4/30/25: Invited error

In United States v. Turrey, --- F.4th ---, No. 23-1956 (9th Cir. 2025), the Court granted the government’s request to publish an unpublished Memorandum disposition affirming Joseph Anthony Turrey’s conviction on multiple counts of sexual abuse in Indian Country.

The case is about the defense inviting error, so it is no wonder the government sought publication.  

“The doctrine of invited error prevents a defendant from complaining of an error that was his own fault.” United States v. Magdaleno, 43 F.4th 1215, 1219 (9th Cir. 2022) (citation omitted). “If a defendant has both (1) invited the error and (2) relinquished a known right, then the alleged error is considered waived.” Id. at 1219–20 (cleaned up). A defendant invites error when he “induces or causes the error.” Id. at 1220 (cleaned up). When evaluating whether a defendant intentionally relinquished a known right, we look for “evidence in the record that the defendant was aware of, i.e., knew of, the relinquished or abandoned right.”

Turrey contends that testifying Minor Victim 2’s (“MV2”) prior forensic interviews were inadmissible under the Federal Rules of Evidence (“FRE”). To the extent admission of the full videotaped interviews was an error, however, Turrey waived this claim by inviting error. See Magdaleno, 43 F.4th at 1220. Although Turrey initially contended in a motion in limine that MV2’s videotaped interviews were not admissible under FRE 801(d)(1)(B), Turrey changed course in a subsequent hearing and asked the district court to admit her interviews in full under FRE 106. By asking the district court to admit MV2’s full interviews, Turrey caused the error he now alleges. 

Because Turrey did not object each time an interview video was admitted at trial, Turrey relinquished his known right to object to the evidence. See id. The record shows that Turrey knew he was relinquishing this right, see Perez, 116 F.3d at 845, because Turrey’s counsel said, “I have not objected to a great deal of hearsay evidence. That is just a strategic choice . . . I would like the whole interview[s].”  

The opinion then continues in this same vein, finding another alleged error waived under the invited error doctrine.  The moral of the story .... Object!

4/28/25: Two cases today - one on U.S.S.G. § 4C1.1 and the other on sovereign immunity.

Beginning with the Guidelines case, in United States v. Gonzalez-Loera, --- F.4th ---, No. 24-1013 (9th Cir. 2025), the Court affirmed the district court’s denial of Gonzalez-Loera’s motion for a sentence reduction under the new zero-point offender provision of U.S.S.G. § 4C1.1.

Roberto Gonzalez-Loera appeals from the district court’s order denying his motion for a sentencing reduction under the new zero-point offender provision of the United States Sentencing Guidelines (“U.S.S.G.”) § 4C1.1. 1 Section 4C1.1 allows a court to adjust a defendant’s offense level downward if he “meets all of the [listed] criteria.” U.S.S.G. § 4C1.1(a). Here, we are concerned only with the criteria in § 4C1.1(a)(10) (“subsection (10)”): “[T]he defendant did not receive an adjustment under [U.S.S.G.] § 3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848.” Id. § 4C1.1(a)(10). 

Because of subsection (10)’s plain and unambiguous text, we hold that it contains two distinct requirements, and a defendant must satisfy both to obtain relief. Thus, a defendant is ineligible for relief under § 4C1.1 if he either received an adjustment under § 3B1.1 or engaged in a continuing criminal enterprise. Because Gonzalez-Loera received an adjustment under § 3B1.1, he is ineligible for relief, and we affirm the district court’s denial of his motion to reduce his sentence.

Of note, "Effective November 1, 2024, the Commission amended § 4C1.1 by dividing the criteria in subsection (10) into two subsections. U.S.S.G. supp. app. C, amend. 831, at 287 (Nov. 2024) (striking paragraph (10) and inserting two new paragraphs: “(10) the defendant did not receive an adjustment under § 3B1.1 (Aggravating Role); and (11) the defendant was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848”). The Commission explained that the purpose of the amendment was “[t]o clarify the Commission’s intention that a defendant is ineligible for the adjustment if the defendant meets either of the disqualifying conditions.” Id. at 288. The Commission’s clarifying amendment makes clear that subsection (10) sets forth two separate requirements."

Next, in United States v. Pangang Group Company, Ltd., --- F.4th ---, No. 22-10058 (9th Cir. 2025), the Court  affirmed the district court’s denial of a motion to dismiss an indictment charging four affiliated companies (“the Pangang Companies”) with economic espionage in connection with their alleged efforts to steal from DuPont trade secrets relating to the production of titanium dioxide.

