5/30/23: Two criminal decisions today

 In United States v. Walker, --- F.4th ---, Nos. 21-10364, 21-10365 (9th Cir. 2024), the Court affirmed Tommy Walker’s conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and the revocation of his supervised release in a prior case.

The Court's introduction does a good job of summarizing the relevant points.  Here it is: 

On February 20, 2020, Tommy Walker was indicted for possessing a Jimenez Arms .380 semiautomatic handgun in violation of 18 U.S.C. § 922(g), the felon in possession of a firearm statute. He was not tried until August 30, 2021— 557 days after his indictment—largely because of the COVID-19 pandemic. Over Walker’s objection, the district court excluded much of this time from Walker’s Speedy Trial Act calculation using the “ends of justice” provision of the Act, 18 U.S.C. § 3161(h)(7)(A), and, as a result, denied Walker’s Sixth Amendment and Speedy Trial Act motions to dismiss his indictment. 

At trial, the district court rejected Walker’s request for a jury instruction requiring the jury to find that he knew that the handgun he possessed had traveled in interstate commerce. Jurors were instead instructed that they needed to find beyond a reasonable doubt that: (1) Walker knowingly possessed the Jimenez Arms handgun; (2) this particular Jimenez Arms handgun had previously traveled in interstate or foreign commerce; (3) Walker had at least one prior conviction for an offense punishable by more than one year in prison; and (4) Walker knew that he had at least one such felony conviction. 

Walker timely appeals both the speedy-trial and jury instruction issues. The district court properly excluded time under the ends of justice provision of the Speedy Trial Act, which gives effect to the Sixth Amendment right to a speedy and public trial. In United States v. Olsen, 21 F.4th 1036, 1046 (9th Cir. 2022), we outlined non-exhaustive factors that are relevant in deciding whether continuances caused by the COVID-19 pandemic should be granted under the Speedy Trial Act’s ends of justice provision. The Olsen factors support the district court’s exclusion of time. Walker’s Sixth Amendment claim also fails. 

The district court also properly denied Walker’s requested jury instruction. In United States v. Stone, we held that the interstate commerce element of 18 U.S.C. § 922(g) was “purely jurisdictional” and does not contain a mens rea requirement. 706 F.3d 1145, 1146–47 (9th Cir. 2013). The Supreme Court’s decision in Rehaif v. United States, 139 S. Ct. 2191 (2019), does not overrule Stone, and Stone is not “clearly irreconcilable” with Rehaif. See Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc). Accordingly, we affirm Walker’s conviction.

Next, in United States v. Boam, --- F.4th ---, No. 21-30272 (9th Cir. 2023), the Court affirmed Tel James Boam’s convictions for attempted sexual exploitation of a minor under 18 U.S.C. § 2251(a) and possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B).

The convictions arose from Boam secretly recording his stepdaughter in the shower.  

"The first issue on appeal centers on whether there was sufficient evidence to support Boam’s convictions for attempting to 'use' T.A. in a way that violates § 2251(a). Viewed in the light most favorable to the government, the evidence presented at trial showed that Boam put a secret camera in his bathroom with the intent of filming T.A. when she was naked and showering, and that Boam instructed T.A. to shower in the bathroom with the camera. Under our caselaw, this evidence is sufficient to support a finding that Boam attempted to 'use' T.A. in violation of § 2251(a)."

"Boam next argues that there was insufficient evidence from which a reasonable jury could conclude that the videos meet the statutory requirement of 'sexually explicit conduct.' Under both statutes of conviction, 'sexually explicit conduct' is defined, in relevant part, as a “lascivious exhibition” of a person’s “genitals” or “pubic area.” 18 U.S.C. § 2256(2)(A)(v). Boam mainly contends that the videos are not lascivious exhibitions of T.A.’s genitals or pubic area because the videos are 'strictly hygienic' and 'not sexual in nature.' We disagree. Based on our review of the videos, we conclude that the district court did not clearly err in finding that the videos reasonably fell within the definition of sexually explicit conduct. See Wiegand, 812 F.2d at 1244. We therefore affirm the district court’s decision that sufficient evidence existed for a rational jury to find beyond a reasonable doubt."

5/22/23: Case on the Speedy Trial Act

In United States v. Orozco-Barron, --- F.4th --- No. 21-50298 (9th Cir. 2023), a divided panel held that the district court, in denying Orozco-Barron’s motion to dismiss his information for violations of the Speedy Trial Act, did not clearly err in excluding periods of delay resulting from ends of justice continuances granted due to events caused by the global COVID-19 pandemic.

