5/9/24: Major felon-in-possession decision

In United States v. Duarte, --- F.4th ---, No. 22-50048 (9th Cir. 2024), a divided panel vacated on Second Amendment grounds Steven Duarte’s conviction for violating 18 U.S.C. § 922(g)(1), which makes it a crime for any person to possess a firearm if he has been convicted of an offense punishable by imprisonment for a term exceeding one year. 

Here is the majority's intro:

18 U.S.C. § 922(g)(1) makes it a crime for any person to possess a firearm if he has been convicted of an offense “punishable by imprisonment for a term exceeding one year.” Steven Duarte, who has five prior non-violent state criminal convictions—all punishable for more than a year— was charged and convicted under § 922(g)(1) after police saw him toss a handgun out of the window of a moving car. Duarte now challenges the constitutionality of his conviction. He argues that, under the Supreme Court’s recent decision in New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), § 922(g)(1) violates the Second Amendment as applied to him, a non-violent offender who has served his time in prison and reentered society. We agree. 

We reject the Government’s position that our pre-Bruen decision in United States v. Vongxay, 594 F.3d 1111 (9th Cir. 2010), forecloses Duarte’s Second Amendment challenge. Vongxay is clearly irreconcilable with Bruen and therefore no longer controls because Vongxay held that § 922(g)(1) comported with the Second Amendment without applying the mode of analysis that Bruen later established and now requires courts to perform. Bruen instructs us to assess all Second Amendment challenges through the dual lenses of text and history. If the Second Amendment’s plain text protects the person, his arm, and his proposed course of conduct, it then becomes the Government’s burden to prove that the challenged law is consistent with this Nation’s historical tradition of firearm regulation. Vongxay did not apply these two analytical steps because Bruen had not yet established them. We must therefore reconsider § 922(g)(1)’s constitutionality, this time applying Bruen’s two-step, text-and-history framework. 

At step one of Bruen, we easily conclude that Duarte’s weapon, a handgun, is an “arm” within the meaning of the Second Amendment’s text and that Duarte’s “proposed course of conduct—carrying [a] handgun[] publicly for selfdefense”— falls within the Second Amendment’s plain language, two points the Government never disputes. Bruen, 597 U.S. at 32. The Government argues only that “the people” in the Second Amendment excludes felons like Duarte because they are not members of the “virtuous” citizenry. We do not share that view. Bruen and Heller foreclose that argument because both recognized the “strong presumption” that the text of the Second Amendment confers an individual right to keep and bear arms that belongs to “all Americans,” not an “unspecified subset.” Bruen, 597 U.S. at 70 (quoting District of Columbia v. Heller, 554 U.S. 570, 581 (2008)). Our own analysis of the Second Amendment’s publicly understood meaning also confirms that the right to keep and bear arms was every citizen’s fundamental right. Because Duarte is an American citizen, he is “part of ‘the people’ whom the Second Amendment protects.” Bruen, 597 U.S. at 32. 

At Bruen’s second step, we conclude that the Government has failed to prove that § 922(g)(1)’s categorical prohibition, as applied to Duarte, “is part of the historical tradition that delimits the outer bounds of the” Second Amendment right. Bruen, 597 U.S. at 19. The Government put forward no “well-established and representative historical analogue” that “impose[d] a comparable burden on the right of armed self-defense” that was “comparably justified” as compared to § 922(g)(1)’s sweeping, no-exception, lifelong ban. Id. at 29, 30. We therefore vacate Duarte’s conviction and reverse the district court’s judgment entering the same.

5/2/24: Two en banc decisions

First, in United States v. Lucas, --- F.4th ---, No. 22-50064 (9th Cir. 2024), the en banc Court held that clear and convincing evidence is not required for factual findings under the advisory Sentencing Guidelines, even when potentially large enhancements are at stake; fact-finding by a preponderance of the evidence is sufficient to satisfy due process at sentencing.

The writing has been on the wall for this one.  It seemed clear the Ninth Circuit would overrule its prior precedent holding that trial courts must apply a clear-and-convincing evidence standard  “when a sentencing factor has an extremely disproportionate effect on the sentence relative to the conviction.”  With this en banc decision, the Ninth joins the other Circuits in holding that the preponderance standard applies to all sentencing factors. 

Next, in United States v. Anderson, --- F.4th ---, No. 20-50345 (9th Cir. 2024), the en banc Court reversed the district court’s denial of a motion to suppress a firearm found during a warrantless search of the defendant’s truck in a case that presented the question whether an officer’s failure to comply with governing administrative procedures is relevant in assessing the officer’s motivation for conducting an inventory search.  Here are some key parts of the majority opinion. 

Law enforcement may conduct warrantless inventory searches of impounded vehicles. But the Supreme Court has instructed that inventory searches are reasonable under the Fourth Amendment only if they are motivated by administrative purposes, and not solely by investigatory purposes. The question here is whether an officer’s failure to comply with governing administrative procedures is relevant in assessing the officer’s motivation for conducting an inventory search. The answer is yes. An officer’s compliance (or as is the case here, non-compliance) with department policy governing inventory searches is part of the totality of circumstances properly considered in determining whether a search satisfies the requirements of the inventory-search exception to the warrant requirement. And based on the circumstances presented here, we conclude that the deputies who searched Defendant Jonathan Anderson’s truck acted solely for investigatory reasons. Therefore, we reverse the district court’s denial of his motion to suppress.

