5/29/24: Ankle monitors are not like shackles.

In United States v. Wiley, --- F.4th ---, No. 22-50235 (9th Cir. 2024), the Court affirmed a conviction in a case in which Chanel Wiley contended that, during jury selection, her ankle monitor started beeping, thereby prejudicing her and warranting a new trial.

There is a majority and concurrence and they agree on very little.  

According to the majority, the shackles in Deck v. Missouri, 544 U.S. 622 (2005), and the ankle monitor in this case are two very different things, and ankle monitors are not entitled to Deck’s presumption of prejudice. The panel held that ankle monitors are also not inherently prejudicial under Holbrook v. Flynn, 475 U.S. 560 (1986). Thus, Wiley was required to prove actual prejudice to sustain her claim. The panel held that, even if a juror knew the beeping sound came from the monitor, Wiley failed to prove that she was actually prejudiced.

The concurrence argued that the majority reached out to decide this issue for no reason.   

As appellate judges, we like questions of law. Unfortunately for us, we encounter many cases where the facts prevent us from reaching them. In those cases, we ordinarily cool our jets and resolve the issues on the facts, without announcing new and unnecessary rules of law. This should have been one such case. Here, Wiley asks us to determine whether the ankle monitor that she wore during her criminal trial violated her right to due process. The record, however, does not reflect that any juror perceived Wiley’s ankle monitor. That glaring hole in the record forecloses Wiley’s due process argument and should have ended our analysis. 

But the majority cannot help itself. Rather than adjudicate the case on the record before us, it assumes a material fact: that at least one juror was aware of Wiley’s ankle monitor. It proceeds to announce not one but two rules of constitutional law. I disagree with the majority’s decision to assume such a critical fact in an effort to reach a due process issue. But the majority makes matters worse in its handling of that due process issue. It concludes that an ankle monitor is not a “shackle” within the meaning of Deck v. Missouri, 544 U.S. 622 (2005), and that it is not an inherently prejudicial trial practice. Although I generally agree that an ankle monitor is not quite a “shackle,” I conclude that a perceptible ankle monitor is inherently prejudicial. After all, an ankle monitor is a distinctive and stigmatizing device that brands the defendant as an especially dangerous or culpable person. Because of that, it undermines the presumption of innocence and erodes the fairness of the fact-finding process. 

This case never should have been resolved this way. The record does not allow us to reach Wiley’s due process argument, and our analysis should have ended there. But the majority boldly strides ahead to hold that an ankle monitor is not an inherently prejudicial courtroom practice. The majority’s attempts to downplay an ankle monitor’s deleterious impact are understandable. As judges, we are accustomed to seeing defendants clad in shackles and prison attire, so we do not blink at ankle monitors. But our perspective as jurists is not what matters here. Our task is to “look at the scene presented to jurors.” Holbrook, 475 U.S. at 572 (emphasis added). We ask whether “reason, principle, and common human experience” suggest that those everyday jurors will become prejudiced against the defendant. See Estelle, 425 U.S. at 504. The majority fails to understand that ordinary people are not accustomed to ankle monitors or the harmful messages that they convey. When a juror perceives an ankle monitor, it stands out and readily brands the defendant as someone dangerous and untrustworthy. For that reason, an ankle monitor “pose[s] an unacceptable threat to [the] defendant’s right to a fair trial.” Holbrook, 475 U.S. at 572. I respectfully disagree with the majority’s suggestions otherwise

5/24/24: Case on federal expungement

In United States v. Groppo, --- F.4th ---, No. 22-50288 (9th Cir. 2024), the Court affirmed the district court’s denial of Salvatore Groppo’s motion to expunge his conviction for aiding and abetting the transmission of wagering information for his role as a “sub-bookie” in an unlawful international sports gambling enterprise.

The Court held that because Groppo alleged neither an unlawful arrest or conviction nor a clerical error, the district court correctly determined that it did not have ancillary jurisdiction to grant the motion to expunge. The panel explained that a district court is powerless to expunge a valid arrest and conviction solely for equitable considerations, including alleged misconduct by the IRS.

