1/30/23: Interesting Fourth Amendment decision

In United States v. Baker, --- F.4th ---, No. 20-50314 (9th Cir. 2023), the Court affirmed Terrance Baker’s convictions for Hobbs Act robbery and conspiracy to commit robbery in violation of 18 U.S.C. § 1951(a) and a sentence enhancement under U.S.S.G. § 3C1.1, reversed his conviction for brandishing a firearm in violation of 18 U.S.C. § 924(c)(1)(A)(ii), and remanded for a reduction of sentence or retrial on the § 924(c) count.

The essential facts of the case are these: A week after a robbery, the LAPD  stopped and frisked Baker.  Although no weapons or contraband were found on Baker, an officer removed a car key from his belt loop without his consent and walked to a nearby parking lot in search of the car associated with the key. Baker denied having a car. When officers located a red Buick whose flashing headlights responded to the key fob, Baker fled and was apprehended a short distance away. A handgun was recovered from the car and later introduced at Baker's trial as the weapon used in the Sprint store robbery.

On appeal, the Court concluded that the handgun evidence was illegally obtained and should have been excluded at trial, and that this error prejudiced Baker as to the brandishing conviction but was harmless as to the convictions for Hobbs Act robbery and conspiracy.  

The Court explained, "[a] Terry stop must be “confined in scope” to a “carefully limited search of the outer clothing … in an attempt to discover weapons.”

It is well established that a Terry stop is a seizure of an individual and a frisk is a search of the individual’s person within the meaning of the Fourth Amendment. Assuming officers reasonably suspected that Baker was trespassing and armed, they were authorized to briefly detain him to ask questions related to trespassing and to pat him down for weapons. But after officers confirmed that Baker did not possess weapons or contraband, they turned to other purposes. Officer Byun removed a key visibly hanging from Baker’s belt loop and searched for a car that corresponded to it. Officers continued to detain Baker, not for the purpose of inquiring about trespass, but to ask him questions about whether he owned a car. Officer Byun made no claim that he suspected the car key was a weapon or contraband.

Had officers limited their Terry stop to a brief detention and protective patdown search of Baker, they would have had no occasion to search for a car in an adjoining parking lot that matched the key fob hanging from Baker’s belt loop. 

Where a “protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits will be suppressed.” 

According to the Government, Baker’s assertion that he had no car operated to deny any ownership interest in the car key. The Government identifies no precedent in support of the proposition that a person abandons an item in his possession by stating he does not own a different, related item. Even if such a claim had a basis in law, an individual does not relinquish a possessory interest in an item merely by stating he does not own the item.

The discovery of the handgun was the product of illegal police conduct, whether that conduct is framed as exceeding the permissible scope of a Terry stop or as the warrantless seizure of the car key. Where evidence is obtained from an unlawful search or seizure, the exclusionary rule renders inadmissible both “primary evidence obtained as a direct result of an illegal search or seizure” and “evidence later discovered and found to be derivative of an illegality,” known as “fruit of the poisonous tree.”

No reasonable interpretation of the record suggests that Baker consented to, or even was equivocal about, the officers taking the car key off his belt. The record clearly demonstrates that Officer Byun removed the car key from Baker’s belt loop during the patdown without asking for permission or consent. We have held that suppression is favored where an officer violates the law “with the purpose of extracting evidence against the defendant.” The officers’ conduct following the patdown of Baker was plainly “investigatory,” an “expedition for evidence in the hope that something might turn up.”

Baker’s flight from police does not qualify as an intervening circumstance because the red Buick was discovered as a consequence of the officers’ misconduct before Baker fled from officers. 

We conclude the Government has demonstrated beyond a reasonable doubt that the jury would have convicted Baker of robbery and conspiracy to commit robbery in violation of 18 U.S.C. § 1951(a) based on substantial independent evidence establishing Baker’s involvement in the robbery. However, there is reasonable doubt whether the jury would have convicted Baker of brandishing a firearm in violation of 18 U.S.C. § 924(c) absent the admission of the handgun, and we accordingly vacate his conviction of this count.

The Court also rejected several evidentiary arguments raised by Baker. 

1/25/23: case on attempted coercion and enticement in violation of 18 U.S.C. §§ 2422(b) and (2)

In United States v. Eller, --- F.4th ---, No. 20-10425 (9th Cir. 2023), the Court affirmed the conviction for attempted coercion and enticement of a child in violation of 18 U.S.C. §§ 2422(b) and 2.

In doing so, the Court held: "Whether Eller’s intended victims were 'willing' to engage in these acts is ultimately irrelevant (much like the minors’ existence in the first place)—our 'focus always remains on the defendant’s subjective intent because the statute is designed to protect children from the act of solicitation itself. And with that focus, the evidence of Eller’s guilt, which far exceeded the passages excerpted here, was overwhelming.”

1/17/23: Seizure of inmate funds and illegal sentences

In United States v. Lilliard, --- F.4th ---, No. 18-30106 (9th Cir. 2022), the Court affirmed the district court in part, vacated a sentence imposed for the violation of supervised release, and remanded for resentencing on the supervised release violation.