The Fourth Amendment, not policies governing administrative searches, defines the constitutional right against unreasonable searches and seizures. But given the nature of the inventory-search exception to the warrant requirement, law enforcement’s compliance with the governing inventory procedure or policy can be material. To satisfy the Fourth Amendment, an inventory search must serve administrative, not solely investigatory, goals. Bertine, 479 U.S. at 371–72. And whether law enforcement officers have complied with their governing inventory procedure can inform their motivations for conducting an inventory search. See Opperman, 428 U.S. at 376 (“[I]n following standard police procedures, . . . the conduct of the police was not ‘unreasonable’ under the Fourth Amendment.”); Garay, 938 F.3d at 1111 (“If [an inventory search is] done according to standardized criteria and not in ‘bad faith or for the sole purpose of investigation,’ police inventory procedures satisfy the Fourth Amendment.” (quoting Bertine, 479 U.S. at 372)). Accordingly, deviation from the governing inventory policy can evidence bad faith or that officers were acting solely for investigative purposes. 

The dissent laments that Anderson “goes free” as a result of our decision. Dissent at 38. But, of course, one does not lose his Fourth Amendment rights upon being convicted of a felony—or even multiple felonies. And we do not enforce the Fourth Amendment based on whether an underlying conviction will be invalidated. See Riley, 573 U.S. at 401 (“We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime. . . . Privacy comes at a cost.”). 

4/19/24: forfeiture by wrongdoing rule

In United States v. Blackshire, --- F.4th ---, No. 21-10230 (9th Cir. 2024), the Court affirmed Lawrence Blackshire’s convictions and sentence for various offenses arising out of an assault on his girlfriend, C.S.

Lawrence Blackshire was convicted of various offenses arising out of an assault on his girlfriend, C.S. After the government could not locate C.S. to testify at trial, the district court admitted statements she gave to police officers and a nurse. The central issue on appeal is whether the district court erred in finding that Blackshire forfeited his right to confront C.S. by causing her unavailability. We hold that it did not, and—finding Blackshire’s remaining arguments unpersuasive—affirm his convictions. 

The “Confrontation Clause” bars testimonial hearsay by an unavailable declarant2 unless “the defendant has had a prior opportunity to cross-examine” the declarant. Crawford v. Washington, 541 U.S. 36, 59 (2004). However, “[a] defendant may forfeit confrontation rights and render hearsay rules inapplicable if the defendant is responsible for the witness’s unavailability.” United States v. Johnson, 767 F.3d 815, 820 (9th Cir. 2014). This “forfeiture by wrongdoing” rule “permit[s] the introduction of statements of a witness who was ‘detained’ or ‘kept away’ by the ‘means or procurement’ of the defendant.”

Federal Rule of Evidence 804(b)(6) “codifies” the forfeiture by wrongdoing doctrine. Davis v. Washington, 547 U.S. 813, 833 (2006). The Rule allows introduction of hearsay when a party “wrongfully caused—or acquiesced in wrongfully causing—the declarant’s unavailability as a witness, and did so intending that result.”

“Supreme Court authority . . . clearly establishes that the forfeiture-by-wrongdoing doctrine applies where there has been affirmative action on the part of the defendant that produces the desired result, non-appearance by a prospective witness against him in a criminal case.” Carlson, 791 F.3d at 1010. To establish forfeiture by wrongdoing, the government must demonstrate that the defendant intentionally “engaged in conduct designed to prevent a witness from testifying.” Giles, 554 U.S. at 361. “Causing the declarant’s unavailability with the intent of doing so is critical to the doctrine of forfeiture by wrongdoing.”

Wrongful action is a separate requirement from causation and intent in the Rule, as well as in the traditional hearsay exception. But the government need not show that Blackshire engaged in criminal wrongdoing that caused C.S.’s unavailability. See Fed. R. Evid. 804(b)(6) Advisory Committee Note to Amendment (1997). Instead, the doctrine acknowledges the principle that, “[w]hile defendants have no duty to assist the State in proving their guilt, they do have the duty to refrain from acting in ways that destroy the integrity of the criminal trial system.” 

With respect to whether Blackshire caused C.S.’s absence, there is sufficient evidence to support the district court’s finding. In one recorded conversation, Blackshire told someone that law enforcement would not be able to find “victims” because “we already discussed the whole fucking not showing up to court thing.” And, he was recorded asking two other women to tell C.S. not to appear in court. He took “affirmative action,” Carlson, 791 F.3d at 1010, “designed” to prevent C.S. from testifying, Giles, 554 U.S. at 359.

Blackshire’s recorded statements need not be understood, as he suggests, simply as efforts at “making peace,” or informing C.S. of her right not to testify. Instead, they can reasonably be interpreted as evidencing efforts to “coerc[e], undu[ly] influence, or pressure” C.S. into not showing up in court.

The Court also rejected his remaining claims, including a jury instruction issue based on the invited error doctrine. 

4/18/24: Asking about parole status during a traffic stop does not violate the Fourth Amendment

In United States v. Ramirez, --- F.4th ---, No. 22-50045 (9th Cir. 2024), the Court affirmed the district court’s denial of a motion to suppress.  The issue was whether a police officer violates the Fourth Amendment by asking about parole status during a traffic stop.

Can a police officer during a traffic stop ask someone if he is on parole? Appellant Victor Ramirez contends that asking that question impinges on the Fourth Amendment because it gives the police license to search a parolee—who typically agrees to future searches as a condition of his release—for general criminal activity unrelated to the traffic stop. We disagree and hold that an officer may ask about parole status because it reasonably relates to the officer’s safety and imposes a negligible burden.

When the police pull someone over for a traffic violation, the officer can obviously investigate that traffic infraction. Rodriguez v. United States, 575 U.S. 348, 354 (9th Cir. 2015) (analogizing a traffic stop to a Terry stop). But a traffic stop “exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures.” Id. at 350. Thus, “[t]o be lawful, a traffic stop must be limited in its scope.” Taylor, 60 F.4th at 1239 (citing Rodriguez, 575 U.S. at 354–55).

