate for a conviction and sentence under the elements clause [] we must apply a 'categorical approach.' We must because the clause poses the question whether the federal felony at issue 'has as an element the use, attempted use, or threatened use of physical force.' And answering that question does not require—in fact, it precludes—an inquiry into how any particular defendant may commit the crime. The only relevant question is whether the federal felony at issue always requires the government to prove—beyond a reasonable doubt, as an element of its case—the use, attempted use, or threatened use of force."

"Whatever one might say about completed Hobbs Act robbery, attempted Hobbs Act robbery does not satisfy the elements clause. Yes, to secure a conviction the government must show an intention to take property by force or threat, along with a substantial step toward achieving that object. But an intention is just that, no more. And whatever a substantial step requires, it does not require the government to prove that the defendant used, attempted to use, or even threatened to use force against another person or his property."

Importantly, the Court also rejected the government's attempt to "fault[] Mr. Taylor for failing to identify a single case in which it has prosecuted someone for attempted Hobbs Act robbery without proving a communicated threat." The Court stated: "what does that prove? Put aside the fact that Mr. Taylor has identified cases in which the government has apparently convicted individuals for attempted Hobbs Act robbery without proving a communicated threat. Put aside the oddity of placing a burden on the defendant to present empirical evidence about the government’s own prosecutorial habits. Put aside, too, the practical challenges such a burden would present in a world where most cases end in plea agreements, and not all of those cases make their way into easily accessible commercial databases. An even more fundamental and by now familiar problem lurks here. The government’s theory cannot be squared with the statute’s terms. To determine whether a federal felony qualifies as a crime of violence, § 924(c)(3)(A) doesn’t ask whether the crime is sometimes or even usually associated with communicated threats of force (or, for that matter, with the actual or attempted use of force). It asks whether the government must prove, as an element of its case, the use, attempted use, or threatened use of force."

The Court also distinguished Duenas-Alvarez and its “realistic probability” test. "First, the immigration statute at issue in Duenas-Alvarez required a federal court to make a judgment about the meaning of a state statute. Appreciating the respect due state courts as the final arbiters of state law in our federal system, this Court reasoned that it made sense to consult how a state court would interpret its own State’s laws. Meanwhile, no such federalism concern is in play here. The statute before us asks only whether the elements of one federal law align with those prescribed in another. Second, in Duenas-Alvarez the elements of the relevant state and federal offenses clearly overlapped and the only question the Court faced was whether state courts also 'appl[ied] the statute in [a] special (nongeneric) manner.' Here, we do not reach that question because there is no overlap to begin with. Attempted Hobbs Act robbery does not require proof of any of the elements § 924(c)(3)(A) demands. That ends the inquiry, and nothing in Duenas-Alvarez suggests otherwise."

6/15/22: Case on Rule 11 and appeal waivers

In United States v. Davis, --- F.4th ---, No. 20-50274 (9th Cir. 2022), the Court affirmed in a case in which the defendant argued that his appellate waiver was unenforceable because the district court violated Fed. R. Crim. P. 11(b)(1)(N), which provides that the district court must address the defendant personally and determine that the defendant understands the terms of any appellate waiver.

Because Davis did not object, the Court applied plain-error review and found none.  

"Here, [] the appellate waiver was raised just moments after the Rule 11 plea colloquy and before the change-of-plea hearing concluded."

"On this record, we conclude that the district court’s plea colloquy at most constituted 'a technical violation of Rule 11,' but not a plain error that affected David’s substantial rights."

6/14/22: Rule 41 violation for failing to supply a complete copy of the warrant

In United States v. Manaku, --- F4th ---, No. 20-10069 (9th Cir. 2022), the Court  affirmed the district court’s denial of Grant Manaku’s pretrial motion to suppress evidence, which asserted that FBI agents executing a search warrant at his residence deliberately violated Fed. R. Crim. P. 41(f)(1)(C) by failing to supply a complete copy of the warrant.

The Court explained, under Rule 41, "the officer executing the warrant 'must give a copy of the warrant and a receipt for the property taken to the person from whom, or from whose premises, the property was taken or leave a copy of the warrant and receipt at the place where the officer took the property.'  Fed. R. Crim. P. 41(f)(1)(C)."

"Here, by providing only the face page of the warrant without its attachments, the FBI violated Rule 41(f)(1)(C)'s requirement to deliver a complete copy of the warrant.  When a search warrant relies on attachments to satisfy the constitutional requirement that the warrant describe with particularity 'the place to be searched, and the persons or things to be seized,' U.S. Const. amend. IV, those attachments form an essential part of the warrant and must be delivered with the warrant under Rule 41(d)."

