11/21/17: Federal custody and prosecutorial vindictiveness

In United States v. Brown, --- F.3d ---, No. 16-30143 (9th Cir. 2017), the Court held:

(1) when an inmate serving a federal sentence is transferred to a state institution under a writ of habeas corpus ad prosequendum, he or she remains in “the custody of the Attorney General” -- i.e., in federal custody.  Thus, in this case, the defendant could be federally prosecuted for attempted escape from the state institution.

(2) when the government first indicates it does not intend to bring charges, but then receives (unsolicited) a written confession, and thereafter files charges, this does not create a presumption of vindictiveness.

The case also has some interesting stuff for us appellate people. 

The Court reminds us that, like other jurisdictional challenges, "the merits of a vindictive prosecution claim are reviewable even after entry of an unconditional plea because the defendant is contending that “the very initiation of the proceedings against him” constitute a denial of the due process of law."

Also, there is a good fn explaining that, when no facts are at issue, "the question is purely legal."

11/3/17: 1326 & Batson decision

 In United States v. Hernandez-Quintania, --- F.3d ---, No. 16-50171 (9th Cir. 2017), the Court affirmed the defendant’s conviction for illegal reentry in violation of 8 U.S.C. § 1326. 

The defendant challenged the sufficiency of the evidence establishing that he did not obtain consent to reapply for admission prior to entering the United States.  The Court rejected the argument, holding that, under the statute’s plain language, the consent to reapply must come after the defendant’s most recent removal, regardless of whether he had prior permission to reapply.  

The Court found sufficient evidence that the defendant did not have such permission after his last removal.

The Court also rejected the defendant’s Batson claim, finding he failed to establish a prima facie case of a discriminatory purpose for the preemptory challenges at issue.  

This is a good reminder that, if you are going to make a Batson challenge, you better have something specific to say in support other than that the juror was a minority. 

11/2/17: Interesting obstruction of justice case

In United States v. Johnson, --- F.3d ---, No. 16-50018 (9th Cir. 2017), the Court vacated the defendant's obstruction-of-justice conviction under 18 U.S.C. § 1512(b)(3) for failing to include material information about the use of force upon an inmate in reports documenting the encounter with the inmate. 

Section 1512(b)(3) provides, in relevant part: 

Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to . . . . hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense . . . . shall be fined . . . or imprisoned not more than 20 years, or both. § 1512(b)(3). 

The Court held that, under Fowler v. United States, 563 U.S. 668 (2011), the government had to prove a “reasonable likelihood” that the omitted information would have reached federal officers.  

And, "[a]pplying the Fowler standard, we conclude that the Government failed to present sufficient evidence to show that there was a reasonable likelihood that the communication would reach a federal officer. The Government’s evidence established nothing 'more than [a] remote, outlandish, or simply hypothetical' possibility that Johnson’s reports could have reached a federal officer." 

10/30/17: All about drug scheduling

Did you ever want to learn all about how drugs get on the federal schedules?  

If so, United States v. Kelly, --- F.3d ---, No. 16-10460 (9th Cir. 2017), is the case for you.  

Long story short, the defendant moved to dismiss the indictment against him, arguing the substance he possessed, ethylone, was not properly scheduled.  The district court denied the motion and the Ninth affirmed on a conditional-plea appeal.  

The analysis has to do with the fact that the Controlled Substances Act, as codified at 21 U.S.C. §§ 811(h) and 812(b), permits the DEA to make findings for a parent substance as a basis to temporarily schedule that substance and its isomers.  In this case, ethylone was an isomer of a parent substance that was properly scheduled. 

There is also some discussion of Chevron deference.

If you have a designer drug case (or secretly wish you were a chemist), you should probably read this opinion.   

10/25/17: Shooting bears, petty offenses, and objective vs. subjective good faith

Today's decision in United States v. Wallen, --- F.3d ---, No. 16-30033 (9th Cir. 2017) is full of interesting items. 

The defendant shot and killed three grizzly cubs on his property.  He was charged with violating the Endangered Species Act.   He was convicted after trial before a magistrate judge (over his objection and request for a jury). 

On appeal, the Court rejected the defendant's claim that he was entitled to a jury.  The Court concluded his crime qualified as a petty offense -- for which there is no right to a jury trial -- because the maximum penalty is 6 months.  And the additional potential penalties (such as probation and  restitution) were not "so severe as to indicate that the legislature considered the offense serious." 

The Court further determined that, although the crime did not fit within the petty offense definition in 18 U.S.C. 19, "the federal statutory definition of 'petty offense' under § 19 holds no 'talismanic significance' when determining a defendant’s right to a jury trial." 

After addressing the jury issue, the Court turned to whether the “good faith belief” defense for a prosecution under 16 U.S.C. § 1540 is governed by a subjective, rather than an objective, standard, and is satisfied when a defendant actually, even if unreasonably, believes his actions are necessary to protect himself or others from perceived danger from a grizzly bear. 

The Court agreed with the defendant that his subjective belief controlled.  Accordingly, because the district court applied an objective standard, and the error was not harmless, the Court vacated the conviction and remanded for a new trial.  In doing so, however, it explained: 

We emphasize that, although the ultimate question is whether a defendant held a subjective good faith belief, the objective reasonableness (or unreasonableness) of a claimed belief bears directly on whether that belief was held in good faith.

                                                                            ***

In sum, we hold the “good faith belief” defense under § 1540(b)(3) is available to defendants who, in good faith, subjectively believe they or others are in danger. A factfinder “is not precluded from considering the reasonableness” of this belief “in weighing the credibility of the claim,” but that factfinder “may not substitute its own determination of objective reasonableness . . . [for] what the defendant subjectively believed.” This means that traditional aspects of a self-defense claim – such as the immediacy of the threat, whether the defendant provoked the conflict or the amount of force used,  may be considered for the purpose of determining whether a claimed belief was held in good faith. The standard is subjective, but the objective reasonableness of the defendant’s claimed belief is relevant to the factfinder’s assessment of the sincerity of that claim. 

