12/29/22: Case on inventory searches

In United States v. Anderson, --- F.4th ---, No. 20-50345 (9th Cir. 2022), a divided panel affirmed the district court’s order denying Jonathan Anderson’s motion to suppress a handgun found during an inventory search of his truck.   

The per curiam majority held that the district court did not err in concluding the government established a valid community caretaking purpose existed for impounding and inventorying Anderson’s truck before the search was conducted.  

One partial dissent argued that the case should be remanded for further fact finding because of inconsistent testimony at the suppression hearing. 

The other partial dissent would have reversed based on the officers' failure to comply with their departments’ administrative policies governing inventory searches. 

If you have a case involving an inventory search, this opinion is a must read. 

12/28/22: Case on enticement of a child by means of interstate commerce

In United States v. Macapagal, --- F.4th ---, No. 21-10262 (9th Cir. 2022), the Court affirmed Noel Macapagal’s conviction for attempted enticement of a child by means of interstate commerce in violation of 18 U.S.C. § 2422(b).  

The case arose from a sting operation in which a federal agent, using internet and telephone communications, posed as a mother who wanted Macapagal to engage in sexual conduct with her daughters. 

The thrust of the opinion addresses Macapagal's argument that the use of an adult intermediary for his communications -- the purported mother -- rendered the conviction invalid.  He contended that § 2422(b) required the government to prove direct communication with someone he believed to be a minor, not with an adult. 

The Court rejected this contention, agreeing with all the other circuits that have considered similar challenges, and have concluded that the requisite intent to entice a minor is not defeated by use of an adult intermediary. 

The Court also rejected several other challenges to the conviction, but it vacated a special condition of supervised release as unconstitutionally vague. 

At sentencing, the district court imposed a special condition that stated: “You must not possess and/or use computers (as defined in 18 U.S.C. § 1030(e)(1)) or other electronic communications or data storage devices or media, without the prior approval of the probation officer.”  The condition was problematic because the definition of computers in 1030(e)(1) is overbroad. 

12/22/22: Case on the categorical approach in the solicitation context

In United States v. Linehan, --- F.4th ---, No. 21-50206 (9th Cir. 2022), the Court affirmed David Linehan’s conviction for soliciting the transportation of an explosive device in commerce with the knowledge or intent that it would be used to kill, injure, or intimidate a person or damage property, in violation of 18 U.S.C. §§ 373(a) and 844(d); reversed his conviction for soliciting the use of facilities of commerce with the intent that a murder be committed, in violation of 18 U.S.C. §§ 373(a) and 1958(a); and remanded for resentencing.

The prosecution was based on the fact that Linehan, while in prison on federal charges, solicited others to deliver a bomb to the home of a witness who had testified against him at his criminal trial.

On appeal, the Court "address[ed] whether, under the categorical approach, two predicate crimes— transportation of an explosive, 18 U.S.C. § 844(d), and using a facility of interstate commerce with intent that a murder be committed, 18 U.S.C. § 1958(a)—are crimes of violence under § 373(a)."  It held, "a violation of § 844(d) is a categorical match to § 373(a), but that a violation of § 1958(a) is not, a point the government now concedes." 

The opinion contains a lengthy categorical analysis of the predicate crimes, with a focus on "attempted use of force."  

It is very hard to summarize the discussion in a way that would be beneficial.  So, if you have a case where you are litigating whether a predicate qualifies as a categorical crime of violence, this case is a must read. 

12/21/22: Case on Franks issues and Fourth Amendment standing

In United States v. Fisher, --- F.4th ---, No. 20-10098 (9th Cir. 2022), the Court affirmed the district court’s orders denying defendants Justin and Joshua Fisher’s joint motions to suppress evidence from two searches, in a case in which the defendants entered conditional guilty pleas to various sexual offenses against children.

The case centers around whether an affidavit for a search warrant contained false statements and/or material omissions.  

"Defendants first argue that the district court erred in denying their first motion to suppress because the affidavit supporting the probable cause search warrant for Defendant Justin Fisher’s residence contained material, intentionally false and/or reckless statements and omissions that misled the issuing judge."

"Defendants further argue that the district court erred in denying their second motion to suppress for lack of standing because, contrary to the district court’s finding, Defendants had not abandoned certain technological devices seized from the residence after it was sold to a new owner."

The Court rejected both of these arguments.  

As to the first, it found: "Defendants fail to point to any misstatements or omissions in Detective Miller’s affidavit that, if stricken or supplemented, would undermine the reasonableness of the ultimate probable cause determination."

As to the second, "We find that the district court did not clearly err by finding abandonment here, and accordingly, we conclude that Defendants lacked standing to challenge the 2018 search of the devices recovered from the Burkehaven Avenue Residence."