[W]e have held that “a district court’s ancillary jurisdiction is limited to expunging the record of an unlawful arrest or conviction, or to correcting a clerical error.” Sumner, 226 F.2d at 1014. And a defendant requesting expungement for her unlawful conviction must have first “obtained a judgment that her conviction must be vacated or otherwise set aside.” Crowell, 374 F.3d at 797. By contrast, a district court is powerless to expunge “a valid arrest and conviction solely for equitable considerations” because such relief falls outside its ancillary jurisdiction. Sumner, 226 F.2d at 1014.

5/23/24: Interesting hearsay decision

In United States v. Lucas-Hernandez, --- F.4th ---, No. 22-50110 (9th Cir. 2024), the Court affirmed Romeo Lucas-Hernandez’s misdemeanor conviction for attempted illegal entry under 8 U.S.C. § 1325(a)(1), following a bench trial before a magistrate judge, in a case in which Lucas-Hernandez asserted that the magistrate judge erred by admitting a border patrol agent’s Spanish-to-English translation of Lucas-Hernandez’s field statements.

On appeal, Lucas-Hernandez asserted that the magistrate judge erred by admitting a border patrol agent’s Spanish-to-English translation of Mr. LucasHernandez’s field statements under Federal Rule of Evidence 801(d)(2)(A) without determining whether the agent was a “language conduit” under United States v. Nazemian, 948 F.2d 522, 527 (9th Cir. 1991), cert. denied, 506 U.S. 835 (1992). We hold that Nazemian applies to the statements of a party opponent that are translated by a testifying witness, but that any error in admitting Agent Mauler’s Spanish-to-English translation was harmless.

The government argues that the Nazemian analysis is inapplicable to cases where, as here, “there was no interpreter.” We disagree. If anything, it is even more critical for courts to assess the language competence of someone who is not a formal interpreter, and whose language proficiency has neither been tested nor certified, when the prosecution seeks to rely on that person’s translations of statements purportedly made by or to a criminal defendant. Particularly where a person with minimal language skills attempts to communicate in that language with a potential criminal defendant, the risk of mispronunciation, miscommunication, or mistranslation is high. See, e.g., United States v. Ramos, 623 F.3d 672, 678–79, 680–81 (9th Cir. 2010) (holding that an immigration officer with limited Spanish training did not provide a competent translation for purposes of a waiver of appeal, even though she asked routine questions). Applying the Nazemian analysis in these circumstances helps to ensure the accuracy of statements or admissions made in another language before they can be admitted against a criminal defendant.

We hold that the Nazemian analysis applies to the present circumstances because Agent Mauler testified in English as to Lucas-Hernandez’s statements, which were originally made in Spanish. As a result, the magistrate judge was required to determine whether Agent Mauler’s translations “fairly should be considered the statements of [Lucas-Hernandez],” applying the factors identified in Nazemian, 948 F.2d at 527. However, because any error in admitting Agent Mauler’s testimony was harmless, we affirm the district court’s ruling upholding LucasHernandez’s conviction under 8 U.S.C. § 1325(a)(1). 

5/21/24: Monetary sanctions against the government upheld in important Brady decision

We should all read United States v. Cloud, --- F.4th ---, No. 22-30044 (9th Cir. 2024).

On an interlocutory government appeal, the Court affirmed the district court’s order, imposed under its exercise of supervisory powers, directing the Government to pay monetary sanctions as reimbursement for the time spent getting to the bottom of the Government’s nondisclosure of information suggesting that its star witness in a criminal trial was willing to shape her testimony in exchange for certain benefits.  

In the midst of a complicated five-body homicide trial, the district court learned that the Government failed to turn over information suggesting that its star witness, Esmeralda Z., was willing to shape her testimony in exchange for certain benefits. The defense did not learn of this turn of events from the Government. Rather, the night before the witness was expected to testify, her counsel alerted defense counsel of text messages that implicated Esmeralda’s credibility. Defense counsel informed the court, and after hearing testimony that revealed additional troubling details, the court entered an order sanctioning the Government for violating James Cloud’s due process rights under Brady v. Maryland, 373 U.S. 83 (1963). The court excluded the witness and ordered the Government to pay a modest monetary sanction as reimbursement for the time spent getting to the bottom of the nondisclosure.