Besides investigating the traffic violation that warranted the stop, a police officer can also make “ordinary inquiries incident to the traffic stop” and “attend to related safety USA V. RAMIREZ 7 concerns.” Id. (quoting Rodriguez, 575 U.S. at 354–55).1 The Supreme Court has held that lawful “inquiries incident to a traffic stop” may include “checking [a] driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance.” Rodriguez, 575 U.S. at 355. The Court has also held that “attend[ing] to related safety concerns” includes “certain negligibly burdensome precautions in order to complete his mission safely.” Id. at 354, 356. So, for example, an officer may order the driver of a vehicle to exit the vehicle during a traffic stop. Id. at 356 (citing Pennsylvania v. Mimms, 434 U.S. 106, 110 (1977) (per curiam) (“Establishing a face-to-face confrontation diminishes the possibility, otherwise substantial, that the driver can make unobserved movements; this, in turn, reduces the likelihood that the officer will be the victim of an assault.”)). 

Asking someone about his parole status is substantially similar to running a criminal history check during a traffic stop—a practice that we have held passes muster under the Fourth Amendment.

We thus hold that asking someone about his parole status during a traffic stop does not offend the Fourth Amendment. 

4/17/24: Forced use of biometrics to unlock a phone.

In United States v. Payne, --- F.4th ---, No. 22-50262 (9th Cir. 2024), the Court affirmed the district court’s denial of Jeremy Travis Payne’s motion to suppress evidence.

This is a lengthy opinion on 4th and 5th amendment issues. 

Payne was on California parole with various search conditions. During a traffic stop, and after learning about Payne's parole status, officers forcibly used Payne's thumb to unlock his phone.   Officers found incriminating evidence on the phone that led them to his home.  They first entered the house without a warrant for protective sweep before returning with a warrant and finding evidence of drug trafficking. 

After the district court denied his motion to suppress the evidence, he entered a conditional guilty plea to possession of fentanyl with intent to distribute.   

On appeal, Payne argued the compelled use of his thumb and the searches violated his Fourth and Fifth Amendment rights.

First, the Court held the phone search was authorized under Payne's general search condition, mandated by California law, allowing the suspicionless search of any property under his control.  It also rejected the argument that the search was unreasonable on a theory that it violated California’s prohibition against arbitrary, capricious, or harassing searches. In addition, the search of Payne’s photos, videos, and maps on his cell phone did not run afoul of Riley v. California, which held that officers cannot search the contents of an individual’s cell phone incident to their arrest, because Riley does not apply to parole searches of a cell phone.

Next, the Court held that the officers did not violate Payne’s Fifth Amendment privilege against self-incrimination when they compelled him to unlock his cell phone using his fingerprint. Payne established that the communication at issue was compelled and incriminating. The Court held, however, that the compelled use of a biometric to unlock an electronic device was not testimonial because it required no cognitive exertion, placing it in the same category as a blood draw or a fingerprint taken at booking, and merely provided the CHP with access to a source of potential information. Accordingly, the Fifth Amendment did not apply.

Finally, the Court noted: "We would be remiss not to mention that Fifth Amendment questions like this one are highly fact dependent and the line between what is testimonial and what is not is particularly fine. Our opinion should not be read to extend to all instances where a biometric is used to unlock an electronic device. Indeed, the outcome on the testimonial prong may have been different had Officer Coddington required Payne to independently select the finger that he placed on the phone."

4/16/24: Helpful decision on the hearsay exception for statements of a party opponent

In United States v. Mirabal, --- F.4th ---, No. 22-50217 (9th Cir. 2024), the Court vacated Gabriel Mirabal’s conviction by jury trial for two counts of assaulting a federal officer resulting in bodily injury, in violation of 18 U.S.C. § 111, and remanded for further proceedings.

The Court held the district court abused its discretion in excluding the sworn statement of a government attorney as hearsay at Mirabal’s trial because, in a criminal case, the sworn statement of a government attorney in a plea agreement or sentencing memorandum is a party admission, excluded from the definition of hearsay under Federal Rule of Evidence 801(d)(2).

Today, we examine the application of . . . Rule 801(d)(2) in the context of government attorney statements. Doing so, we hold that, in a criminal case, the sworn statement of a government attorney in a plea agreement or sentencing memorandum is a party admission, excluded from the definition of hearsay under Rule 801(d)(2).

There is no question that, as our decision in Van Griffin implies, “the Federal Rules clearly contemplate that the federal government is a party-opponent of the defendant in criminal cases. Nor can it be seriously disputed that, as the Department of Transportation in Van Griffin was the “relevant and competent section of the government” when it came to highway safety, so is the Department of Justice with respect to criminal prosecutions. The logic of our decision in Van Griffin comfortably encompasses formal, signed statements made by a government attorney in filings before a court, such as plea agreements and sentencing memoranda. We therefore hold that when a criminal defendant seeks to introduce such statements at trial, they fall within Rule 801(d)(2)’s hearsay exclusion for statements made by an opposing party.

We do not determine how far Rule 801(d)(2) extends to other government employees. And exactly which departments of the federal government are a party-opponent will depend on a case’s factual circumstances. Today, we hold only that “in criminal cases, the Justice Department certainly should be considered” a party-opponent of criminal defendants. 

4/12/24: Case on appellate waivers and Miller v. Gammie

In United States v. Medina-Luna, --- F.4th ---, No. 23-705 (9th Cir. 2024), the Court dismissed in part and affirmed in part Medina-Luna's appeal from the 41-month prison sentence imposed following his guilty plea to an information charging him with attempted reentry by a removed noncitizen in violation of 8 U.S.C. § 1326. 

