12/30/24: Two decisions today

In United States v. DeFrance, --- F.4th ---, No. 23-2409 (9th Cir. 2024), the Court reversed Michael Blake DeFrance’s conviction for violating 18 U.S.C. § 922(g)(9), which forbids the possession of firearms by anyone convicted of a “misdemeanor crime of domestic violence,” vacated his sentence, and remanded.

We address whether a conviction for partner or family member assault (PFMA) under Montana Code Annotated section 45-5-206(1)(a) qualifies as a “misdemeanor crime of domestic violence” for purposes of 18 U.S.C. § 922(g)(9). Because Montana’s PFMA statute can be violated by inflicting emotional rather than physical injury, we conclude that it does not “ha[ve], as an element, the use or attempted use of physical force.” 18 U.S.C. § 921(a)(33)(A)(ii). Accordingly, a conviction for violating this statute does not qualify as a “misdemeanor crime of domestic violence,” and Appellant’s § 922(g)(9) conviction must be reversed.

Here, our conclusion that section 45-5- 206(1)(a)’s overbreadth is evident from its text considers the statute’s language as well as Montana case law. Because Montana’s courts have the final say in construing Montana assault statutes, the similarities between the words of the Tennessee and Montana statutes do not foreclose our conclusion that the Montana statute is materially broader. Indeed, as interpreted by Castro, Montana case law compels the conclusion that the use of physical force is not an element of 45-5-206(1)(a), because the statute may be violated by inflicting only emotional injury.

Next, in United States v. In, --- F.4th ---, No. 23-2917 (9th Cir. 2024), the Court reversed the district court’s order granting Larry Seng In’s motion to suppress a gun found in his car during a traffic stop, and remanded for trial.

Larry Seng In (“In”) was charged in a federal indictment with being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) after a gun was found in his car during a traffic stop. In moved to suppress the gun in district court, contending that it was obtained as a result of an unlawful de facto arrest. In did not challenge the officers’ initial traffic stop as an unlawful Terry stop. Instead, In argued that the officers’ actions, in particular their decision to handcuff him, escalated a valid Terry stop into an unlawful de facto arrest because the officers handcuffed him before they had probable cause to believe that he was prohibited from possessing the gun.

The district court rejected the magistrate judge’s recommendation and granted In’s motion to suppress, holding that the gun was obtained as a result of an unlawful de facto arrest without probable cause. The United States (“the Government”) moved for reconsideration, and the district court denied the motion. The Government appealed the district court’s order granting In’s suppression motion, and we now must decide whether the traffic stop became a de facto arrest. We have jurisdiction under 18 U.S.C. § 3731. We hold that the traffic stop did not turn into a de facto arrest, and we reverse the district court. 

In this case, the officers’ decision to handcuff In made the traffic stop more intrusive than a typical Terry stop, but the use of handcuffs was reasonable under the circumstances and did not convert the stop into an arrest.

Because the officers were patrolling on bicycles, they could not place In inside a patrol car while conducting their investigation. If the officers had not handcuffed In, they would have had to rely on their ability to physically overpower In if he attempted to reach for the gun that was visible and loose on the floor of the backseat of the car. Although In did not actually reach for the exposed gun, the question is whether officers had a sufficient basis to fear for their safety to warrant the intrusiveness of the actions taken.  Considering the totality of the circumstances, we hold that the officers had a sufficient and reasonable basis to fear for their safety, justifying their decision to handcuff In so that their safety was assured during their investigation. The officers had good reason to handcuff In to prevent him from being able to access the unsecured gun on the floor of the backseat. The officers were eliminating the possibility that In could gain access to the unsecured gun. That conduct properly protected both the officers and the general public. And this is true even though Nevada is an open carry state. See Nev. Const. art. I, § 11. Because the officers’ conduct was reasonable under the circumstances, the Terry stop did not escalate into a de facto arrest without probable cause. 

12/26/24: Case on prior inconsistent statement under Fed. R. Evid. 801(d)(1)(A)

In United States v. Shuemake, --- F.4th ---, No. 22-30210 (9th Cir. 2024), the Court affirmed Joshua Shuemake’s conviction for obstruction of justice in a case in which the district court admitted his friend Luke Ulavale’s grand jury testimony implicating Shuemake after Ulavale tried to backtrack at trial claiming memory loss.

Under the prior inconsistent statement rule of the Federal Rules of Evidence, a district court can admit an earlier sworn statement if a witness on the stand contradicts that statement. FED. R. EVID. 801(d)(1)(A). But can a court admit a prior statement if a witness claims at trial that he does not remember saying it? We hold that a feigned lack of recollection may fall within Rule 801’s prior inconsistent statement provision. We thus reject Joshua Shuemake’s argument that the district court erred in admitting his friend’s grand jury testimony implicating Shuemake after he tried to backtrack at trial by claiming memory loss. Shuemake’s conviction for obstruction of justice is affirmed.

To be clear, we do not hold that a court can admit earlier sworn testimony as a prior inconsistent statement merely because a witness asserts that he cannot recall that prior statement. After all, a witness genuinely may not remember his earlier testimony; in that case, a lawyer can rely on other evidentiary rules such as refreshing the witness’ recollection (Rule 612) or using the recorded recollection exception to the hearsay rule (Rule 803(5)). Under the prior inconsistent statement rule, the dispositive inquiry is whether both the trial testimony and the prior testimony could be equally truthful when asserted. In making this assessment, trial courts can consider various factors—such as (i) inexplicable or questionable explanations for the lack of recollection, (ii) vague and evasive responses suggesting a refusal to answer truthfully, and (iii) potentially conflicting testimony—as signs that a witness is feigning memory loss. Courts must engage in this fact-intensive inquiry to smoke out a witness’ attempt to walk away from prior sworn testimony by asserting a lack of memory.

12/19/24: Government appeal of selective prosecution discovery order

In United States v. Wilson, --- F.4th ---, No. 23-50016 (9th Cir. 2024), the Court reversed the district court’s selective-prosecution discovery order, reversed the district court’s order dismissing without prejudice an indictment charging Defendants with arson, and remanded for further proceedings. 

Defendants moved to dismiss their indictment, arguing that they were unconstitutionally singled out for prosecution based on the perception that they held anti-government views. Alternatively, Defendants sought discovery on their selective-prosecution claim. The district court denied Defendants’ motion for dismissal but granted them discovery regarding selective prosecution. But after the Government indicated that it would seek appellate review rather than produce the ordered discovery, the district court dismissed the indictment without prejudice.

The first issue that we must resolve is whether we have jurisdiction.

In criminal cases, we have jurisdiction over Government appeals from three types of decisions: (1) an order “dismissing an indictment or information or granting a new trial after verdict or judgment” unless double jeopardy has attached; (2) an order “suppressing or excluding evidence or requiring the return of seized property” made before jeopardy has attached or a verdict rendered; and (3) orders “granting the release of a person charged with or convicted of an offense, or denying a motion for revocation of, or modification of the conditions of, a decision or order granting release.” 18 U.S.C. § 3731. Congress instructs us to “liberally construe[]” these provisions.

