10/11/24: An “oily bilge water” case

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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