Medina-Luna challenged the validity of his waiver of a grand jury indictment.  The Court held that Medina-Luna waived the right to appeal that issue by pleading guilty unconditionally. Relying on the Supreme Court’s decision in United States v. Cotton, 535 U.S. 625 (2002) (holding that defects in an indictment do not deprive a court of jurisdiction), the panel held that an error in procuring a knowing and voluntary waiver of indictment is nonjurisdictional and is therefore waived by a defendant’s subsequent guilty plea.

Citing Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (en banc) (holding that a three-judge panel may recognize a decision as overruled if it is clearly irreconcilable with a later precedent from the Supreme Court), the panel overruled United States v. Travis, 735 F.2d 1129 (9th Cir. 1984), to the extent Travis characterized any defect in the waiver of indictment as jurisdictional. The Court took the opportunity to reaffirm that Miller remains good law in all respects.

The Court also held the sentence was substantively reasonable.

4/6/24: Important mail fraud decision

In United States v. Milheiser, --- F.4th ---, No. 21-50162 (9th Cir. 2024), the Court vacated six defendants’ convictions for mail fraud and/or conspiracy to commit mail fraud arising from the defendants’ sales companies’ tactics in selling printer toner, and remanded.

The thrust of the Government’s case was that a sales company representative would call a business, falsely imply that the sales company was the business’s regular supplier of toner, and falsely state that the price of toner had increased. The representative would then state that the business could lock in the old price by purchasing more toner that day. The Government argued, and the jury was instructed, that if the defendants had made a misrepresentation that would be expected to and did cause a business to part with money, that constituted fraud. The defendants argued that this theory of fraud was overbroad because it permitted the jury to convict even though all of the businesses received the toner they ordered at the agreed price.

The Court agreed with the defense: 

We agree with the Second, Eleventh, and D.C. Circuits that not just any lie that secures a sale constitutes fraud, and that the lie must instead go to the nature of the bargain. That rule is consistent with our holding in Yates that the right to accurate information or to make an informed business decision does not constitute something of value under the federal criminal fraud statutes, 16 F.4th at 265, and with our holding in Bruchhausen that deception does not amount to fraud simply because it results in money changing hands, 977 F.2d at 467-68. The nature of the bargain requirement properly excludes from liability cases in which a defendant’s misrepresentations about collateral matters may have led to the transaction but the buyer still got the product that she expected at the price she expected. A misrepresentation will go to the nature of the bargain if it goes to price or quality, or otherwise to essential aspects of the transaction. 

Under those principles, the Government presented an overbroad theory of fraud to the jury. The Government argued that a conviction for mail fraud requires only that a defendant make a false statement that would be expected to and did cause someone to turn over money—not that the false statement went to the nature of the bargain. 

The jury instructions did not remedy the problem. The instructions did not tell the jury that, to support a conviction for fraud, a false statement must directly or indirectly deceive the victim about the nature of the bargain. Although Defendants requested such an instruction, the court declined to give it. Rather, the instructions stated that a misrepresentation was material if it “had a natural tendency to influence, or w[as] capable of influencing, a person to part with money or property.” 

4/4/24: Good sentencing decision

In United States v. Tat, --- F.4th ---, No. 22-50240 (9th Cir. 2024), the Court vacated the sentence and remanded for resentencing.

This was the second appeal in this case.  In the first appeal, the Court vacated one of Ms. Tat's convictions related to a money laundering scheme and remanded for resentencing.  After resentencing, Ms. Tat appealed again.  

The government argued that Ms. Tat waived her challenge to the sentencing enhancements by failing to raise them on appeal from her initial sentence in Tat I.  The Court rejected this argument. 

When we remand for de novo resentencing, it is a “settled principle” that vacating an appellant’s original sentence “legally ‘wipe[s] the slate clean,’” and that on remand in such a case, “the defendant is placed in the same position as if he [or she] had never been sentenced.” Generally, therefore, the district court is “free to consider any matters relevant to sentencing, even those that may not have been raised at the first sentencing hearing, as if it were sentencing de novo.”

We sent the case back to the district court to resentence Ms. Tat on a clean slate. Accordingly, Ms. Tat’s failure to challenge certain aspects of her initial sentence on appeal in Tat I cannot amount to an “intentional relinquishment or abandonment” of her right to challenge similar aspects of her second sentence in the present appeal. See Mercado-Moreno, 869 F.3d at 959 n.9. And because Ms. Tat was to be resentenced de novo, she was free to raise any timely objections at that resentencing, without regard to whether she might have forfeited such objections at the prior sentencing that was completely set aside.

Consistent with our precedent and with that of the Second and Third Circuits, we hold that Ms. Tat did not waive her challenge to the district court’s application of the sentencing enhancements following the de novo resentencing.

The Court also concluded that the district court erred in applying an organizer/leader enhancement. 

The district court may apply a four-level organizer/leader enhancement when “the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive.” U.S.S.G. § 3B1.1(a). To impose such an enhancement, “there must be evidence that the defendant exercised some control over others involved in the commission of the offense or was responsible for organizing others for the purpose of carrying out the crime.”

“Under this circuit’s clear articulation of § 3B1.1[], ‘even a defendant with an important role in an offense’ cannot receive an enhancement unless there is also a ‘showing that the defendant had control over others.’”

The district court erred in applying this enhancement to Ms. Tat for two reasons. First, contrary to the district court’s suggestion, Ms. Tat’s status as a mere member of the criminal enterprise—even if she was an essential member— does not bear on whether she was an organizer, leader, manager, or supervisor of the criminal activity. It is insufficient for purposes of the organizer/leader enhancement to show that, “but for” a defendant’s participation, the crime could not have occurred. 