Although this case seems to fall into the first category because the Government appeals the district court’s order dismissing Defendants’ indictment without prejudice, Defendants argue that we lack jurisdiction. Defendants assert that § 3731 cabins the statutory authorization to appeal to only final judgments and that the Government manufactured “review of an otherwise non-appealable [discovery] order that is not specifically listed in § 3731” in a way that raises “serious constitutional and prudential problems.”

Nothing in the text of § 3731 indicates that appellate jurisdiction exists only for final decisions or orders. This contrasts with the statute governing appellate jurisdiction in civil cases, which does limit our jurisdiction to appeals “from all final decisions of the district courts.” 28 U.S.C. § 1291. And as the Seventh Circuit recounted, the plain language of § 3731 makes multiple non-final decisions appealable. Thus, § 3731 is “a statutory exception to the final judgment rule.”

This is not a close call; we have jurisdiction over this appeal.

We review for an abuse of discretion a district court’s determination that the defendant has made the requisite showing to obtain discovery on a claim of unconstitutional selective prosecution. Id. at 851–52. “The court necessarily abuses its discretion when it applies the wrong legal standard.” 

Given the separation-of-powers concerns at play, the standard for proving selective prosecution is “a demanding one.” The Supreme Court has established a two-factor standard: the defendant must demonstrate “clear evidence,” first that the decision to prosecute “had a discriminatory effect and[, second,] that it was motivated by a discriminatory purpose.”  “[T]he showing necessary to obtain discovery” on a selective-prosecution claim is “correspondingly rigorous,” and is intended to be a “significant barrier to the litigation of insubstantial claims,” id. at 464. A defendant seeking “discovery on a claim of selective prosecution must show some evidence of both discriminatory effect and discriminatory intent.” Here, the district court correctly articulated this governing test but erred in applying it.

To show discriminatory effect sufficient to warrant discovery, a defendant must “produce some evidence that similarly situated defendants . . . could have been prosecuted, but were not.”

Following Armstrong and Turner, we resolve this case on the discriminatory-effect factor alone and decline to address whether Defendants presented evidence of discriminatory intent. Because Defendants failed to meet their burden to produce some evidence that similarly situated individuals could have been prosecuted but were not, we reverse the district court’s selective-prosecution discovery order and its dismissal of the Defendants’ indictment without prejudice, and we remand for further proceedings consistent with this opinion.

12/18/24: Case about intended loss under the prior version of U.S.S.G. § 2B1.1(b)(1)(I)

In United States v. Hackett, --- F.4th ---, No. 22-50142 (9th Cir. 2024), a divided Court affirmed the district court’s judgment in a case in which Andrew Hackett, a stock promoter, was convicted and sentenced for conspiracy to commit securities fraud and securities fraud in connection with the manipulative trading of a public company’s stock.

The district court imposed a 16-level sentencing enhancement under the pre-November 1, 2024, version of U.S.S.G. § 2B1.1(b)(1)(I), which applies if the loss exceeds more than $1.5 million.  In doing so, the court relied on intended loss, rather than actual loss.

Hackett argued on appeal that the district court erred by following the commentary to § 2B1.1, which defines “loss” as the “greater of actual loss or intended loss.” U.S.S.G. § 2B1.1 cmt. n.3(A).

The majority reviewed for plain error because Hackett’s objection to the district court’s loss calculation was not sufficiently specific to preserve de novo review.  The majority held that the district court’s reliance upon the definition of “loss” set forth in the commentary withstood plain error review because any error was not clear or obvious given this court’s precedent recognizing both actual and intended loss, and because there is a lack of consensus among the circuit courts on this issue.

In a cogent dissent, Judge Berzon explained why the majority was wrong. 

12/4/24: Three decisions today

The Ninth published three criminal decisions today.  

In United States v. Knight, --- F.4th ---, No. 23-962 (9th Cir. 2024), the Court affirmed a special condition of supervised release restricting the defendant's viewing or use of pornography following his conviction for child pornography possession. The Court rejected the argument that the condition was impermissibly overbroad to the extent it did not exempt use of such materials for purposes of asserting a future collateral challenge to the defendant's conviction and sentence. The Court rejected this contention because, unlike in Cope, the condition imposed on the defendant applied only to visual depictions of pornography and not to materials that merely describe child pornography.

In United States v. Abouammo, --- F.4th ---, No. 22-10348 (9th Cir. 2024), the Court affirmed Ahmad Abouammo’s convictions for acting as an unregistered agent of a foreign government or official, 18 U.S.C. § 951; conspiracy to commit wire and honest services fraud, 18 U.S.C. § 1349; wire and honest services fraud, 18 U.S.C. §§ 1343, 1346; international money laundering, 18 U.S.C. § 1956(a)(2)(B)(i); and falsification of records to obstruct a federal investigation, 18 U.S.C. § 1519.

Abouammo, an employee at the company then known as Twitter, allegedly provided confidential information about dissident Saudi Twitter users to Bader Binasaker, a close associate of Saudi Crown Prince Mohammed bin Salman. In return, Abouammo received a watch and hundreds of thousands of dollars in payments from Binasaker.

Abouammo first argues that the evidence was insufficient to support his conviction for acting as an agent of a foreign government without prior notification to the Attorney General, in violation of 18 U.S.C. § 951.

We hold that sufficient evidence supports Abouammo’s § 951 conviction.

Although we do not exhaustively address all of its particulars, § 951 has three essential elements: “(1) a person must act; (2) the action must be taken at the direction of or under the control of a foreign government [or official]; and (3) the person must fail to notify the Attorney General before taking such action.”

In this case, there is no dispute over the first and third elements. The issue instead concerns the second: whether Abouammo acted “subject to the direction or control of a foreign government or official.” Abouammo’s sole argument on appeal is that the evidence was insufficient to convict him under § 951 because Binasaker was not a foreign “official.” In Abouammo’s view, a foreign official must “hold[] public office or otherwise serve[] in an official position in the foreign government,” and Binasaker does not meet this test because he “lacked any official role or position in the Saudi government during the relevant period.”

We conclude that it is unnecessary to resolve this issue because an alternative theory—that Abouammo acted at the behest of a foreign government—sufficiently supports the jury’s verdict. Regardless, a rational jury could conclude that Binasaker was a foreign “official” even under Abouammo’s narrow construction of that term.

We have no occasion to conduct a full examination of the term “official” in 18 U.S.C. § 951(d) or to endorse Abouammo’s narrower definition. We hold simply that even under that narrower definition, a reasonable juror could find that Binasaker was a foreign “official.”

Abouammo next challenges his convictions for money laundering and wire fraud as barred by the statute of limitations. [W]e hold that these charges were timely. 

We [] hold that when the government secured a superseding indictment within six months of the dismissal of the April 7, 2020 information, which was filed within the limitations period, the government complied with 18 U.S.C. § 3288, so that the superseding indictment was timely [despite the fact that Abouammo never waived indictment].  

