6/8/23: Major SCOTUS 1028A (aggravated identity theft) decision

In Dubin v. United States, 599 U.S. --- (2023), the vacated the judgment of the Fifth Circuit and significantly narrowed the scope of 1028A. 

This is a must read for anyone practicing in federal court.  Here are some highlights:

Section 1028A(a)(1)’s title and terms both point to a narrower reading, one centered around the ordinary understanding of identity theft. This cuts against the Government’s broad reading, which the Government admits bears little relationship to the common understanding of identity theft. In contrast, a more targeted reading accurately captures the ordinary understanding of identity theft, where misuse of a means of identification is at the crux of the criminality. 

Start at the top, with the words Congress chose for §1028A’s title: “Aggravated identity theft.” 118 Stat. 831. This Court has long considered that “‘the title of a statute and the heading of a section’ are ‘tools available for the resolution of a doubt’ about the meaning of a statute.”

[U]se of the means of identification is at the crux of the underlying criminality. These definitions refer to offenses built around what the defendant does with the means of identification in particular. In other words, the means of identification specifically is a key mover in the criminality. This central role played by the means of identification, which serves to designate a specific person’s identity, explains why we say that the “identity” itself has been stolen. 

[I]dentity theft is committed when a defendant uses the means of identification itself to defraud or deceive. This tracks the Sixth Circuit’s heuristic. When a means of identification is used deceptively, this deception goes to “who” is involved, rather than just “how” or “when” services were provided. Use of the means of identification would therefore be at “the locus of [the criminal] undertaking,” rather than merely “passive,” “passing,” or ancillary employment in a crime.

Generally, to unlawfully “possess” something belonging to another person suggests it has been stolen. And to unlawfully “transfer” something belonging to another person similarly connotes misappropriating it and passing it along.

“Transfer” and “possess” not only connote theft, but identity theft in particular. The verbs point to (1) theft of a (2) means of identification belonging to (3) another person. That tracks ordinary understandings of identity theft: “a crime in which someone [1] steals [2] personal information about and [3] belonging to another.” Black’s 894. Similarly, “the [1] fraudulent appropriation and use of [3] another person’s [2] identifying data or documents.”

In sum, §1028A(a)(1)’s title and text are mutually reinforcing. Both point toward requiring the means of identification to be at the crux of the criminality.

A far more sensible conclusion from the statutory structure is that §1028A(a)(1)’s enhancement is not indiscriminate, but targets situations where the means of identification itself plays a key role—one that warrants a 2-year mandatory minimum. This points once more to a targeted reading, where the means of identification is at the crux of the underlying criminality, not an ancillary feature of billing. 

Finally, the Government makes a familiar plea: There is no reason to mistrust its sweeping reading, because prosecutors will act responsibly. To this, the Court gives a justas-familiar response: We “cannot construe a criminal statute on the assumption that the Government will ‘use it responsibly.’” “[T]o rely upon prosecutorial discretion to narrow the otherwise wide-ranging scope of a criminal statute’s highly abstract general statutory language places great power in the hands of the prosecutor.” 

Taken together, from text to context, from content to common sense, §1028A(a)(1) is not amenable to the Government’s attempt to push the statutory envelope. A defendant “uses” another person’s means of identification “in relation to” a predicate offense when this use is at the crux of what makes the conduct criminal. To be clear, being at the crux of the criminality requires more than a causal relationship, such as “‘facilitation’” of the offense or being a but-for cause of its “success.”  Instead, with fraud or deceit crimes like the one in this case, the means of identification specifically must be used in a manner that is fraudulent or deceptive. Such fraud or deceit going to identity can often be succinctly summarized as going to “who” is involved.

6/6/23: Case on parole searches

In United States v. Estrella, --- F.4th ---, No. 22-10027 (9th Cir. 2023), the Court affirmed the district court’s denial of Christian Alejandro Estrella’s motion to suppress evidence in a case in which Estrella entered a conditional guilty plea to being a felon in possession of a firearm and ammunition. 

The opinion's introduction provides a good summary.  Here it is: 

On August 14, 2019, Appellant Christian Alejandro Estrella (“Estrella”) was arrested as a felon in unlawful possession of a firearm after two officers discovered a handgun and ammunition concealed in his vehicle. At the time of this encounter, Estrella was a registered gang member on California state parole, and was subject to a suspicionless search condition that has been upheld by the Supreme Court. See Cal. Penal Code § 3067(b)(3); see also Samson v. California, 547 U.S. 843, 857 (2006). After entering a plea of guilty and preserving his right to appeal, Estrella appeals the district court’s denial of his motion to suppress evidence, arguing that the officers did not have advance knowledge that he was on parole at the time of this encounter. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. 

It is firmly established that “[a] search of a parolee that complies with the terms of a valid search condition will usually be deemed reasonable under the Fourth Amendment.” United States v. Cervantes, 859 F.3d 1175, 1183 (9th Cir. 2017). As a threshold requirement, we have held that “an officer must know of a detainee’s parole status before that person can be detained and searched pursuant to a parole condition.” Moreno v. Baca, 431 F.3d 633, 641 (9th Cir. 2005). However, this Court has yet to specifically address how precise that knowledge must be. 

For the reasons articulated below, we now hold that a law enforcement officer must have probable cause to believe that a person is on active parole before he may be detained and searched pursuant to a parole condition. Although a law  enforcement officer must have “advance knowledge” that the detainee remains on active parole, United States v. Cesares, 533 F.3d 1064, 1076 (9th Cir. 2008), the officer need not “know to an absolute certainty,” with precise day by-day or minute-by-minute information of the detainee’s parole status, People v. Douglas, 193 Cal. Rptr. 3d 79, 89 (Cal. Ct. App. 2015). It is sufficient for the officer to determine, using the well-established rules governing probable cause, that the individual to be detained and searched is on active parole, and that an applicable parole condition authorizes the challenged search or seizure. 

