12/27/23: Lengthy decision on analogue-based drug-trafficking prosecutions

In United States v. Galecki, --- F.4th ---, No. 20-10288 (9th Cir. 2023), the Court affirmed Benjamin Galecki’s and Charles Burton Ritchie’s drug-trafficking and money-laundering convictions in connection with their distribution of “spice,” a synthetic cannabinoid product; reversed their mail and wire fraud convictions; and remanded for further proceedings. The opinion is long and covers a host of issues.  

First, the defendants argued that all of their convictions should be set aside on the ground that the district court erred in refusing to suppress evidence seized during or as a result of a raid at Zencense’s Nevada warehouse. The Court held that because the warehouse was leased by the company and not by the defendants personally, they failed to establish that they have Fourth Amendment standing to challenge the search and that the district court therefore properly denied their motions to suppress.

Next, considering the record as a whole, the Court concluded that a rational jury could find beyond a reasonable doubt that the defendants had the scienter required for an Analogue Act case.

The Court also rejected the defendants' challenge to the deliberate indifference instruction given at trial, and also rejected the defendants' as-applied vagueness challenge to the statutory definition of a “controlled substance analogue” in the Analogue Act.

The Court found no error in district court’s failure to compel the Government to grant use immunity to two potential defense witnesses who would have testified as to the defendants’ scienter concerning whether XLR-11 was covered by the Analogue Act. The Court held that defendants failed to make the requisite showing of a direct contradiction in testimony that resulted in a fundamentally unfair distortion of the fact-finding process.

Rejecting the defendants’ contention that the evidence was insufficient to support their convictions for operating a continuing criminal enterprise in violation of the CSA, the Court held that the evidence was sufficient to permit a rational jury to conclude that the defendants acted “in concert” with five or more persons.

Turning to the mail and wire fraud convictions, the Court held that "[w]hile [a] misrepresentation may be material without inducing any actual reliance,” —as in the case of a false statement to an undercover law enforcement officer who is secretly aware of the defendant’s fraudulent scheme—there can be no materially false statement when both the listener and the hearer know and intend that the words being used have the same distinctive meaning."  Thus, the defendants were entitled to judgment of acquittal on these counts, because the Government presented no evidence that the specific alleged misrepresentations were materially false to anyone who bought Zencense’s products. 

Finally, the Court addressed whether the jury’s general verdict on the money laundering offenses—which did not specify on which predicate offenses it relied—may stand. The Court held that any error under Yates v. United States, 354 U.S. 298 (1957), in allowing the money laundering convictions to be based on the mail and wire fraud conduct, rather than on the CSA offenses, was harmless beyond a reasonable doubt.

12/26/23: Venue, Vicinage, and Section 1001 Essential Conduct & another case too.

The day after Christmas brings us two decisions

First, in United States v. Fortenberry, --- F.4th ---, No. 22-50144 (9th Cir. 2023), the Court reversed former congressman Jeffrey Fortenberry’s conviction for making false statements, in violation of 18 U.S.C. § 1001(a)(2), without prejudice to retrial in a proper venue, and remanded.

"The Constitution plainly requires that a criminal defendant be tried in the place where the criminal conduct occurred. The district court determined, and the government urges on appeal, that a Section 1001 violation occurs not only where a false statement is made but also where it has an effect on a federal investigation. We conclude that an effects-based test for venue of a Section 1001 offense has no support in the Constitution, the text of the statute, or historical practice. Consequently, we reverse Fortenberry’s conviction without prejudice to retrial in a proper venue."

"[H]istory confirms what the Constitution commands. The founding generation had a deep and abiding antipathy to letting the government arbitrarily choose a venue in criminal prosecutions. Implying an effects-based test for venue in Section 1001 cases, when Congress has not so specified, would allow just that, in derogation of our historical principles. Because a Section 1001 offense is complete at the time the false statement is uttered, and because no actual effect on federal authorities is necessary to sustain a conviction, the location of the crime must be understood to be the place where the defendant makes the statement."