Abouammo next argues that his conviction for falsification of records with intent to obstruct a federal investigation, 18 U.S.C. § 1519, should be dismissed due to improper venue.  [W]e hold that venue on Abouammo’s § 1519 charge was proper in the Northern District of California, where the allegedly obstructed federal investigation was taking place.

The question before us is whether venue for a charge under 18 U.S.C. § 1519 is limited to the district in which the false document was prepared, or whether venue can also lie in the district in which the obstructed federal investigation was taking place. It appears that no circuit has yet to address this question in the context of § 1519.

We hold that a prosecution under § 1519 may take place in the venue where documents were wrongfully falsified or in the venue in which the obstructed federal investigation was taking place. Abouammo’s misconduct properly subjected him to prosecution in either venue. We affirm Abouammo’s conviction under § 1519.

In United States v. Dorsey, --- F.4th ---, No. 19-50182 (9th Cir. 2024), the Court affirmed Dominic Dorsey’s conviction for multiple federal crimes arising from a spree of robberies committed by two disguised men.

Under Federal Rule of Evidence 701, a lay witness may offer testimony in the form of an opinion only if it is “helpful . . . to determining a fact in issue.” Fed. R. Evid. 701(b). But when a witness identifies an unknown person in an image, that opinion is not “helpful” under Rule 701 unless the witness has some personal knowledge or experience that supports a more informed identification than the jury can make on its own. The detective opined that the disguised robbers were Dorsey and Bailey without having that personal knowledge or experience. Thus, his identification opinions were not helpful and should not have been admitted. But the district court’s error in allowing the testimony was harmless, and Dorsey’s additional bases for appeal lack merit.

Although much of Detective Marsden’s lay opinion testimony was properly admitted, the district court erred by allowing the detective to opine that Dorsey and Bailey were the disguised robbers. These identification opinions were based on his assessment of still images from the robberies and pictures of Dorsey and Bailey that were in evidence before the jury. They did not meet “Rule 701’s requirement of helpfulness,” because the detective was not “more likely to identify correctly the [robbers] than [was] the jury.” United States v. LaPierre, 998 F.2d 1460, 1465 (9th Cir. 1993). Instead, the detective merely “spoon-fed his interpretations” of the evidence to the jury. Gadson, 763 F.3d at 1208 (quoting United States v. Freeman, 730 F.3d 590, 597 (6th Cir. 2013)). Thus, the identification opinions should have been excluded. 

A witness may, with sufficient background knowledge of a person, offer a lay opinion identifying that person in an image subject to the limits of Rule 701. Such an identification may be admissible opinion testimony when it evaluates evidence before the jury by contributing to that evidence the witness’s personal knowledge that the jury lacks.  Such testimony is “helpful . . . to determining a fact in issue,” Fed. R. Evid. 701(b), when the witness’s personal knowledge means that “the witness is more likely to identify correctly the person than is the jury.”

Whether a lay witness’s identification opinion is “helpful” to the jury under Rule 701 depends on the totality of the circumstances. United States v. Beck, 418 F.3d 1008, 1015 (9th Cir. 2005). We have previously recognized two situations in which an identification opinion has met “Rule 701’s requirement of helpfulness.” LaPierre, 998 F.2d at 1465. An identification opinion may be helpful, and therefore admissible, where “the witness has had substantial and sustained contact” with the defendant; or where “the defendant’s appearance in the photograph is different from his appearance before the jury and the witness is familiar with the defendant as he appears in the photograph.” Id. (collecting cases); see also Beck, 418 F.3d at 1015. Even so, we have explained that this kind of identification testimony is of “dubious value,” especially when provided by a law enforcement officer, because it can create unfair prejudice and discourage jurors from drawing their own conclusions. LaPierre, 998 F.2d at 1465; see also United States v. Butcher, 557 F.2d 666, 670 (9th Cir. 1977) (cautioning that “lay opinion identification by [law enforcement] is not to be encouraged”).

Detective Marsden’s lay opinions identifying Dorsey and Bailey as the disguised robbers were “unhelpful” and therefore inadmissible under Rule 701 because that testimony did not provide reason to believe that Detective Marsden was more likely to identify correctly the robbers than was the jury. See LaPierre, 998 F.2d at 1465. The detective did not identify the disguised robbers based on his “sustained contact” with Dorsey and Bailey, LaPierre, 998 F.2d at 1465, nor any other personal knowledge about their appearance that the jury lacked, Henderson, 68 F.3d at 326– 27. Detective Marsden served as the “lead investigator” of the crimes, and in that capacity testified to tracking down Dorsey through phone and vehicle records as well as unsuccessful attempts to follow his car. But these investigative steps focused on Dorsey’s identity on paper. They did not provide the detective with personal knowledge of Dorsey’s appearance, the basis of the detective’s identification opinion.

Given this overwhelming evidence, and the precautions the district court took to limit the effect of the improper identification opinions, we conclude that the Government met its burden to prove that “the error was more probably harmless than not.”

We affirm Dorsey’s conviction. The district court abused its discretion by allowing the prosecution to introduce lay identification opinions inadmissible under Rule 701. Lay identification opinions are “helpful” to the jury in “determining a fact in issue” only in limited circumstances. Fed. R. Evid. 701; see, e.g., LaPierre, 998 F.2d at 1465 (explaining the contexts in which such testimony has been held admissible). And we have explained that Rule 701 does not permit witnesses to spoon-feed their interpretations of the evidence to the jury. See Gadson, 763 F.3d at 1208. But here, that is exactly what the detective accomplished through his improper identification opinions. His opinion testimony identifying Dorsey and Bailey was not “helpful” within the meaning of Rule 701 and should have been excluded. We affirm only because the admissible evidence at trial and the district court’s instructions rendered the inadmissible testimony harmless. 

11/15/24: Case on propensity evidence under Federal Rule of Evidence 413

In United States v. Porter, --- F.4th ---, No. 22-10286 (9th Cir. 2024), the Court affirmed Charles Porter’s conviction for various sexual assault offenses in Yosemite National Park in a case in which the panel addressed whether Federal Rule of Evidence 413, which allows propensity evidence in federal criminal sexual assault cases, violates the Fifth Amendment Due Process Clause.

Rule 413 provides that “[i]n a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault.”

Under Federal Rule of Evidence 413, “[i]n a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault.” We are asked to decide whether this rule allowing propensity evidence in federal criminal sexual assault cases violates the Fifth Amendment’s Due Process Clause. Consistent with our precedent and that of other circuits, we hold that Rule 413 is constitutional.

We reaffirm Lemay and join the other circuits in holding that Rule 413 does not violate due process. When district courts retain discretion to exclude unduly prejudicial propensity evidence under Rule 403, Rule 413 is constitutional

11/13/24: Important Fourth Amendment decision

In United States v. Holmes, --- F.4th ---, No. 22-10266 (9th Cir. 2024), a divided Court reversed the district court’s denial of Aaron Holmes’s motion to suppress statements he made to law enforcement and images found on his cellphone, and remanded for further proceedings, in a case concerning a child-pornography investigation of two CyberTipline Reports that the National Center for Missing and Exploited Children forwarded to the Federal Bureau of Investigation.  