Second, even if Ms. Tat had exercised the requisite level of control over participants in the criminal conduct, the enhancement was still improperly applied here. Because the criminal activity involved fewer than five participants,4 the government also had to show that the criminal activity was “extensive.” U.S.S.G. § 3B1.1(a).  

4/3/25: Good news from the 9th on 1324

Today, the Ninth Circuit vacated 1324 convictions in a pair of decisions. 

First, in United States v. Hanson, --- F.4th ---, No. 17-10548 (9th Cir. 2024), on remand from the Supreme Court, the Court vacated Helaman Hansen’s convictions on two counts of encouraging or inducing an alien to come to, enter, or reside unlawfully in the United States for private financial gain, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(iv) and 1324(a)(1)(B)(i).  The Court held that the Supreme Court’s decision in this case, United States v. Hansen, 599 U.S. 762 (2023), compels the insertion of a specific intent mens rea element into the jury instructions for charges under § 1324(a)(1)(A)(iv).  Under Hansen, the term "encourage or induce" now means the intentional encouragement of an unlawful act or the provision of assistance to a wrongdoer with the intent to further the commission of an offense.  Because the jury instructions for the two counts omitted this element, the instructions were erroneous.

Second, in United States v. Murad, --- F.App'x ---, No. 23-50026 (9th Cir. 2024) (unpublished), the Court vacated Wafa Hirzalla Murad's convictions for bringing into the United States an alien for financial gain and unlawfully bringing in an alien without presentation, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) and (iii).

This is one of my cases on appeal -- I did not handle the trial -- so I'm happy to share the good news! 

The Court held the district court plainly erred in admitting the material witness’s videotaped deposition testimony: "[T]he district court clearly erred in admitting the material witness’s deposition testimony because the government failed to present any evidence establishing the witness’s unavailability, and the district court did not make an unavailability finding. The error affected Murad’s substantial Confrontation Clause rights and seriously affected the fairness of the proceedings. The deposition testimony constituted the only evidence proving certain elements of the offenses, and Murad asserts the testimony would not have been admitted had she objected at trial. There are indications in the record that the material witness was available, including the witness’s promise under oath to return for trial, the availability of travel documents authorizing return, and the lack of any indication that the witness had lost contact with his attorney. Furthermore, the record does not indicate the government could have established a good-faith effort to obtain the witness’s presence at trial had Murad objected. Accordingly, Murad satisfies all four requirements of the plain error standard."

4/1/24: Inventory search case

In United States v. Sapalasan, --- F.4th ---, No. 21-30251 (9th Cir. 2024), a divided Court affirmed the district court’s denial of Sapalasan’s motion to suppress methamphetamine found during an officer’s inventory search of Sapalasan’s backpack. 

For seemingly the first time in a published opinion, the majority held that the police may conduct an inventory search of belongings when the property is lawfully retained and the search is done in compliance with police regulations, even after the individual has been released.  Basically, as long as the person was lawfully separated from his or her property, it does not matter that the person is not going to be imprisoned.  

The dissent thoroughly explains why this is incorrect.  Citing Illinois v. Lafayette, 462 U.S. 640 (1983), and Ninth Circuit case law emphasizing the significance of impending incarceration on the propriety of a jailhouse inventory search, Judge Hawkins disagreed with the majority’s conclusion regarding the inventory search of Sapalasan’s backpack at the police station after he had been released from questioning. Judge Hawkins wrote that the majority also refused to follow Ninth Circuit case law that requires consideration of whether the inventory search complied with existing state law requirements as part of the Fourth Amendment analysis.

3/25/24: Case on border-bust trial issues

In United States v. Jimenez-Chaidez, --- F.4th ---, No. 22-50069 (9th Cir. 2024), a divided panel affirmed Jose Jimenez-Chaidez’s jury conviction for knowingly importing cocaine and methamphetamine, vacated his sentence, and remanded for resentencing. 

This was a border-bust case with lack-of-knowledge as the defense. 

First, the Court held that the district court properly admitted evidence of Jimenez’s prior drug transports, including the testimony of a cooperating witness. The Court concluded this prior-act evidence was admitted for the proper purpose of showing knowledge and intent under Federal Rule of Evidence 404(b)(2), and the evidence was not unduly prejudicial under Rule 403.

Second, the majority held that the district court did not abuse its discretion in allowing an FBI agent to testify about the Cellebrite extraction of data from a cellphone as a lay witness rather than an expert witness because the agent’s testimony did not require specialized knowledge.  The dissent disagreed, explaining this was plainly unnoticed expert testimony. 

Third, the Court held that the district court erred by not making an explicit reliability finding related to an expert’s testimony about the value of the drugs found in Jimenez’s vehicle when he was arrested, but this error was harmless.

Finally, the Court vacated Jimenez’s sentence and remanded for resentencing because of recent authority clarifying the process for conducting a mitigating role inquiry under U.S.S.G. § 3B1.2.

3/18/24: Interesting Second Amendment decision

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."

3/15/24: The SCOTUS safety-valve decision

Today, in Pulsifer v. United States, 601 U.S. ___ (2024), the Supreme Court resolved the Circuit split on safety valve, with the majority holding that a defendant facing a mandatory minimum sentence is eligible for safety-valve relief under 18 U. S. C. §3553(f)(1) only if he satisfies each of the provision’s three conditions—or said more specifically, only if he does not have more than four criminal-history points, does not have a prior three-point offense, and does not have a prior two-point violent offense.