"Fortenberry’s trial took place in a state where no charged crime was committed, and before a jury drawn from the vicinage of the federal agencies that investigated the defendant. The Constitution does not permit this. Fortenberry’s convictions are reversed so that he may be retried, if at all, in a proper venue. See Smith, 599 U.S. 236. The case is remanded for further proceedings that are consistent with this decision."

Next, in United States v. De Leon Guerrero, --- F.4th ---, No. 22-10042 (9th Cir. 2023), the Court affirmed De Leon Guerrero's convictions on two counts of attempted enticement of a minor, but reversed, vacated, and remanded as to three special conditions of supervised release.

This case arose from a sting in Guam created by federal agents to identify individuals “with access to Andersen Air Force Base who were willing to engage in sexual conversation or attempt to meet a minor for sexual contact.”  The Court determined that it was bound by its prior opinion in United States v. Lopez, 4 F.4th 706 (9th Cir. 2021).

The Court also vacated certain conditions of supervised release related to sex offenders.  

12/12/23: Case on Fourth Amendment trespass theory.

 In United States v. Esqueda, --- F.4th ---, No. 22-50170 (9th Cir. 2023), the Court affirmed the district court’s denial of Christopher Esqueda’s motion to suppress evidence in a case in which Esqueda entered a conditional plea to possessing a firearm as a felon, 18 U.S.C. § 922(g)(1).

The Court held that an undercover officer who physically enters a premises with express consent and secretly records only what he can see and hear by virtue of his consented entry does not trespass, physically intrude, or otherwise engage in a search violative of the Fourth Amendment. The Court held that the Supreme Court’s decisions in Jardines and Jones do not disturb this well-settled principle.

12/8/23: Good minor role decision

In United States v. Klensch, --- F.4th ---, No. 22-50222 (9th Cir. 2023), the Court vacated a sentence imposed following the defendant’s guilty plea to one count of transportation of an illegal alien, and remanded for resentencing. 

On appeal, Klensch argued that the district court applied the wrong legal standard when it determined that he was not entitled to a minor-role reduction under U.S.S.G. § 3B1.2 because he personally transported two men.

The opinion contains helpful language rejecting the government's argument for plain-error review.  As to the merits, the Court explained: 

Here, the district court’s analysis of the minor-role reduction is thin. It did not question the parties about or discuss at the sentencing hearing the factors that govern the comparative-liability analysis or the facts relevant to that analysis. Rather, after the parties’ arguments, it simply pronounced: "In this particular case, Mr. Klensch was the one transporting the individuals. And I don’t find that there is sufficient evidence that his role was minor in this case."

Here, the district court’s cursory explanation gives no indication that it considered the required factors or did any comparative analysis of Klensch’s conduct. While it was not required to mechanically analyze each factor or reference them verbatim on the record, Diaz, 884 F.3d at 914, 916, providing some explanation, even in general terms, of how the considerations embodied in the factors apply in this case “is part and parcel of considering” them.

The district court’s singular and cursory explanation for not granting a minor-role reduction, referencing only that Klensch drove the two men, indicates that the district court improperly relied “on courier conduct as dispositive,” despite the Guidelines’ clarification “that performance of an essential role . . . is not dispositive.”

While we generally assume that the district court applied the correct legal standard, we cannot do so when the record indicates the contrary.

The Court, therefore, vacated and remanded, although it affirmed the district court's imposition of a dangerous-weapons enhancement

11/8/23: Case on the leader-or-organizer enhancement under Section 3B1.1(c)

In United States v. Vinge, --- F.4th ---, No. 10300 (9th Cir. 2023), the Court affirmed a sentence for possession with intent to distribute methamphetamine, in a case in which Daniel Vinge argued that the district court should not have applied the leader-or-organizer enhancement under Section 3B1.1(c) of the Sentencing Guidelines because no evidence suggests that he “exercised control over others” in the organization.