The majority's discussion of the good-faith and inevitable-discovery exceptions to the warrant requirement are very helpful.   

In this case, the Government concedes that Agent Steele’s viewing of the Facebook images was a search that triggered the warrant requirement. However, the Government argues on appeal, as it did before the district court, that Agent Steele did not violate the Fourth Amendment because two exceptions to the warrant requirement apply: officer good faith and inevitable discovery.

When law enforcement asserts that it acted in good faith by relying on then-existing law, it must point to “binding appellate precedent” that authorizes the challenged conduct at issue. Id. at 241. The good-faith exception does not require that the existing precedent involve a factual match to the present circumstances, but it does require that the precedent “specifically authorize[]” the conduct at issue.  As we explained in Lara, the good-faith exception applies “only when ‘binding appellate precedent’ expressly instruct[s] the officer what to do.” 815 F.3d at 613. Good faith is not established where existing precedent is unclear or makes the government’s position only “plausibly . . . permissible.” Cano, 934 F.3d at 1021 (quoting Lara, 815 F.3d at 614).

Because the binding appellate precedent that existed when Agent Steele conducted her investigation was contradictory and only plausibly supported her warrantless viewing of the images received from Facebook, we conclude that the good-faith exception does not apply. When it is ambiguous where an officer’s conduct falls on the continuum of what is lawful and what is not, our precedent requires that law enforcement comply with the warrant requirement.

The good-faith exception does not apply here because the existing precedent discussing the private-search doctrine did not specifically authorize Agent Steele to view the Facebook images without a warrant. Rather, the legal landscape only made plausible the contention that Agent Steele’s search fell within the scope of the private-search doctrine.

As far as we can tell, under our rule that binding appellate precedent must “specifically authorize” law enforcement’s conduct, we have not applied the good-faith exception where there are contrasting, potentially dispositive precedents. Instead, we have taken a narrow view of when precedent specifically authorizes an action.  

The Government also argues that the inevitable discovery exception applies. The inevitable-discovery exception excuses warrantless searches where the government proves “by a preponderance of the evidence” that unlawfully obtained evidence “would have been discovered inevitably [through] lawful means.”

Inevitability is the key. There can be “no speculative elements” in showing that law enforcement would have obtained the evidence lawfully absent its unlawful actions. Lang, 149 F.3d at 1047 (quoting Nix v. Williams, 467 U.S. 431, 444 n.5 (1984)). Rather, this inquiry must “focus[] on demonstrated historical facts capable of ready verification or impeachment.” Nix, 467 U.S. at 444 n.5. We have also explained that “the fact or likelihood that makes the discovery inevitable [must] arise from circumstances other than those disclosed by the illegal search itself.” United States v. Boatwright, 822 F.2d 862, 864 (9th Cir. 1987). 

Where the hypothetical next steps of an investigation are more discretionary and less procedural, inevitability may be lacking. See United States v. Ramirez-Sandoval, 872 F.2d 1392, 1400 (9th Cir. 1989). This is logical—the more leeway for decision-making, the harder it is to conclude, without speculation, that law enforcement inevitably would reach the same outcome.

The timing of an asserted hypothetical lawful discovery may inform inevitability. The case law demonstrates that shorter periods between the unlawful conduct and the asserted lawful discovery that would have occurred typically increases the likelihood of inevitability. 

The next step in the inevitability analysis is even more fatal for the Government. Even if we accept that Agent Rose inevitably would have obtained a search warrant for Holmes’s residence, the Government must also show that the evidence unlawfully obtained by Agent Steele inevitably would have been found by Agent Rose. The Government failed to make this showing because there are no historical facts to prove with any certainty that this would have happened.

The Government must prove that discovery of the evidence by lawful means was inevitable by a preponderance of the evidence. Nix, 467 U.S. at 444. This burden is not met when the Government relies on unsupported assumptions to fill in the gaps of an undeveloped record.

11/5/24: Case on prescribing outside the usual course of professional medical practice and without a legitimate medical purpose.

In United States v. Pham, --- F.4th ---, No. 23-1175 (9th Cir. 2024), the Court affirmed the district court’s denial of  Pham’s motion to withdraw his guilty plea to conspiracy to distribute controlled substances in violation of the Controlled Substances Act.

The defendant sought to withdraw his plea on the ground that it was not knowing and voluntary, citing Ruan v. United States, 597 U.S. 450 (2022).  In Ruan, the Supreme Court held that the government must prove not only that a defendant issued prescriptions that were not in fact authorized under the CSA but also that the defendant wrote the prescriptions with the knowledge or intent that he was doing so without authorization. Under Ruan, after a defendant produces evidence that he or she was authorized to dispense controlled substances, the Government must prove beyond a reasonable doubt that the defendant knew that he or she was acting in an unauthorized manner, or intended to do so.

The Court held that in both the plea agreement and colloquy with the district judge, Pham admitted to having the requisite knowledge of the elements that made his prescriptions not authorized. "In both the plea agreement and the colloquy, Pham admitted to knowingly and intentionally committing acts that were not authorized by the CSA. Pham has failed to show that his guilty plea was unknowing or involuntary. The district court did not err in denying his motion to withdraw the plea."

10/29/24: Important civil forfeiture case

In United States v. Nasri, --- F.4th ---, No. 22-55685 (9th Cir. 2024), the Court majority held that the district court’s exercise of in rem jurisdiction violated due process and vacated the district court’s order granting the government’s motion to strike Nasri’s claim of innocent ownership over the assets. 

This case arises out of the Phantom Secure prosecutions.  The government brought a civil forfeiture action under 28 USC 1355 to recover alleged ill-gotten gains in a foreign bank account from fugitive Younes Nasri. 

Nasri, a Canadian citizen residing in Dubai, challenged the court’s jurisdiction over the assets because allegedly neither he nor the assets had ties to the United States.

The Court held that, as a matter of basic due process, a court must have control or constructive control over the property in a forfeiture action in order to establish in rem jurisdiction over the property.  

We hold that due process requires a district court to establish control or constructive control over property in a forfeiture action to exercise in rem jurisdiction over the property. 

The Court further concluded that the district court's purported exercise of in rem jurisdiction over property located abroad, over which it apparently had no connection, possession, or control, was contrary to fundamental principles of due process.  The Court thus remanded for the district court to assess in the first instance whether the court has control or constructive control over the assets to satisfy due process when asserting in rem jurisdiction.

10/28/24: Case on U.S.S.G. § 2G2.2(b)(6), (b)(7)

In United States v. Sharma, --- F.4th ---, No. 23-616 (9th Cir. 2024), the Court affirmed the defendant's sentence over his facial due-process challenge to Congressionally directed Sentencing Guidelines enhancements for (1) using a computer to commit a child pornography offense, U.S.S.G. § 2G2.2(b)(6); and (2) the number of images involved in the offense, U.S.S.G. § 2G2.2(b)(7).

