In Class v. United States, --- U.S. ---, No. 16-424 (2018), the question was whether a guilty plea by itself bars a
federal criminal defendant from challenging the constitutionality
of the statute of conviction on direct appeal.
The Court held it did not. Rather, because the issues raised "challenge the Government’s
power to criminalize Class’ (admitted) conduct" and "thereby call into question the Government’s power to 'constitutionally prosecute' him," Class could pursue those claims on appeal, despite his guilty plea.
It is important to note, however, the plea agreement in the case did not contain an express waiver of constitutional claims.
Wednesday, February 21, 2018
Tuesday, February 20, 2018
2/20/18: Interesting case on when a federal sentence begins to run for a defendant initially in state custody
In Johnson v. Gill, --- F.3d ---, No. 15-16400 (9th Cir. 2018), a divided panel affirmed the district court’s denial of a 28 U.S.C. § 2241 habeas corpus petition
challenging the Bureau of Prisons’ determination of when the petitioner's federal sentence commenced.
While serving his state sentence, the petitioner was twice erroneously turned over to federal authorities. The state credited the time the petitioner spent in federal custody against his state sentence. Once his state sentence was finally complete, the USMS took him into federal custody.
The BOP concluded the petitioner's federal sentence commenced, only after the USMS took him into custody the final time.
The majority of the panel agreed. Here are the key quotes.
under § 3585(a), “[a] sentence to a term of imprisonment commences on the date” that the federal government has primary jurisdiction over a defendant who is “received in custody awaiting transportation to” the official detention facility.
It is well established that if a sovereign takes a defendant into its custody before another sovereign has done so, then the arresting sovereign establishes its primary jurisdiction and may give effect to its sentence before other sovereigns may do so.
A sovereign’s priority terminates when the sentence expires, charges are dismissed, or the prisoner is allowed to go free.
The more difficult situation arises when one sovereign transfers a defendant to another sovereign. Such a case requires an exercise of comity between the sovereigns, and turns on whether the state with primary jurisdiction intended to surrender its priority upon transfer or merely transferred temporary control of the defendant to the federal government.
Because a state’s transfer of temporary control of the defendant “extends no further than it is intended to extend,” and a state that mistakenly transferred a prisoner to the federal government lacked the intent to surrender primary jurisdiction, such a mistaken transfer does not constitute a relinquishment of primary jurisdiction. If the state retains primary jurisdiction, the federal sentence does not commence pursuant to § 3585. Therefore, a prisoner’s federal sentence does not commence when the state mistakenly transfers a prisoner to the federal government.
Although I personally think the dissent had the better argument, this is the law for now.
Monday, February 5, 2018
2/5/18: Good jury waiver case
In United States v. Laney, --- F.3d ---, No. 15-10563 (9th Cir. 2018), the defendants did not personally sign the jury waiver, prior to trial. As a result, the Ninth Circuit vacated their convictions.
The Court held, "that the proper practice under Rule 23(a) is for the defendant to personally execute the written waiver; a written stipulation signed by defense counsel alone—like the stipulations at issue in this case—will not raise a presumption of validity."
The Court clarified, however, "the absence of a defendant’s signature will not constitute reversible error if the record otherwise shows that the defendant’s waiver was voluntary, knowing, and intelligent."
But becuase the record did not satisfy that standard, and because an invalid jury waiver is structural error, the Court sent the case back for a new trial.
The Court held, "that the proper practice under Rule 23(a) is for the defendant to personally execute the written waiver; a written stipulation signed by defense counsel alone—like the stipulations at issue in this case—will not raise a presumption of validity."
The Court clarified, however, "the absence of a defendant’s signature will not constitute reversible error if the record otherwise shows that the defendant’s waiver was voluntary, knowing, and intelligent."
But becuase the record did not satisfy that standard, and because an invalid jury waiver is structural error, the Court sent the case back for a new trial.
Thursday, February 1, 2018
1/2/18: Helpful ACCA decision
In United States v. Walton, --- F.3d ---, No. 15-50358 (9th Cir. 2018), the panel vacated the defendant's sentence, imposed under ACCA, because his prior convictions for robbery in Alabama and California did not qualify as "violent felony" predicates.