This decision follows, and relies heavily on, United States v. Olsen, 21 F.4th 1036 (9th Cir. 2022).  The Court focused much of its analysis on the limitations on jury trials in effect because of COVID.  

The dissent argued that the district court was required to make case-specific findings before excluding time on the STA clock, which it did not do.

5/22/23: 1326 remains constitutional

In United States v. Carrillo-Lopez, --- F.4th --- (9th Cir. 2023), the Court reversed the district court’s order granting Carrillo-Lopez’s motion to dismiss the indictment on the ground that § 1326 violates the equal protection guarantee of the Fifth Amendment and is therefore facially invalid.

The opinion is long on historical evidence and discusses the applicable equal protection test in detail.  The conclusion below provides a good summary: 

We hold that the district court clearly erred in its finding that Congress’s enactment of § 1326 was motivated in part by the purpose of discriminating against Mexicans or other Central and South Americans. The strong “presumption of good faith” on the part of the 1952 Congress is central to our analysis. Rather than applying this presumption, the district court construed evidence in a light unfavorable to Congress, including finding that evidence unrelated to § 1326 indicated that Congress enacted § 1326 due to discriminatory animus against Mexicans and other Central and South Americans. The district court also erred in finding that Congress’s failure “to repudiate the racial animus clearly present in 1929” was indicative of Congress’s discriminatory motive in enacting the INA. 

We conclude that Carrillo-Lopez did not meet his burden to prove that Congress enacted § 1326 because of discriminatory animus against Mexicans or other Central and South Americans. “This conclusion ends the constitutional inquiry,” Arlington Heights, 429 U.S. at 267, and we reject Carrillo-Lopez’s equal protection claim. In reaching this conclusion, we join the Fifth Circuit, which in a case raising substantially identical arguments and relying on the same evidence, held that the evidence was “insufficient to establish that Congress enacted § 1326 with racial animus.” Barcenas-Rumualdo, 53 F.4th at 866–67. 

Let's see whether this case goes en banc. 

5/18/23: Case on disqualifying an entire U.S. Attorney’s Office

In United States v. Williams, --- F.4th ---, No. 22-10174 (9th Cir. 2023), on the government's interlocutory appeal, the Court reversed the district court's order disqualifying the entire District of Arizona U.S. Attorney’s Office and directing the Department of Justice to supply an attorney from outside Arizona to represent the government in pending motions concerning misconduct allegations against one Assistant U.S. Attorney in the Arizona office.

First, the Court concluded it had jurisdiction under the collateral order doctrine.  The Court noted "that the disqualification of defense counsel in a criminal matter was not immediately appealable."  But it reached the opposite conclusion as to government counsel because "unlike government counsel, the improper disqualification of a defense counsel is redressable on appeal after a guilty verdict."

Second, on the merits, the Court focused on separation-of-powers principles and held that the district court abused its discretion: "Before disqualifying an entire U.S. Attorney’s Office, a district court must make specific factual findings that show that the office’s continued representation would result in a clear legal or ethical violation. Because the record does not reveal pervasive misconduct or a blanket conflict here, we reverse the disqualification order."

4/10/23: At long last, a published criminal decision

In United States v. Ramos, --- F.4th ---, No. 21-10184 (9th Cir. 2023), a divided panel affirmed the district court’s denial of Demetrius Verardi Ramos’s motion to suppress his post-arrest statements. 

Ramos was arrested for transporting undocumented people and charged with violating 8 U.S.C. 1324. 

Ramos moved to suppress, among other things, his statements made during the interrogation. He argued that his statements were involuntary because, just prior to the interrogation, Agent Barron had shown him a plastic baggie containing drugs and threatened him with drug charges if he did not cooperate. In its response to the motion, the government denied that such a conversation ever took place. 

The magistrate judge held an evidentiary hearing regarding the motion to suppress. After the hearing, the magistrate judge issued a twenty-page report recommending that the district court deny Ramos’s motion to suppress.

Ramos objected to the report but the district court filed a boilerplate order adopting it. 

On appeal, Ramos argued that the district court did not conduct a true de novo review. According to Ramos, the district court’s “bare assertion” that it reviewed de novo is insufficient because the order was “mere boilerplate” and failed to address his specific objections. 