Rather than begin with the majority opinion, I am going to start with part of Justice Gorsuch's dissent: 

This dispute concerns who is eligible for individualized sentencing and who remains subject to mandatory minimums after the First Step Act. Before the Act, a defendant seeking to avoid a mandatory minimum had to satisfy five stringent statutory tests. After the Act, all those tests remain, only the first is now less demanding. As revised, it provides that a defendant may be eligible for individualized sentencing if he “does not have” three traits: (A) more than 4 criminal history points, (B) a 3-point offense, and (C) a 2- point violent offense. In lower court proceedings, the government admitted that this new test is “most natural[ly]” read to mean what it says: A defendant may be eligible for individualized sentencing unless he possesses all three listed traits—A, B, and C. Despite its admission, however, the government urges us to adopt a different construction. It asks us to read the First Step Act as promising a defendant a chance at individualized sentencing only when he does not have any of the three listed traits— A, B, or C. 

If this difference seems a small one, it is anything but. Adopting the government’s preferred interpretation guarantees that thousands more people in the federal criminal justice system will be denied a chance—just a chance—at an individualized sentence. For them, the First Step Act offers no hope. Nor, it seems, is there any rule of statutory interpretation the government won’t set aside to reach that result. Ordinary meaning is its first victim. Contextual clues follow. Our traditional practice of construing penal laws strictly falls by the wayside too. Replacing all that are policy concerns we have no business considering. Respectfully, I would not indulge any of these moves.

Justice Gorsuch's analysis, however, did not carry the day.  Instead, Justice Kagan found a majority to hold for the government's view: 

In sum, Paragraph (f )(1)’s criminal-history requirement sets out an eligibility checklist. A defendant is eligible for safety-valve relief only if he satisfies each of the paragraph’s three conditions. He cannot have more than four criminal-history points. He cannot have a prior three-point offense. And he cannot have a prior two-point violent offense. Because Pulsifer has two prior three-point offenses totaling six points, he is not eligible. It makes no difference that he does not also have a prior two-point violent offense.

3/12/24: Good 1326(d) decision on carjacking in violation of PC § 215

In United States v. Orozco-Orozco, --- F.4th ---, No. 22-50146 (9th Cir. 2024), the Court reversed the district court’s order denying Orozco’s motion to dismiss under 8 U.S.C. § 1326(d), and remanded for further proceedings.

Orozco was originally removed from the United States in 2013 through an expedited process after an immigration officer determined that his 2005 conviction for carjacking in violation of California Penal Code § 215 was an aggravated felony under the Immigration and Nationality Act (INA).

The district court (in the SDCA) denied Orozco's motion, agreeing with the government that his carjacking conviction qualified as a “theft offense,” and thus as an aggravated felony, under the INA.

The Ninth Circuit reversed: "In sum, despite § 215’s use of the common-law phrase 'felonious taking,' carjacking in California does not require a showing of intent to steal. Rather, § 215 requires only that the defendant intend to permanently or temporarily deprive the current driver or passengers of their possession of the vehicle, by force or by fear. We are bound by the California Supreme Court’s statement of the elements of § 215. We therefore hold that § 215 is not a categorical match for a generic theft offense and thus is not an aggravated felony under the INA."

The Court thus reversed and remanded for the district court to consider whether Orozco satisfied all three prongs of § 1326(d).

3/11/24: One case, two victories

No published criminal decisions today gives me time to share some good news about a case I won this morning in a memorandum.  

The case is United States v. Graves, No. 22-50289 (9th Cir. 2024).  This is my second appellate victory for Mr. Graves. 

The first time, after trial, the Ninth Circuit vacated his life sentence.  See United States v. Graves, 925 F.3d 1036 (9th Cir. 2019).   On remand, he got 25 years.  

We appealed again and I argued it last month.  The Ninth vacated the sentence again, finding the district court plainly erred in determining the mandatory minimum.  

There is helpful language in the decision for plain error sentencing appeals.   

The memorandum also discusses the statutory maximum for state offenses under the old California sentencing regime, pre-Cunningham.

Great way to start the week.

3/7/24: Speedy Trial Act case

In United States v. Layfield, --- F.4th ---, No. 22-50047 (9th Cir. 2024), the Court affirmed Philip James Layfield’s convictions for wire fraud, mail fraud, and various tax offenses. 

Layfiend argued that the twenty-one days it took the U.S. Marshals Service to transport him from the District of New Jersey (where agents arrested him) to the Central District of California (where the grand jury indicted him) should have triggered a Speedy Trial Act violation.

The Court rejected his argument.  It explained, Section 3161(c)(1) provides that the seventy-day STA clock is triggered only by the public filing of the indictment or the first appearance before a judge of the court in which the charge is pending, whichever date last occurs.  Thus, the twenty-one-day delay between Layfield’s detention in New Jersey and his first appearance before a judge in the CDCA was immaterial to the Speedy Trial Act analysis.

3/5/24: Receipt of the proceeds of extortion under 18 U.S.C. § 880

In United States v. Lemus, --- F.4th ---, No. 22-50046 (9th Cir. 2024), the Court affirmed convictions for conspiracy under 18 U.S.C. § 371; aiding and abetting the receipt of the proceeds of extortion under 18 U.S.C. §§ 880, 2(a); and receiving the proceeds of extortion under § 880.

The Court's introduction provides a good summary:

Federal law criminalizes receiving the proceeds of extortion. See 18 U.S.C. § 880. But must a person know that the money or property at issue was in fact payment from extortion? Or is it sufficient for a person to know that the money was somehow “unlawfully obtained”? Id. In this case, Edgar Hernandez Lemus and Junior Almendarez Martinez (collectively, “Defendants”) ask us to resolve these questions. Based on its plain language, we conclude that § 880 requires only that the government prove knowledge that the proceeds were “unlawfully obtained.” And so we affirm Defendants’ convictions, rejecting their § 880 mens rea arguments. 

*****

As stated above, § 880’s knowledge requirement is satisfied if the defendant knew the proceeds at issue were “unlawfully obtained”—meaning obtained in any manner contrary to or prohibited by law. 

2/28/24: conspiracy targeting U.S. military personnel and property in Iraq.

