12/13/17: Categorical case worth noting

In United States v. Werle, --- F.3d ---, No. 16-30181 (9th Cir. 2017), the Court held that, because the defendant’s prior convictions for felony harassment under Washington Revised Code § 9A.46.020(2)(b)(ii) necessarily includes a “threatened use of physical force against the person of another,” it is categorically a crime of violence under § 2K2.1(a)(1) [which uses the same definition as the career offender provision, 4B1.2].

At first blush, the opinion is unremarkable. But then it turns to the discussion of mens rea.

The defendant argued that his prior conviction was not a categorical crime of violence because only negligence was required as to the element of placing the victim “in reasonable fear that the threat to kill would be carried out.”

The Court agreed that was true under Washington law, and agreed (as it must) "that a negligent application of force is insufficient to constitute a 'use of force' and therefore cannot serve as the basis for a crime of violence."

Nevertheless, if found a categorical match.  How, you ask?

[B]ecause § 4B1.2(a)(1) only requires that the state crime has as “an element . . . the threatened use of physical force.” (emphasis added). It is clear that the first element of a conviction under § 9A.46.020(2)(b)(ii)—a knowing threat of intent to kill someone—requires a sufficient mens rea, and so that element by itself may render the conviction a crime of violence. That other elements of the statute may be satisfied with a lower mens rea adds nothing to our inquiry[.]

In other words, so long as just one element of the prior requires a sufficient mens rea, it does not matter that the others require less.

Although this seems (to me) antithetical to the categorical approach, it is now the law.

The Court also rejected the defendant's argument that a threatened use of physical force must convey some prospect that the force could immediately occur.  Thus, even indeterminate threats to kill in the distant future can constitute crimes of violence.

12/12/17: Mathis does not establish a new rule of constitutional law & Federal carjacking is a crime of violence for purposes of 924(c)

In Arazola-Galea v. United States, --- F.3d ---, No. 16-73574 (9th Cir. 2017), the Court held that Mathis v. United States, 136 S. Ct. 2243 (2016), which clarified application of the categorical analysis, did not establish a new rule of constitutional law. 

Thus, the Court declined to give Mathis retroactive application, and on that basis denied the petitioner's request to file a second or successive habeas petition.

In United States v. Gutierrez, --- F.3d ---, No. 16-35583 (9th Cir. 2017), the Court held that federal carjacking (18 U.S.C. 2119), constitutes a crime of violence under the force clause of 18 U.S.C. 924. 

Although carjacking can be committed by intimidation, the Court determined, "[t]o be guilty of carjacking 'by intimidation,' the defendant must take a motor vehicle through conduct that would put an ordinary, reasonable person in fear of bodily harm, which necessarily entails the threatened use of violent physical force."

Thus, carjacking is a predicate offense for brandishing a firearm during a "crime of violence," in violation of 18 U.S.C. § 924(c)(1)(A)(ii). 

12/7/17: Huge categorical victory today

In United States v. Valdivia-Flores, --- F.3d ---, No. 15-50384 (9th Cir. 2017), the Ninth Circuit vacates the defendant's 1326 conviction finding his Washington’s drug trafficking conviction, Wash. Rev. Code § 69.50.401, was not and cannot be an aggravated felony.  In other words, the conviction could not support his deportation.  But there is much more, because the analysis -- which focuses on Washington's overbroad aiding and abetting law -- applies to all Washington crimes, and precludes reliance on the modified categorical approach.  Thus, even if the client admits possession of heroin for sale (as in this case) it does not matter.  

As explained by Davina Chen in more detail below, and bemoaned by the Court, the upshot of the this decision is that “no Washington state conviction can serve as an aggravated felony at all.”  This almost certainly applies for all other federal sentencing predicates, such as ACCA and career offender.  It also likely applies other state's convictions that have the same aiding and abetting law as Washington (not California, sadly).

We have our own Trip Johnston to thank for this huge decision.