Not only did the Government suppress evidence, but that suppression was material under Brady. Consistent with our circuit precedent, we affirm the monetary sanctions against the Government, which were imposed under the district court’s exercise of supervisory powers, and we reject the Government’s argument that sovereign-immunity principles bar the sanctions. See United States v. Woodley, 9 F.3d 774, 782 (9th Cir. 1993).   

The Court has counseled that a due process violation under Brady and Giglio has “three components”: “[1] The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; [2] that evidence must have been suppressed by the [government], willfully or inadvertently; and [3] prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281–82 (1999). 

Favorability is not in question: “[E]vidence that has any . . . impeachment value is, by definition, favorable.” Comstock v. Humphries, 786 F.3d 701, 708 (9th Cir. 2015) (citation omitted). The district court correctly concluded— and the Government does not dispute—that the first Brady prong was thus satisfied. Evidence that Esmeralda, a material witness, was negotiating financial benefits for her testimony squarely put her credibility into doubt. Likewise, evidence that Esmeralda’s boyfriend attempted to bargain with a federal agent in exchange for her favorable testimony did the same. Esmeralda’s admission that although she was somewhat confused about what happened during the shooting, she was willing to nonetheless “change” her testimony and say “whatever” the Government “wanted [her] to say” is classic impeachment evidence.

The Government acknowledges that the suppression determination—which is intrinsically bound up in a district court’s factual findings—is likely entitled to deferential review. We agree and join our sister circuits in holding that clear error review applies to a district court’s factual findings in the Brady context.

The “duty to disclose is affirmative”—the Government’s obligation is not contingent on a request by the accused.

[T]he Government took the position that the proposed order was unnecessary, as “[t]he United States is well aware of its duties under Brady.” Hindsight suggests otherwise.

The rule is disclosure, not gaming the impact the disclosure might have. Rather than abide by that rule, however, the Government remained silent.

Given the record and the district court’s findings (which easily withstand clear error review), we have little trouble concluding that the evidence was suppressed.

In evaluating materiality, our Brady case law has used “prejudice” and “materiality” interchangeably, and we do so here.  We agree with the district court that the Government’s suppression prejudiced Cloud under the materiality standard applicable to withheld evidence discovered before or during trial. This analysis differs from the traditional Brady scenario in which the government’s suppression is discovered after a trial and conviction. In the latter, more typical Brady scenario, suppressed evidence is deemed material where “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Strickler, 527 U.S. at 280 (citation omitted). But, as we have observed, this standard “necessarily is a retrospective test, evaluating the strength of the evidence after trial has concluded.” United States v. Olsen, 704 F.3d 1172, 1183 (9th Cir. 2013). This analytical framework is a poor fit in cases like this one, where the suppression is discovered during trial and before a “look back” is possible.

[T]he “proper test for pretrial disclosure of exculpatory evidence should be an evaluation of whether the evidence is favorable to the defense, i.e., whether it is evidence that helps bolster the defense case or impeach the prosecutor’s witnesses.”

“Whether a jury would ultimately find the evidence convincing and lead to an acquittal is not the measuring rod here.” Id. at 1033. Rather, the materiality inquiry should evaluate the relative value of the withheld evidence “on the basis of the indictment, the pretrial proceedings, the opening statements, and the evidence introduced up to that point.” Id. We also suggested that the materiality analysis could consider whether, had the evidence been timely disclosed, it might have altered the prosecution or defense strategy.

[I]n arguing that any prejudice was ultimately avoided because Esmeralda did not testify, the Government asks us to create a perverse rule: that it cannot be sanctioned for withholding impeachment evidence about a critical witness whose testimony could have been determinative of guilt or innocence, simply because the district court caught its misconduct too early. This argument, if taken to its logical extreme, could risk preventing a trial judge from imposing any forward-looking Brady sanction under the rationale that there can be no due process violation unless and until the court permits the government’s concealment of evidence to fatally taint the trial’s result. 

Finally, we consider whether the district court violated the Government’s sovereign immunity by imposing monetary sanctions under an exercise of its supervisory powers.  This question was answered in United States v. Woodley: “Sovereign immunity does not bar a court from imposing monetary sanctions under an exercise of its supervisory powers.” 9 F.3d at 782. The district court thus did not plainly err in imposing this sanction. 

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.”).