"A Rule 41 violation in the execution of a search warrant, however, does not necessarily mean that the evidence seized during that search must be suppressed.  Suppression is automatic only for “fundamental” violations of Rule 41, at least without any applicable exception to the exclusionary rule.  Id. at 1115.  We have described such “fundamental” violations of Rule 41 as “those that result in clear constitutional violations.”  Any other violations of the rule are “technical errors” that “require suppression only if the defendant can show either that (1) he was prejudiced by the error, or (2) there is evidence of ‘deliberate disregard of the rule.’”  

"Manaku contends neither that the violation here was fundamental nor that he was prejudiced by it.  This is not, for example, a case in which the agents delivered an incomplete warrant after searching places not authorized by the warrant or seizing items not specified in it. The only remaining question, therefore, is whether the district court correctly concluded that the agents’ failure to deliver a complete copy of the warrant at the completion of the search was merely negligent, rather than the product of a “deliberate disregard of the rule.”  We find no error in the district court’s conclusion."

6/13/22: 18 U.S.C. § 844(i) is not a crime of violence under 18 U.S.C. § 924(c)(3)

In United States v. Mathews, --- F.4th ---, No. 19-56110 (9th Cir. 2022), the Court reversed the district court’s denial of Richard Mathews’s 28 U.S.C. § 2255 motion and remanded with instructions to vacate his conviction and sentence under 18 U.S.C. § 924(c)(1) for use and carrying an explosive device during a crime of violence.

"We agree with the parties that Mathews’s property-damage conviction is not categorically a crime of violence and, therefore, cannot serve as a predicate crime for his firearm conviction. Section 924(c) defines a crime of violence as an offense committed against “the person or property of another.” 18 U.S.C. § 924(c)(3)(A) (emphasis added). A person can be convicted under Section 844(i) for using an explosive to destroy his or her own property. As such, Section 844(i) criminalizes conduct that falls outside Section 924(c)’s definition of “crime of violence,” and there is not a categorical match between the two statutes."

6/10/22: Two sentencing cases today

First, in United States v. Merrell, --- F.4th ---, No. 20-30183 (9th Cir. 2022), the Court vacated the sentences imposed at resentencing on two 18 U.S.C. § 924(c) counts and remanded for resentencing. 

The issue was whether the First Step Act applies when sentences imposed before the Act’s passage are vacated and defendants are resentenced after the Act’s passage.    

"In § 403(b) of the First Step Act, entitled “Applicability to Pending Cases,” Congress provided that the statute applied to “any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.  The question is how to interpret the second clause in § 403(b), which applies the Act to such cases “if a sentence for the offense has not been imposed as of such date of enactment.”  More particularly, the issue is whether that clause bars application of the Act to cases like these, in which sentences imposed before the date of enactment were subsequently vacated, and new sentences were imposed after the date of enactment."

The Court held it did not. 

"We start from the settled principle that the vacatur of appellants’ original sentences legally 'wiped the slate clean.'"

"We note that Congress enacted the First Step Act to reduce the severity of sentences for certain 'stacked' charges, including § 924(c) convictions."

A "vacated sentence—a legal nullity— therefore cannot form the legal predicate for the exclusion from the application of the First Step Act—which Congress expressly made retroactive under § 403(b)."

Second, in United States v. Tagatac, --- F.4th ---, No. 21-10133 (9th Cir. 2022), the Court affirmed the sentence.   The Court held that Hawaii's second-degree robbery statute, Haw. Rev. Stat. § 708-841 (1986), was divisible and Tagatac’s conviction under subsection (b) was a crime of violence.

6/7/22: Case on 18 U.S.C. § 2251(a)

In United States v. Mendez, --- F.4th ---, No. 20-30007 (9th Cir. 2022), the Court affirmed a conviction under 18 U.S.C. § 2251(a), which criminalizes the conduct of any person who “employs, uses, persuades, induces, entices, or coerces” a minor “to engage in . . . sexually explicit conduct for the purpose of producing any visual depiction of such conduct.”

Mendez placed Wi-Fi cameras in the eye of a stuffed animal and surreptitiously filmed a teenage girl masturbating.  He argued the evidence was insufficient because he did not cause her to engage in sexual conduct. 

The Ninth Circuit rejected his argument.  The Court concluded that, based on its prior precedent, his conduct fell within the "uses" aspect of the statute.  

"Mendez did not necessarily induce the minor’s sexually explicit conduct.  But he did place hidden cameras in a teenage girl’s bedroom—active conduct in the heartland of a statute criminalizing the production of child pornography. "

"The evidence was sufficient under § 2251(a) and (e) to support Mendez’s conviction for attempting to “use” a minor “to engage in . . . sexually explicit conduct” for the purpose of producing a visual depiction of that conduct.  § 2251(a)."