Here is Davina's excellent summary:

NO Washington conviction can serve as an aggfel (and by extension, perhaps, a federal sentencing predicate). This is because WA aiding and abetting liability is facially broader than federal aiding and abetting.  Any WA conviction could have been obtained via accomplice liability, because WA law does not require that accomplice liability be charged and it does not require the jury be unanimous.  Ergo . . .no WA convictions match federal analogues.

You will also want to be on the lookout for any prior convictions from: -Indiana-Iowa-Massachusetts-Nebraska-Oklahoma  

So, from the top. In Duenas-Alvarez, the Supreme Court noted that all jurisdictions have abolished the distinction between principal liability and aiding abetting.  So, convictions under state law for aiding and abetting can constitute generic offenses.  For example, in Duenas-Alvarez, aiding abetting a vehicle theft could be generic theft, so long as both the definition of theft and aiding and abetting matched.  

OK, so, since in all jurisdictions, one can be convicted under an aiding and abetting theory, in all cases, we get to argue that our client COULD have been convicted as an aider and abettor.  That is, even if my client is the only named participant in a case, his conviction could have been under an aiding and abetting theory. 

Next step, what does aiding and abetting require?  In federal court and in most jurisdictions, it requires, the defendant to have INTENDED to assist in the crime.  Mere knowledge that one’s conduct will actually assist in the crime is not enough.But in Washington, and the five other jurisdictions listed above, knowledge is enough. You don’t need to intend to assist.  In the example Trip gave at oral argument, if you are driving a taxi, and someone gets in the taxi to travel to a drug deal, the taxi driver may be assisting the drug deal with knowledge, but he doesn’t intend to assist a drug deal.  He doesn’t care.  Is he required to kick the fare out? Under Washington law, apparently he is, or he could face conviction for drug dealing. So, Washington aiding and abetting liability is overbroad because it permits conviction where federal/generic law would not. Since, any conviction could be obtained under this theory of liability, all WA convictions are overbroad.   

What if it’s clear that there was no other participant?  Doesn’t matter, according to Judges O’Scannlain and Marquez.  Since WA law does not require the jury to be unanimous as to whether the conviction is based on principal or aiding and abetting, the statute of conviction is not divisible, so you never get to use the modified categorical approach to determine that the conviction was not based on aiding and abetting. And to the extent that the D cannot show a WA case where the conduct was ACTUALLLY broader than generic aiding and abetting, Judges O’Scannlain and Marquez say it doesn’t matter, because Washington law is overbroad on its face. 

12/6/17: Expert testimony on the ultimate issue

In United States v. Diaz, --- F.3d ---, No. 15-50538 (9th Cir. 2017), the Court affirmed the defendant's conviction for violating 21 U.S.C. 841 based on his running a prescription mill clinic. 

The principal issue revolved around the government's expert physician's testimony that the prescriptions were written “outside the usual course of medical practice” and “without a legitimate purpose.”

The defense argued the testimony amounted to a legal conclusion in violation of Fed. R. Evid. 702 and 704.  The Ninth held otherwise.

We hold that if the terms used by an expert witness do not have a specialized meaning in law and do not  represent an attempt to instruct the jury on the law, or how to apply the law to the facts of the case, the testimony is not an impermissible legal conclusion. See FED. R. EVID. 702(a), 704(a). 

Here, expert testimony was needed to assist the jury. Dr. Chavez’s testimony was helpful because a lay jury would not have the requisite knowledge to evaluate whether the dosage, mix, and course of narcotics prescribed by Diaz were medically appropriate for the conditions being complained of by his patients. Dr. Chavez’s opinions were based on a review of the prescriptions for individual patients, and while he employed phrases that also appear in the elements of § 841(a)(1), such as “outside the usual course of medical practice” and “legitimate medical purpose,” these phrases were used in their ordinary, everyday sense and do not “have a separate, distinct and specialized” legal significance apart from common parlance, Dr. Chavez did not substitute his judgment for the jury’s; he provided a professional opinion about whether a course of conduct comported with the standard of care prevalent in the medical community.

Be wary of the prosecution trying to use this holding in other contexts.

12/4/17: Cal H&S 11351 is divisible as to its controlled substance requirement.