This is a lengthy opinion.  And if you have a case involving a foreign government owned company, the decision is a must read.  But for purposes of this summary, here are the key points: 

Section 66(g) of the Restatement extends “[t]he immunity of a foreign state” to “a corporation created under its laws and exercising functions comparable to those of an agency of the state.” RESTATEMENT, supra, § 66(g). “The term ‘agency’ as used in this Section means a body having the nature of a government department or ministry.” RESTATEMENT, supra, § 66 cmt. a. 

We hold that the Pangang Companies have not made a prima facie showing that they exercise functions comparable to those of an agency of the PRC. They therefore are not the kinds of entities eligible for foreign sovereign immunity from criminal prosecution. 

Neither the allegations in the indictment nor anything else in the record establishes a prima facie claim that the Pangang Companies exercise functions comparable to those of an agency of the PRC. 

Because the record does not suggest that the Pangang Companies are anything more than conventional corporate entities engaged in commercial activities, the Pangang Companies fail to establish a prima facie case that they are entities “exercising functions comparable to those of an agency of the state.” 

4/11/25: Interesting 11th Circuit decision on Hobbs Act robbery

No published criminal decisions today from the 9th, so I have time to share an interesting case from the 11th Circuit. 

In United States v. O'Steen, --- F.4th ---, No. 22-13569 (11th Cir. 2025), the Court vacated the defendant's convictions. 

This appeal is the last chapter of a lengthy FBI investigation of the State Attorney for the Third Judicial Circuit of Florida, Jeffrey Alan Siegmeister. The investigation began in August 2018, after Andy Tong, whom Siegmeister was prosecuting for maintaining a gambling house in violation of Florida law,2 told the FBI that his attorney, Marion Michael O’Steen, would have to pay Siegmeister $50,000 for a favorable disposition of the case. The investigation concluded in February 2021, when a Middle District of Florida grand jury returned a twelve-count indictment against Siegmeister and O’Steen. Siegmeister was charged in eleven counts, O’Steen in four. Relevant here are Counts One through Four .

The Court's Hobbs Act discussion is particularly interesting. 

In his Rule 29 motion for acquittal at trial, O’Steen argued that he could not be convicted of Hobbs Act extortion because the extorted property must be the “actual property” of the victim.

The Hobbs Act defines “commerce” to include all “commerce over which the United States has jurisdiction.” 18 U.S.C. § 1951(b)(3). In other words, the statute reaches only as far as Congress can exercise its constitutional authority over interstate commerce. See U.S. Const. art. I, § 8, cl. 3. In order to establish the required “interstate nexus,” the Government must “show a realistic probability of an effect, or some actual de minimis effect, on commerce.” 

Although this Court has never squarely considered whether the Government can prove Hobbs Act extortion where the extorted property was provided solely by law enforcement, the Sixth Circuit addressed precisely that question in United States v. DiCarlantonio, 870 F.2d 1058 (6th Cir. 1989). In that case, like here, the allegedly extorted money had been provided to the victim by the FBI. See DiCarlantonio, 870 F.2d at 1060. And the Sixth Circuit held that “the mere receipt of government funds” could not create the requisite effect on interstate commerce. Id. at 1060–61; see also United States v. Rindone, 631 F.2d 491, 494 (7th Cir. 1980). 

We agree. Although the use of government funds as bribe money depletes the funds available to the government, it does not “deplete[] the assets of an individual who is directly engaged in interstate commerce.” See Diaz, 248 F.3d at 1084–45 (emphasis added). Therefore, evidence of an alleged extortion involving purely government money cannot establish even the minimal effect on interstate commerce that is required by the Hobbs Act.

4/2/25: Convictions set aside under Cal. P.C. 1203.4 are not "expunged" for Guidelines purposes

In United States v. Carver, --- F.4th ---, No. 23-4105 (9th Cir. 2025), the Court affirmed Carver's sentence, holding that convictions set aside under Cal. P.C. 1203.4 are not "expunged" for Guidelines purposes. 

In determining a defendant’s criminal history under the United States Sentencing Guidelines (“Guidelines”), courts do not count sentences for “expunged convictions.” U.S.S.G. § 4A1.2(j). We have held that convictions set aside under section 1203.4 of the California Penal Code are not expunged for purposes of section 4A1.2(j) of the Guidelines. See United States v. Hayden, 255 F.3d 768, 772 (9th Cir. 2001). Because Hayden used the “‘traditional tools’ of construction” to reach its conclusion, Kisor v. Wilkie, 588 U.S. 558, 575 (2019) , we reject the defendant’s argument that Kisor overruled Hayden.