4/26/19: Ex post facto sentencing decision

In United States v. Wijegoonaratna, --- F.3d ---, No. 17-50255 (9th Cir. 2019), the Court affirmed the defendant's convictions, but vacated (in part) his sentence.

The defendant was convicted of seven counts of health care fraud in violation of 18 U.S.C. § 1347.  He raised numerous challenges.  The Court rejected most, but found an ex post facto violation based on the district court's use of the 2016 Guidelines for offenses occurring before it was effective.

First, the Court reviewed de novo: "Because Wijegoonaratna did not raise the ex post facto challenge at sentencing, we would typically review his challenge for plain error. Depue, 912 F.3d at 1232–34. However, we have held that we are not limited to plain error review where the appeal presents a “pure question of law” and there is no prejudice to the opposing party. The question presented is purely legal: Does applying the revised Guidelines Manual to all of Wijegoonaratna’s counts violate the ex post facto clause? And we have previously held that “the government is not prejudiced by our requirement that the district court correctly calculate the Guidelines sentencing range before it imposes a sentence, even though [the defendant] did not raise the issue below.”

Second, the Court explained:  "Using a Guidelines Manual revised after an offense occurred to calculate a Guidelines range for that offense violates the ex post facto clause if the revision leads to a higher punishment. For this reason, a defendant must generally be sentenced under the Guidelines Manual that was in effect when the offense occurred. Where different counts involve different conduct occurring under different Guidelines Manuals, 'different Guidelines ranges for those counts are appropriate.' But where the conduct is a 'continuing offense' spanning a period before and after a Guidelines Manual revision, the later Guidelines Manual applies without violating the ex post facto clause.

Third, the Court held "the government’s decision to charge Wijegoonaratna with multiple counts has consequences. The government could have charged Wijegoonaratna’s offense as a continuing offense, but it chose not to do so. For that reason, the ex post facto rule that applies to continuing offenses—just like the statute of limitations rule for continuing offenses—does not apply here, where the health care fraud was charged as multiple counts. Instead, the district court was required to calculate and apply the guideline ranges from the Guidelines Manual in effect at the time of each count. It did not."

Finally, the helpful footnotes:

"Contrary to the government’s contention, where a defendant fails to object, the issue is forfeited, not waived."

"We consider Wijegoonaratna’s challenge even though his sentence was below both the 2010 and 2016 Guidelines ranges because we must remand if the district court failed to calculate the proper range. "

4/24/19: case on drug quantity findings for resentencing

In United States v. Rodriguez, --- F.3d ---, No. 17-10233 (9th Cir. 2019), the Ninth Circuit addressed drug quantity findings in the context of proceedings under 18 U.S.C. § 3582(c)(2) -- for reductions of sentence in light of amendments to the Sentencing Guidelines.

The decision focuses on how the resentencing court should treat previously undisputed drug quantities from the original PSR. The Court clarified that, under United States v. Mercado-Moreno, 869 F.3d 942 (9th Cir. 2017), drug quantities in a PSR, without an explicit and specific drug quantity finding by the original sentencing judge, are not binding in § 3582(c)(2) proceedings.

Specifically: "Mercado-Moreno instructs that drug quantities alluded to in the original sentencing are binding in a § 3582(c)(2) proceeding only if (1) the sentencing judge made a specific finding of drug quantity or (2) the defendant admitted to a specific quantity. Id. at 957. A sentencing judge’s generic adoption of a PSR (or an adoption of its justifications) does not fall into either category. We therefore decline, as Mercado-Moreno instructs, to transform statements of generic adoption of a PSR into binding, specific determinations as to particular drug quantities."

Becuase neither situation applied, the proper course was for the district court to engage in supplemental fact-finding as to drug quantity to determine whether the defendant was eligible for a sentence reduction under § 3582(c)(2).  The Court remanded for that purpose.

4/22/19: Good cause for newly raised suppression arguments

In United States v. Guerrero, --- F.3d ---, No. 17-50384 (9th Cir. 2019), the Court held that the good cause requirement of Fed R. Crim. P 12(c)(3) -- and not the plain error standard -- continues to apply to suppression arguments raised for the first time on appeal.

Because the defendant cannot meet this standard he is out of luck. 

Of note, is the new argument the defendant tried to raise: "He notes that California law requires a driver to signal before making a turn only if another vehicle on the road “may be affected by the movement.” Cal. Vehicle Code § 22107; see People v. Carmona, 124 Cal. Rptr. 3d 819, 823–25 (Ct. App. 2011). He asserts that the government introduced insufficient evidence that the driver’s alleged failure to signal could have impacted another car on the road. See United States v. Caseres, 533 F.3d 1064, 1069 (9th Cir. 2008). Thus, he concludes, even if the driver did not signal before turning, the officers lacked a lawful basis for making the stop." 