The Court held that the defendant did not establish that Congress acted irrationally when it directed the enhancements, nor did he establish that changed circumstances have so drastically altered the application of the enhancements to make them irrational today.

Although the computer-usage and image-number sentencing enhancements in child pornography offenses may be debatable on policy grounds, those debates are not the concern of a court conducting rational basis review. We ask only if a defendant has established that the enhancements lack a rational relationship to a legitimate government interest. We hold that Sharma fails to do so here.  

The Court, however, left open the possibility of a future substantive reasonableness challenge based on the application of these enhancements. 

10/25/24: Case on USSG 2M5.1 related to evasion of export controls.

In United States v. Shih, --- F.4th ---, No. 23-3718 (9th Cir. 2024), the Court affirmed a sentence in a case which the district court applied a base offense level of 26 pursuant to U.S.S.G. § 2M5.1(a)(1) to a count on which a jury found Yi-Chi Shih guilty of violating the International Emergency Economic Powers Act (IEEPA).

Shih violated the IEEPA by exporting to China, without a license, monolithic microwave integrated circuits, devices that amplify microwave signals. The offense arose out of Shih’s collaboration with engineers in China in conducting research for a Chinese enterprise that develops military weapons. 

The base offense level of 26 prescribed in § 2M5.1(a)(1) applies if national security controls were evaded.

The Court rejected Shih's argument that the relevant export controls were foreign policy controls, not national security control. 

10/22/24: Split decision on U.S.S.G. § 2X1.1(b)(2)

In United States v. Lee, --- F.4th ---, No. 23-1495 (9th Cir. 2024), the majority affirmed the sentence imposed on Hoang Ai Le, whom a jury convicted of Hobbs Act conspiracy and a related firearm offense, in a case in which Le and a team of co-conspirators decided to steal computer chips from Diamond Flower Electric Instruments (“DFI”).

The issue on appeal was whether Le should have received a reduction under U.S.S.G. § 2X1.1(b)(2).  The majority said no. 

The provision reads: 

If a conspiracy, decrease by 3 levels, unless [1] the defendant or a co-conspirator completed all the acts the conspirators believed necessary on their part for the successful completion of the substantive offense or [2] the circumstances demonstrate that the conspirators were about to complete all such acts but for apprehension or interruption by some similar event beyond their control.

Here is the majority's reasoning: 

The district court found that the co-conspirators had “entered the victim’s residence, tied up the victim and his parents, and tortured and interrogated the victim in furtherance of the planned DFI robbery.” Because the conspirators had gone to such lengths, and because Le and his team were waiting at the nearby motel and ready to head to DFI with the codes, the conspirators were “about to complete” the Hobbs Act robbery under § 2X1.1(b)(2), which meant the three-level reduction should not apply.

While the Guidelines supply no definition of the point at which conspirators are “about to complete” an offense, the district court’s conclusion cannot be described as clearly erroneous. The home invasion, torture, and interrogation of the person who supposedly knew the DFI alarm codes were the most significant tasks that Le and his co-conspirators needed to complete. Through these vicious actions, the conspirators completed that aspect of the Hobbs Act violation requiring robbery of a person. See 18 U.S.C. § 1951(a), (b)(1). The remaining steps consisted of driving a short distance to the DFI warehouse, punching in the alarm codes, and removing the computer chips. Had the conspirators successfully secured the codes to the building, the remaining steps would have been straightforward: entering a nearby building to which they had the alarm codes.

Something else always could have gone wrong along the way. But that possibility does not detract from what the conspirators had already done. See United States v. Medina, 74 F.3d 413, 418 (2d Cir. 1996) (per curiam) (explaining that § 2X1.1(b)(2) differentiates punishment “based on the conduct of the defendant, not on the probability that a conspiracy would have achieved success”). Someone who is “about to” do something is going to do it relatively soon. See, e.g., About, Merriam-Webster Dictionary 2 (2019); About, New Oxford American Dictionary 5 (2010). But whether someone is “about to” do something depends on the facts and context. It was not clearly erroneous for the district court to conclude that, when the conspirators had selected the target business, brutalized the person they suspected of being the owner, and stationed a ready team near the DFI warehouse, the conspirators were about to complete the Hobbs Act robbery with the codes once obtained.

Judge Berzon's dissent explains why the majority got it wrong.  

10/11/24: An “oily bilge water” case

In United States v. Korotkiy, --- F.4th ---, No. 23-2443 (9th Cir. 2024), a split decision, the majority affirmed the district court’s order denying Denys Korotkiy’s motion to dismiss a count charging him under 33 U.S.C. § 1908 with violating 33 C.F.R. § 151.25 (2023), a regulation that requires shipmasters to, among other things, maintain a record of certain bilge-water operations while in U.S. waters.

The opinion is long. The basic question is whether "maintain" means maintain accurately or just maintain as in keep in good condition.   The majority went with the first definition.  Here is the introduction and conclusion: 

Under international and federal law, it is unlawful to dump the polluted water that collects in a boat’s bottom— otherwise known as “oily bilge water”—while at sea. Those same laws also require ships to log their bilge-water operations in an Oil Record Book. Defendant and Chief Engineer Denys Korotkiy, along with the crew aboard the foreign-flagged ship MV Donald, flouted those laws by dumping oily bilge water on the high seas and covering it up with misleading entries in the ship’s Oil Record Book. After making port in the United States and presenting the Oil Record Book to U.S. officials, Korotkiy faced prosecution under federal law, including 33 C.F.R. § 151.25 (2023). That regulation requires shipmasters to, among other things, “maintain” a record of certain bilge-water operations in an Oil Record Book while in U.S. waters. And the MV Donald’s record was—to put it simply—inaccurate. Korotkiy moved to dismiss his indictment, arguing that “maintain” does not mean “maintain accurately” and that § 151.25 neither applied to him nor proscribed his conduct. 

The district court was unpersuaded. It applied out-of-circuit case law to find that Korotkiy could be charged for causing the failure to maintain an accurate record of bilgewater operations in an Oil Record Book at port under § 151.25. On appeal, Korotkiy urges us to reverse the district court’s order because: (1) § 151.25 does not require crewmembers to maintain substantively “accurate” records in Oil Record Books; (2) neither Congress nor the international community intended for such prosecutions to occur; and (3) only ship masters, and not chief engineers, should be charged for violations of § 151.25. Although this is a matter of first impression in the Ninth Circuit, we join the First, Second, Third, and Fifth Circuits. We hold that the regulation’s plain language proscribes Korotkiy’s conduct and affirm the district court’s decision.

In sum, the Ionia, Jho, Vastardis, and Hornof courts have all considered and rejected arguments resembling Korotkiy’s, uniformly holding that 33 C.F.R. § 151.25 imposes a duty upon foreign-flagged vessels to maintain accurate (or at least not knowingly inaccurate) Oil Record Books while in U.S. territorial waters. Korotkiy does not offer a “compelling reason” to chart a separate course and “create a circuit split.” Given § 151.25’s plain language and the law’s purpose, we decline his invitation to do so and affirm the district court’s order.