On appeal, "Lillard urges that the seizure of his inmate funds violated his Sixth Amendment right to counsel of choice and his Fifth Amendment due process right. He also contends that the district court’s imposition of an undisputedly illegal sentence for his supervised release violation is reversible error. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We conclude that the government’s seizure of Lillard’s inmate funds did not violate his right to either counsel of choice or due process. We also conclude that the district court’s imposition of an illegally excessive sentence for Lillard’s supervised release violation was plain error that requires vacatur of that sentence and remand for resentencing."

On the first issue, the question was "whether the government violates a defendant’s Sixth Amendment right to counsel of choice when it seizes untainted funds pursuant to a valid restitution order and judgment from a prior case."  

The Court held it did not.  "In sum, because the existing restitution order and § 3613(c) lien gave the government a substantial property interest in the funds in Lillard’s inmate account, the government’s seizure of those funds to satisfy Lillard’s restitution obligation did not violate Lillard’s Sixth Amendment right to counsel of choice."

As to the illegal sentence, the district court imposed a 36-month term for the supervised release violation, even though the statutory maximum was 24 months. 

"The government concedes that the imposition of an illegal sentence was an error that was plain. But the government contends that the illegal sentence did not affect Lillard’s substantial rights because his 36-month illegal sentence is shorter than and concurrent with his 196-month valid sentence in the conspiracy case."  

The Court disagreed. "We join the First Circuit in holding that an illegally excessive sentence violates a defendant’s substantial rights even if it runs concurrent with an equal or longer, valid sentence."  Further,  "the imposition of an illegally excessive sentence affects the fairness, integrity, or public reputation of judicial proceedings. As we have recognized in cases where an illegal sentence increases a defendant’s period of incarceration, 'it is a miscarriage of justice to give a person an illegal sentence.'"

1/11/23: Two criminal decisions today.

In United States v. Munoz, --- F.4th ---, No. 21-10360 (9th Cir. 2023), the Court affirmed the imposition of a two-level sentencing enhancement under U.S.S.G. § 2K2.1(b)(1)(A) on the ground that the offense involved three firearms.

The Court held that a firearm may be counted under § 2K2.1(b)(1) when the defendant’s possession of it violates a specific prohibition under state or federal law.  And because the firearm at issue -- a Polymer80, which is typically sold online as a kit of component parts -- was illegal for a felon to possess under state law, the enhancement was proper. 

In United States v. Amintobia, --- F.4th ---, No. 20-20039 (9th Cir. 2023), the Court affirmed conviction for attempting to procure naturalization unlawfully, in violation of 18 U.S.C. § 1425(a), and presenting a naturalization application with false statements, in violation of 18 U.S.C. § 1546(a).

This is a long opinion about the materiality standard for a conviction under these statutes based on providing false information in the naturalization process.  The Court discussed at length the two alternative ways in which a defendant’s false statements could have mattered to an immigration official and would therefore be material to the immigration decision. 

The Court concluded that, on this record, the false information was material and thus affirmed the convictions.  If you have a prosecution involving this issue, the opinion is a must read. 

1/6/23: RICO "person" and forfeiture

In United States v. Mongols Nation, --- F.4th ---, No. 19-50176 (9th Cir. 2023), the Court affirmed the Mongol Nation's RICO conviction and affirmed the district court’s order denying forfeiture of certain collective membership marks.  

"Mongol Nation appealed its conviction and sentence, and the Government cross-appealed the order denying forfeiture of the marks. The parties’ cross-appeals present two issues. First, did the district court lack jurisdiction because Mongol Nation does not qualify as a “person” as defined by RICO; and second, did the district court err in denying forfeiture of the Mongol Nation marks?" 

"We affirm. There was no defect in the district court’s jurisdiction stemming from RICO’s definition of 'person,' and we agree with the district court that denial of forfeiture was appropriate under these circumstances."

1/4/23: Case on juror appearing remotely

In the first published criminal decision of the year, United States v. Knight, --- F.4th ---, No. 21-10197 (9th Cir. 2023), the Court affirmed Edward Knight’s robbery convictions in a case in which a juror participated remotely during the first two days of trial.  

Although Knight repeatedly agreed to allow the juror to appear by Zoom, on appeal, he asserted that permitting a juror to participate remotely  violated his Fifth and Sixth Amendment rights, that the error was structural and could not be waived, and that he is therefore entitled to a new trial without having to show prejudice. 

The Court disagreed. It assumed without deciding that criminal defendants have a constitutional right to the in-person participation of jurors during their trial.  The Court held, however, that the right was not structural, and that Knight had waived any objection to the juror's remote appearance.  

"The procedure that the district court used in this case to confirm that the waiver was knowing, voluntary, and intelligent was sufficient. Knight was specifically informed on several occasions that he had the right to insist that all jurors be present in the courtroom and, when questioned by the district court, he indicated that he understood that he had that right. Knight was present when the various options for dealing with Juror 10’s situation were discussed, including the juror’s dismissal and replacement with an alternate. He was present as counsel identified all the things that could go wrong with remote participation. And he affirmatively indicated that he understood what was going on. Having had the opportunity to confer with counsel, Knight chose to waive the right to have all jurors participate in person and agreed to Juror 10’s remote participation." 

Thus, the Court concluded, "[t]he district court did not err when proceeding with a remote juror given Knight’s knowing, voluntary, and intelligent waiver of any right he may have had to the juror’s in-person participation."