12/28/23: Case on Allen charges

In United States v. Sproat, --- F.4th ---, No. 22-10249 (9th Cir 2023), the Court affirmed Robert Sproat’s securities fraud conviction in a case in which Sproat argued that the district court improperly coerced the jurors into reaching a unanimous guilty verdict by sending them home at 4:30 p.m. with the instruction to return the next day.

When a defendant “offer[s] facts that fairly support an inference that jurors who did not agree with the majority felt pressure from the court to give up their conscientiously held beliefs in order to secure a verdict,” the court “must proceed to the Allen charge analysis.”  Defendant has not offered such facts here. Telling the jurors to return the next day neither explicitly nor implicitly encouraged them to reach a unanimous verdict. 

12/27/23: Lengthy decision on analogue-based drug-trafficking prosecutions

In United States v. Galecki, --- F.4th ---, No. 20-10288 (9th Cir. 2023), the Court affirmed Benjamin Galecki’s and Charles Burton Ritchie’s drug-trafficking and money-laundering convictions in connection with their distribution of “spice,” a synthetic cannabinoid product; reversed their mail and wire fraud convictions; and remanded for further proceedings. The opinion is long and covers a host of issues.  

First, the defendants argued that all of their convictions should be set aside on the ground that the district court erred in refusing to suppress evidence seized during or as a result of a raid at Zencense’s Nevada warehouse. The Court held that because the warehouse was leased by the company and not by the defendants personally, they failed to establish that they have Fourth Amendment standing to challenge the search and that the district court therefore properly denied their motions to suppress.

Next, considering the record as a whole, the Court concluded that a rational jury could find beyond a reasonable doubt that the defendants had the scienter required for an Analogue Act case.

The Court also rejected the defendants' challenge to the deliberate indifference instruction given at trial, and also rejected the defendants' as-applied vagueness challenge to the statutory definition of a “controlled substance analogue” in the Analogue Act.

The Court found no error in district court’s failure to compel the Government to grant use immunity to two potential defense witnesses who would have testified as to the defendants’ scienter concerning whether XLR-11 was covered by the Analogue Act. The Court held that defendants failed to make the requisite showing of a direct contradiction in testimony that resulted in a fundamentally unfair distortion of the fact-finding process.

Rejecting the defendants’ contention that the evidence was insufficient to support their convictions for operating a continuing criminal enterprise in violation of the CSA, the Court held that the evidence was sufficient to permit a rational jury to conclude that the defendants acted “in concert” with five or more persons.

Turning to the mail and wire fraud convictions, the Court held that "[w]hile [a] misrepresentation may be material without inducing any actual reliance,” —as in the case of a false statement to an undercover law enforcement officer who is secretly aware of the defendant’s fraudulent scheme—there can be no materially false statement when both the listener and the hearer know and intend that the words being used have the same distinctive meaning."  Thus, the defendants were entitled to judgment of acquittal on these counts, because the Government presented no evidence that the specific alleged misrepresentations were materially false to anyone who bought Zencense’s products. 

Finally, the Court addressed whether the jury’s general verdict on the money laundering offenses—which did not specify on which predicate offenses it relied—may stand. The Court held that any error under Yates v. United States, 354 U.S. 298 (1957), in allowing the money laundering convictions to be based on the mail and wire fraud conduct, rather than on the CSA offenses, was harmless beyond a reasonable doubt.

12/26/23: Venue, Vicinage, and Section 1001 Essential Conduct & another case too.

The day after Christmas brings us two decisions

First, in United States v. Fortenberry, --- F.4th ---, No. 22-50144 (9th Cir. 2023), the Court reversed former congressman Jeffrey Fortenberry’s conviction for making false statements, in violation of 18 U.S.C. § 1001(a)(2), without prejudice to retrial in a proper venue, and remanded.

"The Constitution plainly requires that a criminal defendant be tried in the place where the criminal conduct occurred. The district court determined, and the government urges on appeal, that a Section 1001 violation occurs not only where a false statement is made but also where it has an effect on a federal investigation. We conclude that an effects-based test for venue of a Section 1001 offense has no support in the Constitution, the text of the statute, or historical practice. Consequently, we reverse Fortenberry’s conviction without prejudice to retrial in a proper venue."