10/8/24: Interesting categorical analysis case in the VICAR murder context

In United States v. Elmore, --- F.4th ---, No. 22-16539 (9th Cir. 2024), the Court reversed the district court’s denial of Reginald Elmore’s 28 U.S.C. § 2255 motion challenging the validity of his conviction for use or possession of a firearm during murder in aid of racketeering in violation of 18 U.S.C. § 924(j)(1), and remanded for further proceedings.

Unless you are a categorical-analysis expert, this decision can be tricky.  Here is some of the key language:

Reginald Elmore challenges the validity of his 2019 conviction for use or possession of a firearm during murder in aid of racketeering in violation of 18 U.S.C. § 924(j)(1). To be valid, Elmore’s § 924(j)(1) conviction requires a predicate “crime of violence,” meaning an offense that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 924(c)(3)(A). The predicate offense for Elmore’s § 924(j)(1) conviction—VICAR murder in violation of 18 U.S.C. § 1959(a)(1)1—itself requires a predicate violation of state or federal law. 

We hold that the modified categorical approach must be applied to determine the elements of Elmore’s charged VICAR offense. We conclude that Elmore was charged with VICAR murder in aid of racketeering predicated on murder under California law. Because we are persuaded that determining whether this charged offense “has as an element the . . . use of physical force” against another person requires considering whether California murder necessarily involves the requisite force, we reverse and remand to the district court for further proceedings. 

Elmore’s 924(j)(1) conviction requires a valid predicate “crime of violence.” Section 924(c)(3) defines a crime of violence as a felony offense that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another,” or one “that[,] by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” 18 U.S.C. § 924(c)(3)(A)–(B). When Elmore entered his guilty plea, both the first clause of this definition—the “elements” or “force” clause—and the second—the “residual” clause—were in effect. Shortly after his guilty plea, the Supreme Court invalidated the residual clause of § 924(c)(3) for vagueness. Davis, 588 U.S. at 470. Thus, to constitute a predicate crime of violence sufficient to support Elmore’s § 924(j)(1) conviction, the dismissed VICAR charges must satisfy § 924(c)(3)(A), the elements clause of § 924(c)(3).

In Elmore’s case, we must determine whether the elements of the predicate charged VICAR offenses necessarily involve the “use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 924(c)(3)(A). “Unless the least culpable act criminalized [by the statute] entails that force, the statute is not a categorical match with the elements clause, and it does not qualify as a crime of violence.” Begay, 33 F.4th at 1091.

We [] agree with our sister circuits that “the modified categorical approach applies to substantive VICAR offenses, and that ‘a substantive VICAR offense is a crime of violence [under § 924(c)(3)(A)] when predicated on at least one violent crime in aid of racketeering acts.’”

Applying the modified categorical approach, we conclude that Elmore was charged with VICAR murder in aid of racketeering under 18 U.S.C. § 1959(a)(1) predicated on murder in violation of California law.

To find a principal guilty of this substantive crime, a jury would have to find that the defendant committed California murder for the purpose of promoting their position within, or receiving something of value from, a qualifying racketeering enterprise.

We have never addressed how courts should analyze VICAR offenses for this purpose. Elmore argues that, when applying the modified categorical approach to determine whether the charged VICAR offense satisfies the elements clause, courts should look through to the elements of the charged VICAR murder predicate (here, California murder). The government argues that every charged VICAR murder necessarily has generic federal murder as an element, so courts need not look to the charged predicate at all. In the context of this case, Elmore has the better argument. 

Although we have recognized that, in limited circumstances, the federal generic definition of the offense may be substituted for the state-law definition, see Adkins, 883 F.3d at 1210–11, we have never addressed whether generic murder is an independent element of VICAR murder, such that it should be charged or instructed. And we need not consider that question today. We hold only that where, as here, application of the modified categorical approach reveals that the predicate state-law violation supplied the definition of murder for the VICAR offense, courts should look through to the elements of that predicate violation to determine whether the VICAR offense, as charged or convicted, constitutes a crime of violence under § 924(c)(3)(A).  

Where, as here, there is no evidence that a generic offense was an element of the charged VICAR offense, courts should look through to elements of the charged state-law predicate violation to determine whether the VICAR offense satisfies § 924(c)(3)(A), the elements clause of § 924(c)(3).

Here, such analysis requires determining whether California murder “has as an element the use, attempted use, or threatened use of physical force against the person or property of another,” § 924(c)(3)(A), such that Elmore’s charged VICAR murder offenses are a valid predicate for his § 924(j)(1) conviction.

Because the district court did not consider whether California murder is a crime of violence and declined to address the government’s procedural arguments, we reverse and remand for further proceedings consistent with this opinion.

10/1/24: Case on Guidelines enhancement for hate crime motivation under U.S.S.G. § 3A1.1.

In United States v. Patterson, --- F.4th ---, No. 22-50287 (9th Cir. 2024), the district court imposed a sentencing enhancement under U.S.S.G. § 3A1.1 for a hate crime motivation.  On appeal, the Court vacated and remanded for resentencing.

The question we address is whether the sentencing enhancement for a hate crime motivation, found in U.S. Sentencing Guidelines Manual (USSG) § 3A1.1(a), requires a finding that the defendant was motivated by hate or animus. We conclude that such a finding is required. Because the district court imposed the enhancement without finding beyond a reasonable doubt that the defendant was motivated by hate or animus, we vacate the sentence and remand for resentencing.

The title, history, purpose, and ordinary understanding of the term “hate crime” all indicate that application of the enhancement requires the trier of fact to find beyond a reasonable doubt that the defendant acted with animus. We vacate the sentence and remand for resentencing.

9/30/24: Lengthy health-care fraud decision

In United States v. Solakyan, --- F.4th ---, No. 22-50023 (9th Cir. 2024), the Court (1) affirmed Sam Sarkis Solakyan’s conviction for (a) conspiracy to commit honest-services mail fraud and health-care fraud and (b) honest-services mail fraud and aiding and abetting; and (2) vacated the district court’s restitution order.  Solakyan was the owner and operator of multiple medical-imaging companies that routed unsuspecting patients from complicit physicians and medical schedulers to his companies for superfluous magnetic resonance imagery (“MRI”) scans and other medical services.

The Court considered a host of challenges to the convictions and restitution order.  Here are some of the key determinations.  

We now hold that under Skilling and Milovanovic, honest-services mail fraud, as proscribed by 18 U.S.C. §§ 1341 and 1346, encompasses bribery and kickback schemes that deprive patients of their intangible right to the honest services of their physicians.