4/12/19: Another plane case - this time about mens rea

In United States v. Price, --- F.3d ---, No. 15-50556 (9th Cir. 2019), the Court affirmed the defendant's conviction for knowingly engaging in sexual contact with another person without that other person’s permission on an international flight, in violation of 18 U.S.C. § 2244(b).

The main issue on appeal centered on the statute's knowledge requirement: "Whoever, in the special maritime and territorial jurisdiction of the United States . . . knowingly engages in sexual contact with another person without that other person’s permission shall be fined under this title, imprisoned not more than two years, or both."

The defendant argued the government was required to prove beyond a reasonable doubt that he subjectively knew that his victim did not consent to the sexual contact.  The Ninth Circuit disagreed:

We reject Price’s reading of the statute as contrary to its text, the structure of the statutory scheme and its very purpose in penalizing those who sexually prey upon victims on the seas or in the air within federal jurisdiction. Congress’s purpose in enacting the Sexual Abuse Act of 1986 was to criminalize sexual contact by focusing on the defendant’s conduct. If the government were required to prove that the defendant subjectively knew he lacked consent, as Price urges here, every accused sexual predator could defend his admitted sexual contact in the face of no objective sign of permission by asserting a supposed subjective belief that the victim was “enjoying herself,” a result directly contrary to the purpose of the 1986 Act.

The Court held the government must prove the defendant knew he or she was engaging in sexual contact with the victim, and that the victim did not consent.  But it did not need to prove the defendant subjectively knew about the lack of consent.

If you have a case about whether a mens rea term applies to different statutory elements, you should read this case.

4/11/19: Venue for inflight crime

In United States v. Lozoya, --- F.3d ---, No. 17-50336 (9th Cir. 2019), the Court vacated the defendant's misdemeanor conviction for assault on a flight from Minneapolis to Los Angeles.

The Court agreed with the defendant that venue was not proper in the Central District of Cal.  Although that is where the plane landed, it was clear the assault took place before entering the airspace over the CDCA. 

The opinion reminds us that “[i]f a defect in venue is clear on the face of the indictment, a defendant’s objection must be raised before the government has completed its case.” However, “if the venue defect is not evident on the face of the indictment, a defendant may challenge venue in a motion for acquittal at the close of the government’s case.”

Additionally, the panel explains that just because an offense takes place while in transit, it does not mean venue is proper where the defendant is arrested. 

If you have a venue issue, or are just curious about venue, this is a good read.  There is also a partial dissent.

4/9/19: Case about California Wobblers

In United States v. Johnson, --- F.3d ---, No. 18-10016 (9th Cir. 2019), the Court affirmed the defendant's sentence for being a felon in possession of a firearm. 

The district court applied a crime-of-violence enhancement pursuant to U.S.S.G. § 2K2.1(a)(4)(A) based on the defendant's prior conviction for assault with a deadly weapon in violation of Calif. Penal Code § 245(a)(1).

The defendant argued this was error because his 245 conviction was a wobbler for which he received a six-month sentence, and thus the conviction was actually a misdemeanor under California law. The Court rejected this argument on several grounds. 

First, it held that because the defendant did not object to the PSR's characterization of the offense as a felony, the district court was entitled to find the conviction was a felony:

Pursuant to Rule 32(i)(3)(A), the district court “may accept any undisputed portion of the presentence report as a finding of fact.” The PSR clearly characterized Johnson’s assault with-a-deadly-weapon conviction as a felony. As discussed above, not only did Johnson fail to challenge that description, his counsel affirmatively represented to the court that he had two prior felony convictions, including the CPC § 245(a)(1) conviction at issue here. Additionally, Johnson and his attorney confirmed, in open court, the factual accuracy of the PSR. Because Johnson did not dispute that he had a felony conviction, the district court was entitled, under Rule 32, to accept as a fact the PSR’s characterization of his offense of conviction. Thus, pursuant to Rule 32, Johnson’s concessions in the district court foreclose his argument that his conviction was not a felony.

Second, reviewing de novo, the Court concluded the conviction documents failed to show the conviction was a misdemeanor. 

Finally, the Court held that Moncrieffe v. Holder, 569 U.S. 184 (2013), did not alter the conclusion that a felony conviction under § 245(a)(1) is a crime of violence. In its view, Moncrieffe’s upshot – that a state felony conviction for conduct potentially subject to both felony and misdemeanor punishment under the Controlled Substance Act cannot be a predicate offense under the categorical approach – is inapplicable to a § 245(a)(1) conviction.  This is because a wobbler conviction is punishable as a felony, even if the court later exercises its discretion to reduce the offense to a misdemeanor.

3/28/19: Big Fourth Amendment Decision

Today's decision in United States v. Artis, --- F.3d ---, No. 18-10246 (9th Cir. 2018), addresses multiple, important Fourth Amendment issues.  It is a must read.

The relevant factual underpinning is that a federal agent applied to a California state judge for two search warrants and then the federal agent executed the searches.