"[H]istory confirms what the Constitution commands. The founding generation had a deep and abiding antipathy to letting the government arbitrarily choose a venue in criminal prosecutions. Implying an effects-based test for venue in Section 1001 cases, when Congress has not so specified, would allow just that, in derogation of our historical principles. Because a Section 1001 offense is complete at the time the false statement is uttered, and because no actual effect on federal authorities is necessary to sustain a conviction, the location of the crime must be understood to be the place where the defendant makes the statement."

"Fortenberry’s trial took place in a state where no charged crime was committed, and before a jury drawn from the vicinage of the federal agencies that investigated the defendant. The Constitution does not permit this. Fortenberry’s convictions are reversed so that he may be retried, if at all, in a proper venue. See Smith, 599 U.S. 236. The case is remanded for further proceedings that are consistent with this decision."

Next, in United States v. De Leon Guerrero, --- F.4th ---, No. 22-10042 (9th Cir. 2023), the Court affirmed De Leon Guerrero's convictions on two counts of attempted enticement of a minor, but reversed, vacated, and remanded as to three special conditions of supervised release.

This case arose from a sting in Guam created by federal agents to identify individuals “with access to Andersen Air Force Base who were willing to engage in sexual conversation or attempt to meet a minor for sexual contact.”  The Court determined that it was bound by its prior opinion in United States v. Lopez, 4 F.4th 706 (9th Cir. 2021).

The Court also vacated certain conditions of supervised release related to sex offenders.  

12/12/23: Case on Fourth Amendment trespass theory.

 In United States v. Esqueda, --- F.4th ---, No. 22-50170 (9th Cir. 2023), the Court affirmed the district court’s denial of Christopher Esqueda’s motion to suppress evidence in a case in which Esqueda entered a conditional plea to possessing a firearm as a felon, 18 U.S.C. § 922(g)(1).

The Court held that an undercover officer who physically enters a premises with express consent and secretly records only what he can see and hear by virtue of his consented entry does not trespass, physically intrude, or otherwise engage in a search violative of the Fourth Amendment. The Court held that the Supreme Court’s decisions in Jardines and Jones do not disturb this well-settled principle.

12/8/23: Good minor role decision

In United States v. Klensch, --- F.4th ---, No. 22-50222 (9th Cir. 2023), the Court vacated a sentence imposed following the defendant’s guilty plea to one count of transportation of an illegal alien, and remanded for resentencing. 

On appeal, Klensch argued that the district court applied the wrong legal standard when it determined that he was not entitled to a minor-role reduction under U.S.S.G. § 3B1.2 because he personally transported two men.

The opinion contains helpful language rejecting the government's argument for plain-error review.  As to the merits, the Court explained: 

Here, the district court’s analysis of the minor-role reduction is thin. It did not question the parties about or discuss at the sentencing hearing the factors that govern the comparative-liability analysis or the facts relevant to that analysis. Rather, after the parties’ arguments, it simply pronounced: "In this particular case, Mr. Klensch was the one transporting the individuals. And I don’t find that there is sufficient evidence that his role was minor in this case."

Here, the district court’s cursory explanation gives no indication that it considered the required factors or did any comparative analysis of Klensch’s conduct. While it was not required to mechanically analyze each factor or reference them verbatim on the record, Diaz, 884 F.3d at 914, 916, providing some explanation, even in general terms, of how the considerations embodied in the factors apply in this case “is part and parcel of considering” them.

The district court’s singular and cursory explanation for not granting a minor-role reduction, referencing only that Klensch drove the two men, indicates that the district court improperly relied “on courier conduct as dispositive,” despite the Guidelines’ clarification “that performance of an essential role . . . is not dispositive.”

While we generally assume that the district court applied the correct legal standard, we cannot do so when the record indicates the contrary.

The Court, therefore, vacated and remanded, although it affirmed the district court's imposition of a dangerous-weapons enhancement