Finally, here is a good quote for us appellate people: "The 'basic misconception of an essential element of the crime charged' generally 'compels reversal of the conviction,' whether handed down by a judge or jury."

10/17/17: Excellent cumulative error case (a must read)

In United States v. Preston, --- F.3d ---, No. 15-10521 (9th Cir. 2017), the Court vacated the defendant's convictions for aggravated sexual abuse of a child, and remanded for a new trial.

Given the number of errors identified by the Court, this case is a must read.

Here are some highlights:

1.   The Court's discussion of when and how to employ cumulative error analysis is very helpful. 

Where, however, as here, there are multiple trial errors, “‘a balkanized, issue-by-issue . . . review’ is far less effective than analyzing the overall effect of the errors in the context of the evidence introduced at trial against the defendant.” United States v. Frederick, 78 F.3d 1370, 181 (9th Cir. 1996) (quoting United States v. Wallace, 848 F.3d 1464, 1476 (9th Cir. 1988)). This is because the cumulative effect of multiple trial errors “‘can violate due process even where no single error . . . would independently warrant reversal.’” Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007) (citation omitted); see also, e.g., Thomas v. Hubbard, 273 F.3d 1164, 1181 (9th Cir. 2011). In deciding whether the combined effect of multiple errors prejudiced a defendant we ask whether the errors stand in “‘unique symmetry . . . , such that [they] amplify each other in relation to a key contested issue in the case.’” Ybarra v. McDaniel, 656 F.3d 984, 1001 (9th Cir. 2011) (quoting Parle, F.3d 505 at 933).

2.  There is also a very helpful discussion of a witness commenting on the alleged victim's truthfulness.  As part of this discussion, the Court rejected the government's argument about invited error. 

3.  There is a good discussion explaining that a lay witness may not provide general opinion testimony based on his or her experience.  

4.  The Court found error in allowing the alleged victim's brother to testify that, when he heard about the allegation, “there wasn’t any questioning my brother about what he was saying.” The Court explained, "one reasonable way of interpreting it is that Barry found 'what [his brother] was saying' to be beyond question."  Thus, "[b]ecause a reasonable juror would have understood this testimony as Barry professing his belief in the veracity of his brother’s allegations, permitting this testimony was plain error."

 

5.   The Court found plain error in allowing an agent to testify that, during the interrogation, he told the defendant he "did not believe him."  The Court held: "It was [] plainly erroneous for the district court to allow [the agent] to testify that he did not believe [the defendant's] denial of Rosenberg’s allegations."

6.  The Court found error in allowing the defendant's ex-wife to testify about his alleged post-conduct sexual fantasy:

[T]he district court abused its discretion in two ways. First . . . the district court must find that the “other act” sought to be introduced under 404(b) to prove intent is similar to the crime charged. Here, the district court found only that the age of Preston’s stepson in the photograph to which Preston masturbated (8 years old) was similar to Rosenberg’s age when Preston allegedly molested him (10 years old). This finding does not adequately explain or discuss how the act of masturbating to a picture of a boy in underwear—a non-criminal act—is similar to the crime of real-life sexual abuse of a child. 

Second, the district court abused its discretion by finding the evidence admissible under Rule 403.

[A]s this Court has recognized, in many cases, the “link between fantasy and intent is too tenuous to be probative,” as “[p]eople commonly fantasize about doing things they have no intention of actually doing.” And fantasy is even less probative of intent in cases where, as here, intent is not actually disputed—that is, where the defense is a general denial of committing the offense, rather than an admission to an act coupled with a specific denial of the requisite intent. 

7.   The Court also found numerous instances of prosecutorial conduct in commenting on the defendant's failure to testify, vouching for the victim, and misstating evidence.  One is particularly worth noting. 

The government stated in summation: “[Rosenberg] was sexually abused. He told you under oath on the stand. There’s no evidence, there’s no testimony in this case that contradicts Tim Rosenberg’s testimony.”

The Court found this improper, explaining: "where a defendant is the only possible witness who could rebut the testimony of the government witnesses, it is inappropriate for a prosecutor to point out the lack of witnesses or testimony on the other side, because this can only cause the jury to naturally look to the only other evidence there is—the defendant—and, hence, this could be a prohibited comment on the defendant’s failure to testify."

 

10/10/17: Two sentencing decisions

A couple of criminal sentencing decisions today from the Ninth. 

First, in United States v. Bonnett, --- F.3d ---, No. 15-10557 (9th Cir. 2017), the Court joins several other circuits in holding that malingering may support an obstruction of justice enhancement pursuant to U.S.S.G. § 3C1.1.

The Court also held that, when a defendant does not make a factual PSR objection, the district court does not have a Rule-32 obligation to resolve factual disputes.  

Finally, the Court found no error in applying the enhancement for distribution of child pornography for “a thing of value,” based on trading “girl stuff” for “boy stuff.”

Second, in United States v. Slade, --- F.3d ---, No. 16-30150 (9th Cir. 2017), the Court vacated the defendant's sentence, which had been enhanced for a prior crime of violence based on a Washington second-degree assault conviction, Revised Code of Washington section 9A.36.021. 

Following its recent decision in Robinson, the Court concluded section 9A.36.021 criminalizes conduct that does not meet the generic federal definition of crime of violence and is not divisible.  The Court  further determined that its prior decision in United States v. Jennen, 596 F.3d 594 (9th Cir. 2010) -- which reached a contrary conclusion on the crime of violence issue -- was no longer good law following Descamps and Mathis.