The Court bases is conclusion on a straightforward categorical approach in the context of the Supreme Court's requirement under Johnson that the “physical force” required under ACCA’s force clause must be “violent force” or “force capable of causing physical pain or injury to another person.”
Because neither the Alabama nor California priors required that level of force, they do not qualify under ACCA.
The Court bases is conclusion on a straightforward categorical approach in the context of the Supreme Court's requirement under Johnson that the “physical force” required under ACCA’s force clause must be “violent force” or “force capable of causing physical pain or injury to another person.”
Because neither the Alabama nor California priors required that level of force, they do not qualify under ACCA.
Tuesday, January 30, 2018
1/30/18: Good decision on "reckless disregard" & material witness deposition testimony
In United States v. Rodriguez, --- F.3d ---, No. 16-10017 (9th Cir. 2018), the Court vacated the defendant's alien smuggling conviction.
The basic facts were that the defendant picked up an undocumented person inside the United States. Much of the case turned on whether she should have known he was not the person pictured on the border crossing card in his possession.
There is lots of good stuff in the opinion.
The main issue was the district court's erroneous instruction on reckless disregard.
First, the Court rejected the government's plain error argument: "We have held that an error is preserved when the substance of the objection was 'patently' clear, even if defense counsel did not use the precise terms used on appeal."
Second, the Court rejected "the government’s semantic gymnastics, which somehow lead it to conclude that an instruction requiring the defendant to have 'knowledge of facts which, if considered and weighed in a reasonable manner, indicate[d] a substantial and unjustifiable risk,' required that a defendant knew of a substantial and unjustifiable risk that his conduct was criminal."
To this end, the Court explained, "that criminal recklessness generally requires . . . . the defendant both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.”
The Court further explained, "[t]he instruction in Rodriguez’s case should have stated something along the lines of the following, with italics representing additions to the wording actually used: The defendant acted with reckless disregard if the defendant knew of facts which, if considered and weighed in a reasonable manner, indicate a substantial and unjustifiable risk that the alleged alien was in fact an alien and was in the United States unlawfully, and the defendant knew of that risk."
The Court also included a helpful discussion on harmless error review, noting that the government waived the claim: "[a]nother reason we should not conduct a harmlessness review, when the government has waived the issue, is that “[g]eneral verdicts . . . which permit a jury to convict based on different possible theories—without specifying the theory that forms the basis of the verdict—can complicate this analysis.”
Finally, on the issue n of the material witness's videotaped testimony, the Court held its admission violated the defendant’s Confrontation Clause rights because the government made an insufficient showing that the passenger was unavailable, where the government’s efforts to secure his presence were not reasonable.
The basic facts were that the defendant picked up an undocumented person inside the United States. Much of the case turned on whether she should have known he was not the person pictured on the border crossing card in his possession.
There is lots of good stuff in the opinion.
The main issue was the district court's erroneous instruction on reckless disregard.
First, the Court rejected the government's plain error argument: "We have held that an error is preserved when the substance of the objection was 'patently' clear, even if defense counsel did not use the precise terms used on appeal."
Second, the Court rejected "the government’s semantic gymnastics, which somehow lead it to conclude that an instruction requiring the defendant to have 'knowledge of facts which, if considered and weighed in a reasonable manner, indicate[d] a substantial and unjustifiable risk,' required that a defendant knew of a substantial and unjustifiable risk that his conduct was criminal."
To this end, the Court explained, "that criminal recklessness generally requires . . . . the defendant both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.”
The Court further explained, "[t]he instruction in Rodriguez’s case should have stated something along the lines of the following, with italics representing additions to the wording actually used: The defendant acted with reckless disregard if the defendant knew of facts which, if considered and weighed in a reasonable manner, indicate a substantial and unjustifiable risk that the alleged alien was in fact an alien and was in the United States unlawfully, and the defendant knew of that risk."
The Court also included a helpful discussion on harmless error review, noting that the government waived the claim: "[a]nother reason we should not conduct a harmlessness review, when the government has waived the issue, is that “[g]eneral verdicts . . . which permit a jury to convict based on different possible theories—without specifying the theory that forms the basis of the verdict—can complicate this analysis.”