The searches resulted in federal charges.  The defendants moved to suppress arguing (1) the warrants were invalid because they were executed by officials not authorized to execute warrants under California law; and (2) the warrants were not supported by probable cause.

The district court granted both motions based on a lack of probable cause.  The government appealed.

The Ninth Circuit affirmed as to one of the warrants but reversed as to the other.

Beginning with the issue of the state warrant being executed by federal agent, the Court held, "the identity of the executing officers—federal agents versus peace officers—does not implicate any interest protected by the Fourth Amendment. No greater intrusion upon protected privacy or property interests occurred by virtue of the fact that the searches were conducted by federal agents as opposed to, say, city police officers."  The Court explained,:

California law requires search warrants to be executed by “peace officers,” but federal agents may assist a peace officer in executing a search warrant, provided the federal agent is acting “in aid of the officer on his requiring it, he being present and acting in its execution.” Cal. Penal Code § 1530. As the defendants argue, it seems doubtful that this requirement was satisfied here, although California courts do not appear to have addressed how strictly this provision should be construed when federal agents execute a search warrant as members of a joint federal-state task force that includes peace officers.

We find it unnecessary to decide whether federal agents violated California law by executing the Artis and Hopkins warrants. Even if such a violation occurred, the warrants would still be valid under the Fourth Amendment. An otherwise properly issued search warrant is not rendered void for Fourth Amendment purposes merely because it was executed by law enforcement officers who lacked warrant-executing authority under state law. 

The Court further found no violation of Rule 41, because the searches were not “federal in character.”

As to probable cause, the Court reminds us that, when a warrant application relies on illegally obtained information to establish probable cause, the reviewing court must disregard the information.

The Court then took this rule one step further: "Having excised evidence from the supporting affidavit, we do not defer, as we normally would, to the issuing magistrate’s determination that probable cause existed. In that scenario, we have nothing to which we could defer, as the magistrate made no determination about whether probable cause exists on the set of facts now before us. Instead, we must 'determine on our own whether the remaining portions of the affidavit support a finding of probable cause.'"

Finding a lack of probable cause in one of the affidavits, the Court discussed the good faith exception:

[W]e have held that the good-faith exception may not be invoked when “the search warrant was issued in part on the basis of evidence obtained from an illegal search.” United States v. Wanless, 882 F.2d 1459, 1466–67 (9th Cir. 1989); see also United States v. Vasey, 834 F.2d 782, 789 (9th Cir. 1987). That rule would foreclose the government’s reliance on the good-faith exception here. We acknowledge that the Supreme Court’s precedent on application of the good-faith exception has shifted somewhat since we decided Vasey and Wanless. When those cases were decided, the good-faith exception had been held to apply only when the police acted in reasonable reliance on mistakes made by others, such as the magistrate who issued the defective warrant in Leon. It was not yet clear whether the good-faith exception would apply when the police acted in reliance on their own mistakes. Thus, in rejecting application of the good-faith exception in Vasey, we stressed that “[t]he constitutional error was made by the officer in this case, not by the magistrate as in Leon.” 834 F.2d at 789. The good-faith exception could not apply to the fruit of that constitutional violation, including evidence seized under the resulting warrant.  

The Supreme Court has since held that the good-faith exception can apply even when the police are responsible for the mistake that led to an unlawful search or seizure. In Herring v. United States, 555 U.S. 135 (2009), the Court applied the good-faith exception to uphold the admission of evidence seized during a concededly unlawful arrest, even though the arrest occurred because law enforcement officials negligently failed to remove a recalled warrant from their database. Id. at 138, 147–48. The Court held that, to justify suppression as a remedy for a Fourth Amendment violation, “police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” Id. at 144. The “isolated negligence” at issue in Herring, the Court concluded, did not meet that standard. Id. at 137 

In light of Herring, we can no longer declare the good-faith exception categorically inapplicable whenever a search warrant is issued on the basis of evidence illegally obtained as a result of constitutional errors by the police. We must instead determine whether the police misconduct that led to discovery of the illegally obtained evidence is itself subject to the good-faith exception. If it is, suppression of the evidence seized pursuant to the warrant will not be justified. But if the police misconduct is not protected by the good-faith exception, suppression is the appropriate remedy. The misconduct will by definition be “sufficiently deliberate” that it can be deterred through application of the exclusionary rule, and “sufficiently culpable” to warrant exclusion as a remedy. Id. at 144. And because the illegally obtained evidence will necessarily have been decisive in establishing probable cause (otherwise there would be no need to resort to the good-faith exception), evidence discovered pursuant to the warrant will be the fruit of that earlier illegality and subject to suppression for that reason. See Wong Sun v. United States, 371 U.S. 471, 485 (1963).

Under this new standard, as to one of the warrants, the Court found the good faith exception did not apply, and affirmed suppression.

As noted, the Court reversed as to the other warrant, because it was supported by probable cause.