12/20/22: Elements or means

In United States v. Barai, --- F.4th ---, No. 20-10318 (9th Cir. 2022), the Court affirmed the defendants' convictions for conspiracy to commit forced labor in violation of 18 U.S.C. § 1594(b) and two substantive counts of forced labor in violation of 18 U.S.C. § 1589(a). 

On appeal, the defendants challenged the district court’s refusal to give a specific unanimity instruction with respect to the means by which they obtained forced labor.  

In affirming the district court, the Ninth Circuit explained: "Calling a particular part of a statute an 'element' as opposed to a “means,” is legally significant. Relevant here, 'a jury in a federal criminal case cannot convict unless it unanimously finds that the Government has proved each element.' However, 'a federal jury need not always decide unanimously which of several possible sets of underlying brute facts make up a particular element, say, which of several possible means the defendant used to commit an element of the crime.' Thus, the United States Supreme Court has drawn a distinction between the legal elements of a crime and the factual means by which a defendant may commit that crime."

The Court continued, "the question in this case is: Are the listed alternatives in the forced labor statute elements or means? We hold that the listed alternatives of 18 U.S.C. § 1589(a) are factual means, rather than distinct legal elements. The district court therefore did not abuse its discretion when it denied the defendants’ proposed specific unanimity instruction."  

12/14/22: Case on statements to government investigators made under threat of loss of employment

In United States v. Wells, --- F.4th ---, No. 20-30009 (9th Cir. 2022), the Court affirmed James Wells’s convictions for killing two co-workers at a Coast Guard station.

On appeal, Wells argued that under the Fifth Amendment and Garrity v. New Jersey, 385 U.S. 493 (1967), statements he made to government investigators should have been suppressed because they were made under threat of loss of employment.

The Court rejected the claim.  It held that, in the absence of a direct threat of loss of employment, the appropriate framework for the court is to consider both the public employee’s subjective belief and the objective reasonableness of that belief to determine whether the employee’s statements were improperly coerced.  Only when both elements are satisfied is the employee entitled to suppression of his statements under Garrity.  Applying this rule, the Court concluded suppression was not warranted.

The Court, however, vacated a restitution order because the district court improperly determined that it had discretion under the All Writs Act to order garnishment of a higher percentage of monthly payments than otherwise authorized under the Mandatory Victims Restitution Act. 

12/5/22: It does not take a locomotive engineer to recognize that forcing a freight train to come to a sudden stop endangers the safety of those on and around it

In United States v. Reiche, --- F.4th ---, No. 21-30275 (9th Cir. 2022), the Court affirmed the sentence imposed on Ellen Reiche for Violence Against Railroad Carriers in violation of 18 U.S.C. § 1992(a)(5). 

The relevant facts were that, in order to stop a train carrying crude oil and strike a blow against the fossil fuel industry, Reiche secretly placed a shunt on the railroad tracks to tamper with the rail signaling system.

The Court held that the district court did not err in applying a sentencing enhancement pursuant to U.S.S.G. § 2A5.2(a)(2) for recklessly endangering the safety of a mass transportation vehicle.

"It does not take a locomotive engineer to recognize that forcing a freight train to come to a sudden stop endangers the safety of those on and around it.  Indeed, it is a common trope even in cartoons and comics that a speeding train cannot stop quickly and may derail in trying to do so. And common sense underscores the danger of having a speeding vehicle stop suddenly: Imagine if someone placed nails on a road to cause a flat tire in a bid to stop cars. Perhaps the car could safely come to a stop—but any reasonable person would recognize that this is a risky thing to do because the car, for example, may careen off the road or spin out of control."

The Court further held that the district court properly denied a reduction for acceptance of responsibility post-trial. 

12/2/22: Good case on intended loss from the 3d Cir.

In United States v. Banks, --- F.4th ---, No. 19-3812 (3d Cir. 2022), the Court vacated the defendant's fraud sentence, concluding "that the loss enhancement in the Guideline’s application notes impermissibly expands the word 'loss' to include both intended loss and actual loss." 

Our review of common dictionary definitions of “loss” point to an ordinary meaning of “actual loss.” None of these definitions suggest an ordinary understanding that “loss” means “intended loss.” To be sure, in context, “loss” could mean pecuniary or non-pecuniary loss and could mean actual or intended loss. We need not decide, however, whether one clear meaning of the word “loss” emerges broadly, covering every application of the word. Rather, we must decide whether, in the context of a sentence enhancement for basic economic offenses, the ordinary meaning of the word “loss” is the loss the victim actually suffered. We conclude it is. 

Because the commentary expands the definition of “loss” by explaining that generally “loss is the greater of actual loss or intended loss,” we accord the commentary no weight. Banks is thus entitled to be resentenced without the 12-point intended-loss enhancement in § 2B1.1.