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.