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.