We must [] determine whether § 1346 requires the government to prove in a private-sector case that the victims of the fraudulent scheme suffered some kind of tangible harm as an element of the offense

We [] hold that actual or intended tangible harm is not a necessary element for prosecution under §§ 1341 and 1346. Rather, the same elements required to prove honest-services fraud in a public-sector case, including fraudulent intent and materiality, apply in a private-sector case as well

This brings us to Solakyan’s claim that the court erred in ordering a restitution amount that is distinct from the loss amount calculated for purposes of sentencing. The district court did not err. As we recently stated, “[t]here is no categorical rule that restitution must be equal to or less than the amount of loss found when applying Sentencing Guidelines § 2B1.1(b)(1) or similar loss-based Guidelines sections.” “A discrepancy, standing alone, does not establish legal error.”  Accordingly, a court’s leniency on the loss calculation for sentencing purposes does not hamstring its discretion to impose a larger restitution order in an amount fully borne by a defendant’s victims. 

[T]he district court never explained why it did not deduct from the restitution order the value of medically necessary MRIs. This Court’s actual loss rule requires deducting from the total restitution amount the value of services for which insurers would have paid, absent Solakyan’s fraud. Such deductions include any medically necessary and otherwise lawful MRIs had the patients been insured—an analysis that the Government made and the court accepted for determining the “conservative” loss amount under the Sentencing Guidelines. We hold that the district court’s failure to make specific findings supporting its restitution amount, in particular as to offsets, was an abuse of discretion.

We affirm Solakyan’s conviction but vacate the restitution order and remand to the district court to determine whether the total loss amount should be reduced, at least in part, by the cost of reimbursement for medically necessary MRIs the insurers would have incurred had Solakyan acted lawfully. 

9/12/24: A couple of sentencing decisions

First, in United States v. Brewster, --- F.4th ---, No. 23-329 (9th Cir. 2024), the Court affirmed a sentence imposed following the defendant’s guilty plea to one count of being a felon in possession of a firearm.

The Court rejected a variety of sentencing claims.  The only thing that jumped out at me was the Court's conclusion that data from the Sentencing Commission’s Judiciary Sentencing INformation (JSIN) online tool was sufficiently reliable to consider at sentencing.  I don't recall seeing this in a prior published opinion (but I certainly could be wrong about that).  

In sum, the district court did not err, much less clearly err, in finding that the JSIN data was reliable. Thus, perforce, it bore some minimal indicia of reliability. The JSIN data came from a reliable source designed specifically for judges to use during sentencing to fulfill their obligations under § 3553(a)(6). The JSIN data was also corroborated by other unchallenged evidence. Finally, even though he could have, Brewster offered no evidence to contradict or materially undermine JSIN’s reported average and median sentences. 

Next, in United States v. Avendano-Soto, --- F.4th ---, No. 23-281 (9th Cir. 2024), the Court affirmed the defendant’s conviction and sentence following his guilty plea to assaulting a federal officer resulting in bodily injury.  Again, not much new in this case, but the Court's discussion of the Montoya pronouncement requirement is somewhat noteworthy.  

In the District of Arizona, General Order 17-18 "lists thirteen 'standard' conditions, all based on the thirteen 'standard' conditions recommended for supervised release in § 5D1.3 of the Guidelines."  The Court noted that: 

Under Montoya, “a district court must orally pronounce all discretionary conditions of supervised release in the presence of the defendant.” “[T]his pronouncement requirement is satisfied if the defendant is informed of the proposed discretionary conditions before the sentencing hearing and the district court orally incorporates by reference some or all of those conditions, which gives the defendant an opportunity to object.” 

Because Avendano reviewed and understood the PSR, and the PSR incorporated the conditions in General Order 17-18, Avendano had sufficient notice that he would be subject to the conditions in General Order 17-18.4 Thus, the district court satisfied Montoya’s pronouncement requirement.

9/11/24: Lengthy bribery decision

In United States v. Shen Zhen New World I, LLC, --- F.4th ---, No. 23-972 (9th Cir. 2024), the Court affirmed a real estate development company’s convictions on three counts of honest services mail and wire fraud, in violation of 18 U.S.C. §§ 1341, 1343, 1346; one count of federal-program bribery, in violation of 18 U.S.C. § 666(a)(2); and four counts of interstate and foreign travel in aid of racketeering, in violation of the Travel Act, 18 U.S.C. § 1952(a)(3).

This case revolves around a pay-to-play scheme between a real estate developer and a former LA Councilmember.  The developer remains a fugitive in China, so the case went to trial solely against his company. 

First, the Court rejected the defendant's sufficiency challenge.  It held that, when based on bribery, a conviction for honest-services fraud requires proof of the bribe-giver’s intent to enter a quid pro quo. But the bribery offense does not require an agreement to enter a quid pro quo with the public official when the defendant is the bribe-giver.  A defendant offering a benefit to a public official with the intent to influence any official act in exchange suffices.

Second, the Court rejected the defendant's challenge to the district court's refusal to provide certain jury instructions on quid pro quo and specified official acts. 

Third, the Court affirmed the defendant's Travel Act convictions. The defendant argued that California’s bribery statutes are too broad to serve as federal bribery predicates under the “categorical approach” required under the Travel Act. The Court determined that, as construed by the California courts, bribery under California law is broader than the Travel Act’s generic definition of bribery. But the mismatch between the generic definition of bribery and California bribery statutes do not require vacating Shen Zhen’s convictions because the jury convicted Shen Zhen based on elements that conform to the generic definition of bribery under the Travel Act.  

[Of note, there is something about the Court's application of the categorical approach on this issue that seems off to me, but I need to review the case again to figure out what.  If anyone comes up with the answer, please let me know]. 

Fourth, the Court held that the district court properly admitted evidence of the councilmember's general-pay-to-play scheme.

Finally, the Court held that the district court wrongly excluded as inadmissible hearsay the developer's alleged statements about his state of mind regarding his gift-giving. 

As the parties acknowledge, defense counsel sought to elicit Huang’s out-of-court response to Zheng that Huang thought he and Huizar “were just having fun,” “not doing anything wrong,” and that he “had not asked . . . Huizar for anything.” Had Zheng been able to offer this testimony, it would have been probative not as to the truth of these statements but whether Huang felt culpable in his interactions with Huizar. Although Zheng could not testify as to the factual basis for Huang’s mindset, at least some of the excluded statements were probative of Huang’s “then-existing state of mind” and “mental feeling” about his actions—admissible as an exception to the rule against hearsay.

The Court concluded, however, that the error was harmless.

9/4/24: Helpful decision holding that Cal. PC 245(a)(1) does not qualify as a crime of violence

In United States v. Gomez, --- F.4th ---, No. 23-435 (9th Cir. 2024), the Court vacated a sentence and remanded for resentencing in a case in which the district court applied a career offender enhancement under U.S.S.G. § 4B1.1 on the ground that Gomez’s prior conviction for assault with a deadly weapon under California Penal Code § 245(a)(1) was a “crime of violence.”  The Court held this was error.