Applying this standard, we conclude that the arresting officers had probable cause to believe that Estrella remained on active parole when he was detained and searched on August 14, 2019. We further hold that this encounter did not violate California’s independent prohibition on arbitrary, capricious, or harassing searches. Accordingly, we affirm the denial of Estrella’s motion to suppress. 

5/31/23: Important career offender decision

Today's case is complicated but a must read. If you have had a career offender finding based on a conspiracy conviction predicate, it is no longer a valid career offender predicate. 

In United States v. Castillo, --- F.4th ---, No. 21-50054 (9th Cir. 2023), the Court vacated Roberto Castillo’s sentence for conspiracy to distribute at least 50 grams of methamphetamine in violation of 21 U.S.C. §§ 846 and 841, and remanded for resentencing. 

Here are some highlights from the decision. 

Roberto Castillo pleaded guilty to the crime of conspiracy to distribute at least 50 grams of methamphetamine in violation of 21 U.S.C. §§ 846 and 841. The district court concluded that this offense of conviction qualified Castillo as a career offender under United States Sentencing Guidelines Manual (U.S.S.G.) § 4B1.1, as it was a “controlled substance offense,” as defined by U.S.S.G. § 4B1.2(b). However, the text of U.S.S.G. § 4B1.2(b) does not actually include “conspiracy to distribute” in its list of controlled substance offenses. Rather, Application Note 1 states that “controlled substance offenses” include “offenses of aiding and abetting, conspiring, and attempting to commit such offenses.” We have previously held that Application Note 1 permissibly expands on, and is consistent with, the text of U.S.S.G. § 4B1.2(b). We must decide whether Kisor v. Wilkie, 139 S. Ct. 2400 (2019), is intervening “clearly irreconcilable” authority that requires us to examine the plain text of the guideline, determine whether there is any ambiguity, and if there is not, to disregard the interpretive gloss set forth in the guideline’s commentary. Miller v. Gammie, 335 F.3d 889, 892–93 (9th Cir. 2003). In short, we must decide which side of a growing intercircuit split is correct on the question whether Application Note 1 improperly expands the definition of “controlled substance offense” in § 4B1.2(b). 

Because we conclude that we must apply the Supreme Court’s decision in Kisor, and that Application Note 1 improperly expands the definition of “controlled substance offense” in U.S.S.G. § 4B1.2(b), we vacate Castillo’s sentence and remand for resentencing consistent with this opinion.  

***

Castillo argues that the district court erred by concluding that his offense of conviction—conspiracy to distribute—is a “controlled substance offense” that qualifies him as a career offender under U.S.S.G. § 4B1.1. We agree. 

Castillo’s sentence was for a drug conspiracy. The Sentencing Guidelines’ definition of “controlled substance offense” for career offender enhancements currently does not include inchoate crimes like conspiracies, although the commentary extends the definition to such crimes. U.S.S.G. § 4B1.2(b), application note 1. Because only the commentary includes inchoate crimes, and the text of the guideline unambiguously does not, applying the Supreme Court’s Kisor analysis, we must conclude that Castillo’s conspiracy conviction does not qualify as a “controlled substance offense” under U.S.S.G. § 4B1.2(b).

***

Castillo’s argument tees up two questions: (1) is Kisor an intervening decision, and (2) is Kisor clearly irreconcilable with our prior decisions, such that we may reexamine our precedent as a three-judge panel? We answer both questions in the affirmative. Kisor is an intervening decision of a higher authority that is clearly irreconcilable with our holdings in Vea-Gonzales and Crum.

***

Surely, issues which are “neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.”

Because no prior Ninth Circuit panel has considered the effect of Kisor on the Stinson deference we previously applied to the Guidelines’ commentary, we conclude that Kisor is an intervening decision of a higher authority.

***

Kisor’s reasoning is clearly irreconcilable with Vea-Gonzales and Crum. Applying the traditional tools of statutory construction to the text of the guideline, as Kisor instructs, we conclude that § 4B1.2(b) unambiguously identifies a list of crimes that does not include inchoate offenses. 

***

Because we find that § 4B1.2(b)’s definition of “controlled substance offense” is unambiguous, the Supreme Court’s decision in Kisor now makes it impermissible to defer to Application Note 1 to determine whether conspiracy fits into this definition.

Accordingly, we hold that our precedent in Crum and Vea-Gonzales applied an inappropriate level of deference to § 4B1.2(b)’s commentary, and consequently, these cases are irreconcilable with Kisor’s instructions regarding review of agency regulations and deference to an agency’s, including the Sentencing Commission’s, interpretive commentary. To the extent that Crum and Vea-Gonzales hold that an inchoate offense is a “controlled substance offense” for career enhancement purposes under the Sentencing Guidelines, we overrule them.

***

[T][he Sentencing Commission’s lack of accountability in its creation and amendment of the commentary raises constitutional concerns when we defer to commentary such as Application Note 1 that expands unambiguous Guidelines, particularly because of the extraordinary power the Commission has over individuals.

***

Because the text of § 4B1.2(b) unambiguously does not include inchoate offenses, and because we are no longer permitted to rely on the commentary of an unambiguous guideline after Kisor, we hold that Castillo’s conspiracy conviction is not a “controlled substance offense” under the career offender enhancement, § 4B1.1.9 Accordingly, the district court erred by relying on the PSR’s recommendation that Castillo qualifies as a career offender. We vacate Castillo’s sentence and remand for resentencing consistent with this opinion.  

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."