Finally, on the issue n of the material witness's videotaped testimony, the Court held its admission violated the defendant’s Confrontation Clause rights because the government made an insufficient showing that the passenger was unavailable, where the government’s efforts to secure his presence were not reasonable.
Monday, January 29, 2018
1/29/18: California carjacking is not a crime of violence under 8 U.S.C. § 1101(a)(43)(F)
Happy Monday,
Today brings a helpful decision from the immigration world. In Solorio-Ruiz v. Sessions, --- F.3d ---, No. 16-73085 (9th Cir. 2018), the Court held that California carjacking is not a crime of violence under 8 U.S.C. § 1101(a)(43)(F), and its prior holding to the contrary in Nieves-Medrano is no longer good law after Johnson.
Basically, under Johnson v. United States, 559 U.S. 133, 140 (2010), to qualify as a crime of violence, the offense must require not just physical force, but “violent force—that is, force capable of causing physical pain or injury to another person.”
Under California law, however, the carjacking statute does not require the violent force that Johnson demands, and thus the statute is not a crime of violence. (Johnson applies because the aggravated-felony definition in 8 U.S.C. § 1101(a)(43)(F) incorporates the “crime of violence” definition in 18 U.S.C. § 16(a)).
The Court further noted an open question as to whether California carjacking is a theft offense under 8 U.S.C. § 1101(a)(43)(G), and remanded the case for the BIA to consider that issue.
Finally, the opinion also commented that it is unclear whether Becerril-Lopez (which held PC 211 was a COV) remains good law after Johnson.
Today brings a helpful decision from the immigration world. In Solorio-Ruiz v. Sessions, --- F.3d ---, No. 16-73085 (9th Cir. 2018), the Court held that California carjacking is not a crime of violence under 8 U.S.C. § 1101(a)(43)(F), and its prior holding to the contrary in Nieves-Medrano is no longer good law after Johnson.
Basically, under Johnson v. United States, 559 U.S. 133, 140 (2010), to qualify as a crime of violence, the offense must require not just physical force, but “violent force—that is, force capable of causing physical pain or injury to another person.”
Under California law, however, the carjacking statute does not require the violent force that Johnson demands, and thus the statute is not a crime of violence. (Johnson applies because the aggravated-felony definition in 8 U.S.C. § 1101(a)(43)(F) incorporates the “crime of violence” definition in 18 U.S.C. § 16(a)).
The Court further noted an open question as to whether California carjacking is a theft offense under 8 U.S.C. § 1101(a)(43)(G), and remanded the case for the BIA to consider that issue.
Finally, the opinion also commented that it is unclear whether Becerril-Lopez (which held PC 211 was a COV) remains good law after Johnson.
Monday, January 22, 2018
1/22/18: Very good third-party culpability case
In United States v. Urias Espinoza, --- F.3d ---, No. 16-50033 (9th Cir. 2018), the Court vacated the defendant's conviction for importation of
methamphetamine.
The Court held that the district court abused its discretion by applying an incorrect legal standard in excluding evidence of third-party culpability. To that end, the Court reiterated: “[f]undamental standards of relevancy, subject to the discretion of the court to exclude cumulative evidence and to insure orderly presentation of a case, require the admission of testimony which tends to prove that a person other than the defendant committed the crime that is charged.”
Thus, "all evidence of third-party culpability that is relevant is admissible, unless barred by another evidentiary rule." The district court, however, excluded otherwise relevant third-part evidence because it was not "coupled with substantial evidence tending to directly connect that person with the actual commission of the offense." Because this was the wrong standard, the district court necessarily abused its discretion.
There is a very helpful discussion on admitting conviction records of allegedly guilty third parties. The Court held such documents should not be excluded under Rule 404(b) because they "were relevant to establishing the [third] knowledge and ability."
The Court, however, "caution[ed] that our ruling that the conviction documents were admissible here is not transferable to a situation in which the government seeks to introduce similar evidence with respect to a defendant’s prior crimes under Rule 404(b). This is because “the standard of admissibility when a criminal defendant offers similar acts evidence as a shield need not be as restrictive as when a prosecutor uses such evidence as a sword.”