The majority rejected this assertion.  "When the district court said it independently reviewed the record and there is no evidence indicating otherwise, we have no reason to second-guess its assertion of de novo review."  Turning to the merits, the majority found no error in denying the motion to suppress.  

The dissent saw the case differently: "In my view, the district judge’s failure to discuss any of the issues raised by Ramos’s motion to suppress or by Ramos’s objections to the magistrate judge’s report is unacceptable and warrants remand."  

"[T]here are good reasons to suspect that the district judge’s order adopting the magistrate judge’s report here is, for all practical purposes, a 4½-page rubberstamp. Nearly all of the verbiage in the order is non-specific to this case and consists largely of citations addressing the legal framework for reviewing magistrate judges’ reports. Indeed, nearly two full pages consist of a string citation of cases upholding, as sufficient to satisfy de novo review, district judges’ unexplained orders summarily rejecting objections and adopting such reports. The only aspects that relate specifically to this case are the names of the magistrate judge who filed the report and of the party who objected and the docket numbers of the parties’ filings. Moreover, a Westlaw search reveals that, on at least 30 other occasions since March 2021, this same district judge has entered largely verbatim identical boilerplate orders—complete with the exact same pages of string cites—rejecting objections to, and adopting, magistrate judges’ reports."

3/8/23: Case on safety valve

In United States v. Salazar, --- F.4th ---, No. 22-50060 (9th Cir. 2023), on the government's appeal, the Court vacated a sentence and remanded for resentencing.

The Court concluded that the district court erred in granting safety-valve relief because Mr. Salazar never proffered what he knew about the offense to prosecutors as required by § 3553(f)(5). 

The Court further determined that there is no futility exception to the proffer requirement in § 3553(f)(5). Thus, even if Mr. Salazar had no further knowledge of the conspiracy beyond what the government already knew, he should have at least communicated that fact to the government in order to qualify for relief.

3/1/23: The Fourth Amendment implications of an unzipped fanny pack

Because truth is stranger than fiction, today's decision in United States v. Taylor, --- F.4th ---, No. 21-10377 (9th Cir. 2023), turned largely on an unzipped fanny pack. 

The Court affirmed the district court’s denial of a motion to suppress evidence discovered following a traffic stop.

"At the point when [the officer] asked Taylor . . . to exit the vehicle, the officers knew that Taylor was driving a vehicle without license plates or registration tags, that he lacked identification, and that he was on federal supervision for being a felon in possession of a firearm. But once Taylor stepped out of the car, officers had another data point: Taylor’s distinctive unzipped fanny pack slung across his chest. Both officers testified that fanny packs are commonly used to store weapons, with Gariano noting police had seen 'an uptick' in this behavior . . . . That the fanny pack was empty and unzipped added to the reasonable suspicion. As Officer Alvarado testified, it was 'odd' that Taylor had the fanny pack 'on his person' when 'there was nothing in it.'"

"We of course recognize that standing alone, a fanny pack is not necessarily an unusual item of apparel. We certainly do not suggest that officers have reasonable suspicion to frisk anyone who wears that accessory. But here, the fanny pack was curiously empty and unzipped, and it did not stand on its own: officers had just pulled Taylor over for driving without license plates, Taylor had no identification, and, most critically, Taylor had just disclosed that he was on federal supervision for being a felon in possession of a firearm. When combined with the officers’ experience with fanny packs, the circumstances taken as a whole created reasonable suspicion that Taylor, who was not permitted to have a gun, might have one."

Thus, the Court held that the officers did not unreasonably prolong the stop.  It further held: 

"[T]here is a second doctrinal pathway to affirming the denial of Taylor’s motion to suppress as to the duration of the stop once Taylor stepped out of the car. The second pathway is this: even if officers prolonged the encounter beyond the original mission of the traffic stop, they had a sufficient basis to do so. As we have described, the officers knew about Taylor’s traffic offenses and that he was on federal supervision for being a felon in possession, and once Taylor stepped out of the car, the officers could clearly see Taylor’s unzipped, empty fanny pack. At that point, under the totality of the circumstances, and for the reasons we gave above, officers had 'reasonable suspicion of an independent offense.' Thus, even if, contrary to precedent, the frisk and criminal history check were beyond the mission of the traffic stop, they were still permissible based on the officers’ reasonable suspicion of an independent offense: Taylor’s unlawful possession of a gun."

The Court also held that the warrantless search of Taylor's car was valid based on consent. 

So, the moral of the story.  Always zip your fanny packs!