In United States v. Alahmedalabdaloklah, --- F.4th ----, No. 18-10435 (9th Cir. 2024), the Court affirmed in part and reversed in part the conviction, after a jury trial, of Ahmed Alahmedalabdaloklah (Oklah), a Syrian national, for participating in a conspiracy that targeted U.S. military personnel and property in Iraq.

The opinion is 113 pages and covers myriad issues, so I'm not going to summarize it myself. Instead, I'm including the Ninth Circuit's summary below:

Reversing in part, the panel agreed with the parties that Oklah’s convictions on Counts Three and Four, for conspiring to possess a destructive device in furtherance of a crime of violence and aiding and abetting the same, could not stand after the Supreme Court’s decision in United States v. Davis, 139 S. Ct. 2319 (2019). On those counts, the panel remanded with direction to the district court to vacate the convictions. 

The panel affirmed Oklah’s convictions on Counts One and Two, for conspiring to use a weapon of mass destruction, in violation of 18 U.S.C. § 2332a, and conspiring to damage U.S. Government property by means of an explosive, in violation of 18 U.S.C. § 844(f) and (n). 

As to Count Two, the panel held that 18 U.S.C. § 844(f) and (n) applied to Oklah’s extraterritorial conduct. The panel held that the presumption against extraterritoriality applies to criminal statutes as well as to civil statutes. Reconciling United States v. Bowman, 260 U.S. 94 (1922) (whether a criminal statute has extraterritorial reach depends on the nature of the criminalized conduct and the interests the statute protects), with Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247 (2010), and RJR Nabisco, Inc. v. European Cmty., 579 U.S. 325 (2016) (setting forth a two-step test for determining whether a statute applies extraterritorially), the panel held that a criminal statute applies extraterritorially when (1) a federal criminal offense directly harms the U.S. Government, and (2) enough foreseeable overseas applications existed at the time of the statute’s enactment to warrant the inference that Congress both contemplated and authorized prosecutions for extraterritorial acts. The panel concluded that the text and context of § 844(f) and (n) provide a clear indication that they apply extraterritorially, including to Oklah, a foreign national. Accordingly, the presumption against extraterritoriality was rebutted.

The panel held that, during pretrial discovery, the district court properly exercised its discretion in granting the Government’s motions to use the processes set forth in the Classified Information Procedures Act (CIPA) to withhold or “substitute” classified information from discovery. As recognized by Oklah, precedent foreclosed his argument that his constitutional rights were violated because he and his counsel were not present at several CIPA hearings and because his counsel was prohibited from sharing or discussing certain “Secret”-level documents with him. Having placed itself in defense counsels’ shoes and examined the classified records in full, the panel concluded that the district court did not abuse its discretion in its CIPA rulings, and the panel confirmed that the withheld classified materials were either not discoverable, or were not relevant and helpful to Oklah’s defense. The panel held that the district court also did not abuse its discretion by authorizing the Government to turn over substitution statements to the defense in lieu of other discovery.

The panel concluded, however, that several of the Government’s supporting declarations were insufficient to sustain its invocation of the state-secrets privilege because this privilege requires formal invocation, either by the head of the department that has control over the matter or by a minister who is the political head of the department. The panel excused the Government’s failure to comply with the formal invocation requirement in this case because it would be of little or no benefit to remand for the purpose of having the department head agree that the disclosure of the classified information would pose a risk to national security.

The panel held that the use at trial of the overseas deposition testimony of Jamal Al-Dhari about Oklah’s connection to the Iraqi Revolution Brigades did not violate Oklah’s rights under the Confrontation Clause; the Supreme Court’s rulings in Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), and Napue v. Illinois, 360 U.S. 264 (1959); or the rule against the admission of hearsay evidence. 

The panel held that the district court properly excluded, as hearsay, emails between FBI Special Agent Whitson and Al-Dhari. 

The panel held that the district court properly admitted the testimony of Christopher Graham and refused to grant a mistrial or to strike Graham’s expert testimony on the Government’s physical evidence. 

The panel held that the Government’s failure to produce James Dempsey, a Department of Defense-affiliated witness, at trial did not violate Oklah’s constitutional rights to due and compulsory process. 

The panel held that the district court’s refusal to order the Government to search the entire Department of Defense for relevant documents was not error under Brady, which requires the Government to produce to the defense exculpatory or impeaching evidence in the prosecutor’s possession.

The panel held that remand for resentencing was warranted because the parties agreed that the convictions on Counts Three and Four must be vacated, but the panel rejected Oklah’s argument that the case should be reassigned to a different district judge on remand.

2/14/24: Case on home searches and statements

In United States v. Parkins, --- F.4th ---, No. 22-50186 (9th Cir. 2024), the Court reversed the district court’s denial of Brett Wayne Parkins’s suppression motion concerning the search of his apartment, affirmed the district court’s refusal to suppress Parkins’s pre-arrest and post-arrest statements, and remanded, in a case in which Parkins was convicted of aiming a laser pointer at an aircraft.

When patrol officers came to his apartment, Parkins made clear he did not want them to enter, but his girlfriend consented to a search.  The Court, after reviewing the Supreme Court’s cases regarding warrantless searches involving the consent of a co-tenant, concluded that to override his girlfriend's consent, Parkins must have both been present on the premises and expressly refused consent. The Court explained that a defendant need not stand at the doorway to count as being physically present— presence on the premises (including its immediate vicinity) is sufficient. The Court wrote that in light of the layout of the property and Parkins’s close proximity to his apartment, the nearby mailboxes bordering the parking lot where Parkins was detained were part of the relevant premises; thus, Parkins was physically present on the premises to validly object. The panel also wrote that it is clear that Parkins expressly refused consent, as Parkins’s statement not to let the police into the apartment expressly conveyed his objection and the import of that statement was especially clear following on the heels of his physical resistance at the doorway of his home. Accordingly, the consent-based search of Parkins’s home was unlawful.