The Court noted, "[w]here, as here, the evidence is not introduced against a defendant, but rather is introduced by a defendant, the same protective concerns are not implicated."
The Court further explained, "[t]hat the defense’s theory may be speculative is not a valid reason to exclude evidence of third-party culpability."
In other news, the Court issued a new opinion in United States v. Kleinman, --- F.3d ---, No. 14-50585 (9th Cir. 2018). The new opinion reaches the same result as before (see below for my prior summary) but amends the discussion of jury nullification instructions.
----
In United States v. Kleinman, --- F.3d ---, No. 14-50585 (9th Cir. 2017), the Court rejected the defendant's myriad arguments, and affirmed his convictions for for conspiracy to distribute and possess marijuana, distribution of marijuana, maintaining a drug-involved premises, and conspiracy to commit money laundering. The Court also affirmed his 211-month sentence.
The Court held that the district court abused its discretion by applying an incorrect legal standard in excluding evidence of third-party culpability. To that end, the Court reiterated: “[f]undamental standards of relevancy, subject to the discretion of the court to exclude cumulative evidence and to insure orderly presentation of a case, require the admission of testimony which tends to prove that a person other than the defendant committed the crime that is charged.”
Thus, "all evidence of third-party culpability that is relevant is admissible, unless barred by another evidentiary rule." The district court, however, excluded otherwise relevant third-part evidence because it was not "coupled with substantial evidence tending to directly connect that person with the actual commission of the offense." Because this was the wrong standard, the district court necessarily abused its discretion.
There is a very helpful discussion on admitting conviction records of allegedly guilty third parties. The Court held such documents should not be excluded under Rule 404(b) because they "were relevant to establishing the [third] knowledge and ability."
The Court, however, "caution[ed] that our ruling that the conviction documents were admissible here is not transferable to a situation in which the government seeks to introduce similar evidence with respect to a defendant’s prior crimes under Rule 404(b). This is because “the standard of admissibility when a criminal defendant offers similar acts evidence as a shield need not be as restrictive as when a prosecutor uses such evidence as a sword.”
The Court noted, "[w]here, as here, the evidence is not introduced against a defendant, but rather is introduced by a defendant, the same protective concerns are not implicated."
The Court further explained, "[t]hat the defense’s theory may be speculative is not a valid reason to exclude evidence of third-party culpability."
In other news, the Court issued a new opinion in United States v. Kleinman, --- F.3d ---, No. 14-50585 (9th Cir. 2018). The new opinion reaches the same result as before (see below for my prior summary) but amends the discussion of jury nullification instructions.
----
In United States v. Kleinman, --- F.3d ---, No. 14-50585 (9th Cir. 2017), the Court rejected the defendant's myriad arguments, and affirmed his convictions for for conspiracy to distribute and possess marijuana, distribution of marijuana, maintaining a drug-involved premises, and conspiracy to commit money laundering. The Court also affirmed his 211-month sentence.
This case started as a California prosecution of defendants who ran several marijuana collectives in L.A. After the case was dismissed in state court, the feds picked up ball. One defendant went to trial. It did not end well.
On appeal, he challenged the prosecution, arguing the congressional prohibition on using federal funds to prosecute state medical marijuana operations should apply to his case.
Although the Court agreed the prohibition applied to the case, it did not help the defendant, because it only prohibited the expenditure of DOJ funds in connection with a specific charge involving conduct that is fully compliant with state laws regarding medical marijuana. Here, not all the charges qualified. And it did not require a court to vacate convictions that were obtained before the rider took effect (the circumstance here).
Of note, there is a relatively helpful discussion on jury instructions after a defendant makes a nullification argument. The Court held that the district court erred by instructing the jury that “[t]here is no such thing as valid jury nullification,” and that it “would violate [its] oath and the law if [it] willfully brought a verdict contrary to the law given to [it] in this case.” But the error was harmless.
There are other issues too. If you have a medical marijuana case, this decision is a must read.
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