In United States v. Murillo-Alvarado, --- F.3d ---, No. 14-50354 (9th Cir. 2017), the Court held that Cal H&S 11351 is divisible as to its controlled substance requirement.

This was the expected result, because the Court had already reached the same conclusion as to section 11352 in United States v. Martinez-Lopez, 864 F.3d 1034 (9th Cir. 2017) (en banc). 

The Court also concluded the government met its burden under the modified approach.  The key here is that the conviction documents included a certified copy of the guilty plea form which contained a handwritten factual basis in which Murillo-Alvarado admitted that, on May 29, 2001, he “possessed cocaine to be used for purposes of sale.”

This admission to substance, along with the other conviction documents, satisfied the Court that the defendant's plea constituted a conviction for a federal predicate.

11/29/17: Arizona robbery is a crime of violence under 4B1.2

In United States v. Molinar, --- F.3d ---, No. 15-10430 (9th Cir. 2017), a divided panel concluded that Arizona robbery (and armed robbery) is a match for generic robbery.  Thus, it is crime of violence under under section 4B1.2’s enumerated felonies clause.  The Court also determined that Arizona attempt is equivalent to generic attempt.

Of note, the Court held that its prior conclusion in United States v. Taylor, 529 F.3d 1232 (9th Cir. 2008) -- that Arizona armed robbery is a crime of violence section 4B1.2’s force clause -- is clearly irreconcilable with the Supreme Court’s decision in Johnson v. United States, 559 U.S. 133 (2010), and has therefore been effectively overruled.  But this does not help the defendant here.

11/27/17: Riley does not apply to parolees & a Clean Water Act case with lots of interesting issues including on double jeopardy.

In United States v. Johnson, --- F.3d ---, No. 16-10184 (9th Cir. 2017), the Court affirmed the defendant's conviction for felon in possession.

The defendant was on Cal. parole subject to a broad 4th waiver.  After his arrest, police searched his phone without a warrant, finding incriminating text messages. 

The Court affirmed the denial of the defendant's motion to suppress.  Distinguishing Riley and Lara, the Court held the warrantless search of the defendant’s cell phone was constitutionally reasonable, given his status as a parolee and his reduced expectation of privacy.

The Court also rejected the defendant's argument about prolonged seizure of his phone. 

Next, the Court considered whether the consent to search (given by the principal tenant) was valid. The Ninth considers five factors to assess whether consent was voluntary: (1) whether defendant was in custody; (2) whether the arresting officers have their guns drawn; (3) whether Miranda warnings have been given; (4) whether the defendant was told he has a right not to consent; and (5) whether defendant was told a search warrant could be obtained.

The Court affirmed the district court's finding of valid consent. But there is a helpful reminder: "The rule is that failing to object to police entry, when no request for permission to enter was made, does not constitute effective consent."

Other than the Fourth Amendment issues, the Court rejected the defendant's hearsay / Confrontation Clause argument.  It found the subject statement was testimonial, but not offered for its truth.

The Court also considered, and rejected, the defendant's argument about expert ballistic testimony.

Finally, on the government's cross appeal, the Court vacated the defendant's sentence, finding the district court erred in concluding his prior Robbery (PC 211) conviction did not qualify as a crime-of-violence, career-offender predicate.

Moving on.

In United States v. Robertson, --- F.3d ---, No. 16-30178 (9th Cir. 2017), the Court affirmed the defendant's convictions for violating the Clean Water Act (CWA).

Much of the appeal turned on whether the dumping at issue fell within the CWA.  That, in turn, required the Ninth to engage in a lengthy discussion of how to deal with fractured (split) Supreme Court opinions, and when intervening case law is clearly irreconcilable with prior precedent under Miller v. Gamie.

Additionally, the Court joined its sister Circuits in holding a criminal defendant cannot challenge the sufficiency of the evidence at a previous trial following conviction at a subsequent trial.  Thus, the Court rejected the defendant’s argument that the district court should have granted his motion to acquit after the jury deadlocked at his first trial.

There was also discussion, and rejection, of the defendant's challenges to the government's expert.