The Court, however, found that the district court correctly declined to suppress Parkins’s pre-arrest and post-arrest statements.  

First, because Parkins was not subject to interrogation during his pre-arrest detention, there was no Miranda violation.  Second, as to the post-arrest statements made during his jailhouse interview, the Court concluded that Parkins’s statements were not a product of the unlawful search of his apartment because the officers did not confront Parkins with the evidence obtained as a result of that search.

1/24/24: Expedited removals and acceptance of responsibility

In United States v. Gambino-Ruiz, --- F.4th ---, No. 21-50303 (9th Cir. 2024), the Court affirmed José Gambino-Ruiz’s conviction and sentence for illegal reentry under 8 U.S.C. § 1326 in a case in which he argued (1) the removal order that served as the basis for that charge—an expedited removal—was improper under the Immigration and Nationality Act; and (2) the district judge considered impermissible factors in denying a downward sentencing adjustment for acceptance of responsibility.

In his collateral attack under 8 U.S.C. § 1326(d), Gambino-Ruiz maintained that his 2013 removal violated his due process rights because he was not inadmissible on grounds that authorize expedited removal, and thus could not be placed in expedited removal proceedings.

In a complex opinion addressing the relevant statutory interplay and fictive legal states, the Court rejected his claim.  It is very hard to summarize the Court's analysis, so I'll just share its conclusion: 

We conclude that Gambino-Ruiz was inadmissible under § 1182(a)(7) and therefore properly subject to expedited removal under § 1225(b)(1)(A)(i). The theory Gambino-Ruiz propounds overreads the significance of our decision in Torres and would “create a perverse incentive to enter at an unlawful rather than a lawful location.”  This was the precise situation that Congress intended to do away with by enacting the Illegal Immigration Reform and Immigrant Responsibility Act. We refuse to interpret the INA in a way that would in effect repeal that statutory fix. We hold that the government did not violate Gambino-Ruiz’s due process rights when it removed him via expedited proceedings in 2013. He was properly convicted of illegal reentry under 8 U.S.C. § 1326.

As to his argument for acceptance of responsibility after trial, the Court held: "Gambino-Ruiz has not persuaded us that his was the rare circumstance where the adjustment for acceptance of responsibility is due after the defendant has proceeded to trial. Although he confessed his illegal status when he was most recently apprehended, he sought to suppress those inculpatory statements pre-trial. Apart from his pre-trial decisions, he continued to contest his guilt during trial by attempting to negate a key element of the offense, namely his alienage. His motive at trial was clearly beyond merely 'preserv[ing] issues that do not relate to factual guilt.' U.S.S.G. § 3E1.1 cmt. 2. We therefore affirm the district judge’s denial of the acceptance-of-responsibility adjustment and Gambino-Ruiz’s sentence."

1/17/24: Case on the Maritime Drug Law Enforcement Act

In United States v. Marin, --- F.4th ---, No. 22-50154 (9th Cir. 2024), the Court affirmed two defendants’ convictions for violating 46 U.S.C. § 70503(a)(1) of the Maritime Drug Law Enforcement Act, which prohibits possession of a controlled substance with intent to distribute while on board a covered vessel.

Defendants challenged the government’s jurisdiction, arguing the provision under which jurisdiction was exercised is unconstitutional because (1) Congress’s authority to “define and punish . . . Felonies committed on the high Seas,” U.S. Const. art. I, § 8, cl. 10 (the “Felonies Clause”), is limited by international law principles; and (2) § 70502(d)(1)(C), enacted under the Felonies Clause, conflicts with international law as to when a vessel may be treated as stateless. 

The Court did not decide the first issue, but held instead that the definition of “vessel without nationality” under § 70502(d)(1)(C) does not conflict with international law. 

"Because there is no rule of international law speaking to this jurisdictional question, the United States does 'not overstep the limits which international law places upon its jurisdiction,' in choosing to treat vessels as stateless where the claimed nation responds that it can neither confirm nor deny the registry. We therefore need not address defendants’ argument that Congress’s powers to enact laws pursuant to the Felonies Clause is constrained by international law to conclude that defendants’ challenge to § 70502(d)(1)(C) of the MDLEA fails. We affirm defendants’ convictions." 

1/3/24: Miranda rights with administrative rights and the corpus delicti doctrine (illegal entry case)

In United States v. Gonzalez-Godinez, --- F.4th ---, No. 21-50031 (9th Cir. 2024), the Court affirmed Mario Gonzalez-Godinez’s conviction for attempted illegal entry under 8 U.S.C. § 1325(a).

First, distinguishing the circumstances in United States v. San Juan-Cruz, 314 F.3d 384, 387 (9th Cir. 2002), the Court rejected Gonzalez's argument that the Miranda warning he received was inadequate because the agent also warned Gonzalez that the post-arrest interview may be his only chance to seek asylum. 

The Court held, "[w]hile these two warnings may have posed difficult decisions for Gonzalez, they are neither contradictory nor confusing. Criminal defendants often face a fork in the road with potential peril on either path. The record suggests that Gonzalez understood his rights, and Gonzalez’s gambit was to talk in hopes of seeking asylum, despite the risks. We thus hold that the government did not need to provide further clarification to the Miranda warnings."

Second, the Court also rejected Gonzalez's argument under the corpus delicti doctrine that the government failed to corroborate his confession that he was a Mexican citizen who lacked documentation.   The Court held, "the corpus delicti doctrine sets a low bar, requiring only some evidence to support the confession. Sufficient evidence supported Gonzalez’s confession."