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

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

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

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

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

11/13/24: Important Fourth Amendment decision

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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