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.