Jesus Ramiro Gomez was sentenced to 188 months’ incarceration for one count of distribution of methamphetamine. At sentencing, the district court applied a career offender enhancement, which doubled the recommended range for Gomez’s sentence. To apply the enhancement, the district court found that Gomez’s prior conviction for assault with a deadly weapon under California Penal Code § 245(a)(1) was a crime of violence. We have previously held that California Penal Code § 245(a)(1) constitutes a crime of violence, but our decisions are clearly irreconcilable with the Supreme Court’s ruling in Borden v. United States, 593 U.S. 420 (2021). In light of Borden, we hold that convictions under California Penal Code § 245(a)(1) do not qualify as crimes of violence, and the district court incorrectly applied the career offender enhancement in this case. 

Because we conclude California’s assault statute sweeps in reckless uses of force, as defined in Borden, a conviction under § 245(a)(1) is not a categorical match with the elements clause and does not constitute a crime of violence.

In sum, Borden establishes a bright line rule: if a statute criminalizes uses of force committed only with a conscious disregard of a substantial risk to another person, it is not a crime of violence. Our prior cases do not apply that test, and thus improperly categorize § 245(a)(1) as a crime of violence in violation of Borden. 8 They are not merely in tension with Borden; they are irreconcilable. 

[A]s explained above, § 245(a)(1) does not limit its scope to uses of force with a mens rea greater than recklessness, let alone extreme recklessness. It thus does not constitute aggravated assault under the enumerated offenses clause.  

Beyond these important holdings, the Court also keeps alive its helpful rule that, "[w]hen an appeal presents a pure question of law and the opposing party is not prejudiced by the defendant’s failure to object, we may apply de novo review in our discretion."  The Court explained:  "Under our established precedent, because we do not need a factual record to resolve the purely legal question before us, we exercise our discretion to review the challenge de novo."

9/4/24: A published update to 3/18/24's Interesting Second Amendment decision

Before I get to today's interesting published order -- and the Circuit infighting it reveals -- I wanted to address United States v. Ovsepian, --- F.4th ---, No. 21-55515 (9th Cir. 2024). 

In the habeas appeal, Ovsepian argued that he was factually innocent of aggravated identity theft, a crime for which he was prosecuted and convicted at trial."  The Court agreed:  "In light of Dubin, we excuse Ovsepian’s procedural default and conclude that the jury instructions used in his trial were erroneous because they did not convey that his “possession” of another’s identifying information must have been at the crux of the healthcare fraud to sustain a conviction of aggravated identity theft and, because no jury so instructed could find Ovsepian guilty of that offense on the record before us, we vacate Ovsepian’s conviction for aggravated identity theft."

The opinion has a lot of helpful language for 1028A cases.  It also has a thorough discussion of the actual innocence exception to procedural default. 

Today, in United States v. Perez-Garcia, --- F.4th ---, No. 22-50314 (9th Cir. 2024), the Court issued a published order denying rehearing en banc in this Second Amendment related case.  

My original summary of the panel decision is below.  Today's order is 66 pages because of the concurrence and dissent.  The tension is clear.  For your reading pleasure, here is a bit of the concurrence:

A single judge of our court dissents from the order denying the petition for rehearing en banc. I join my colleagues who have voiced concern about these so-called “dissentals,” which often present a “distorted presentation of the issues in the case, creating the impression of rampant error in the original panel opinion although a majority— often a decisive majority—of the active members of the court . . . perceived no error.”

The dissent in this case, though, is particularly curious. In a case where—everyone agrees—we lack jurisdiction to rehear the merits of the appeals, one judge has taken it upon himself to write a 61-page advisory opinion. Only about 5 of those 61 pages purport to address the relevant question at hand—what exceptional circumstance, if any, renders en banc review appropriate? The rest details Judge VanDyke’s views of the Second Amendment and his disagreements with the three-judge panel decision. As we have long recognized, critiques of this nature are irrelevant because “[w]e do not take cases en banc merely because of disagreement with a panel’s decision, or rather a piece of a decision.” 

I concur in the denial of rehearing en banc, and I write separately to make two brief points. First, this appeal is clearly unworthy of en banc review. Second, the Supreme Court’s recent decision in United States v. Rahimi, 144 S. Ct. 1889 (2024), vindicates the analysis in Perez-Garcia.  

In United States v. Perez-Garcia, --- F.4th ---, No. 22-50314 (9th Cir. 2024), the Court denied Appellants’ motion to dismiss the appeal as moot, and held that the Bail Reform Act of 1984’s firearm condition on pretrial release is constitutional as applied to the appellants. 

This is a case out of the SDCA. 

After their arrests in unrelated cases, two magistrate judges released Fencl and Perez-Garcia pending their trials but subjected them to a condition of pretrial release that temporarily barred them from possessing firearms pending trial.  The magistrate judges concluded that the firearm condition was the least restrictive way to assure the safety of the community and the defendants’ appearances in court. Two district court judges agreed.

In consolidated appeals, Appellants Fencl and Perez-Garcia contended that the pretrial firearm condition violates their Second Amendment rights under New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022). 

The Ninth Circuit affirmed in a brief dispositive order stating: “We affirm the district court’s orders. An opinion explaining this disposition will follow.”

Fencl and Perez-Garcia moved to dismiss their appeals as moot after the Court ruled against them but before the opinion was released. 

Today, the opinion was filed.  As noted, the Court declined to dismiss the appeals.  

Next, the Court held that "the Bail Reform Act’s firearm condition on pretrial release is constitutional as applied to Fencl and Perez-Garcia. Our holding is consistent with how we have long balanced the constitutional rights of pretrial detainees and releasees with legitimate public safety and logistical considerations. And our holding is consistent with our nation’s long history of temporarily disarming criminal defendants facing serious charges and those deemed dangerous or unwilling to follow the law." 

8/22/24: large capacity magazine under U.S.S.G. § 2K2.1(a)(4)(B)

In United States v. Trumbull, --- F.4th ---, No. 23-912 (9th Cir. 2024), the Court affirmed a sentence imposed on Derek Steven Trumbull following his guilty plea to being a felon in possession of a firearm. 

Trumbull challenged the district court’s calculation of his Guidelines range—specifically, the increase of his offense level under U.S.S.G. § 2K2.1(a)(4)(B) on the ground that the offense involved a semiautomatic firearm that is capable of accepting a large capacity magazine. 

Section 2K2.1 does not define a “semiautomatic firearm that is capable of accepting a large capacity magazine."  Instead, the definition is found in the an application note and turns on whether the magazine can accept more than 15 rounds. 

Trumbull attacked Application Note 2 on its face as an invalid interpretation of § 2K2.1 under Kisor v. Wilkie, 588 U.S. 558 (2019).

The Ninth Circuit rejected his argument, concluding that Application Note 2’s definition of “large capacity magazine” warrants deference under Kisor because: (1) the term “large capacity magazine” is ambiguous within the meaning of Kisor because of the relative nature of the word large; (2) Application Note 2 is a reasonable interpretation of “large capacity magazine”; and (3) Application Note 2 meets the three “especially important markers for identifying” when deference is appropriate in that (a) Application Note 2 is the Sentencing Commission’s official position, (b) the interpretation implicates the agency’s substantive expertise, and (c) Application Note 2 was an exercise of the Commission’s fair and considered judgment.