The Court explained:  "Because our recent cases have not been entirely clear with respect to the distinction between an organizer and a leader under § 3B1.1(c), we reiterate that the level of control required to be an organizer is only 'the ability and influence necessary to coordinate the activities of others to achieve the desired result.'"

"We thus reiterate that for the organizer enhancement to apply, what is required is 'the necessary influence and ability to coordinate the behavior of others so as to achieve the desired criminal result.' These softer forms of authority or control are sufficient for a determination that a defendant is an organizer."

The Court also rejected Mr. Vinge's other sentencing arguments. 

10/6/23: Case on the Major Crimes Act and the serious bodily injury enhancement under U.S.S.G. § 2A3.1(b)(4)(B)

In United States v. Scott, --- F.4th ---, No. 21-30128 (9th Cir. 2023), the Court  (1) affirmed Luke Scott’s conviction for felony child abuse under the Major Crimes Act, 18 U.S.C. § 1153, and Mont. Code Ann. § 45-5-212; and (2) affirmed the district court’s application of a serious bodily injury enhancement under U.S.S.G. § 2A3.1(b)(4)(B) to Scott’s sentence for aggravated sexual abuse by force or threat in violation of 18 U.S.C. § 2241(a).

These were consolidated appeals arising from separate prosecutions for acts against different victims. 

In the first case, the Court held that government properly charged Scott with felony child abuse under the Major Crimes Act and the Montana statute. The Major Crimes Act provides federal jurisdiction for the prosecution of Native Americans for discrete crimes, including “felony child abuse.” It also provides that, when an enumerated offense is not defined and punished by federal law, it shall be defined and punished in accordance with the laws of the state in which such offense was committed. 

The Court rejected Scott’s argument that Congress’s 2013 amendments to the Major Crime Act—including its addition of “a felony assault under section 113”—displaced the crime of felony child abuse under the Major Crimes Act such that the government may no longer use state law to define the crime. 

In the second case, the Court rejected Scott’s argument that the district court’s imposition of the serious bodily injury enhancement under § 2A3.1(b)(4)(B) for his conviction for aggravated sexual abuse resulted in improper double counting.  This issue is a bit complicated.  But ultimately, The Court adopted the Tenth Circuit’s analysis, which reasoned that (1) § 1B1.1 provides different definitions of “serious bodily injury”—a Harm Definition and a Conduct Definition; (2) the Conduct Definition cannot be used when applying the Sexual Abuse Guideline; (3) nothing precludes a sentencing court from considering whether the victim’s injuries “resulting directly from the sexual abuse as well as those suffered during relevant conduct surrounding that offense” qualify as serious bodily injury under the Harm Definition; and (4) the serious-bodily injury enhancement can apply to a sexual abuse offender convicted under convicted under § 2241, but it must be based on the fact that the victim’s injuries meet § 1B1.1’s Harm Definition.

10/4/23: Sentencing case in the 922(g)(1) context

In United States v. Barlow, --- F.4th ---, No. 22-30030 (9th Cir. 2023), the majority affirmed a sentence imposed on John Barlow following his guilty plea to possessing a firearm as a felon.  

On appeal, Barlow raised three objections to his sentence: (1) the district court’s application of a four-level enhancement for possessing the firearm in connection with another felony violated his Fifth and Sixth Amendment rights under Apprendi, 530 U.S. 466, and Alleyne, 570 U.S. 99; (2) the application of the same four-level enhancement was clear error because there was insufficient evidence to support the finding that Barlow used or possessed a firearm in connection with the felony of assault with a weapon under Mont. Code Ann. § 45-5-213; and (3) the district court erred by determining that Barlow’s prior conviction under Georgia law for aggravated assault was a “crime of violence” resulting in an increased base offense level calculation under the Guidelines.

The majority rejected these arguments, holding: "we affirm because Barlow has not shown that the district court erred in calculating his sentence under the Guidelines. Barlow has not shown that applying the four-level enhancement violated his rights under the Fifth or Sixth Amendments. He has not shown that the district court’s factual finding that Barlow possessed the firearm in connection with his commission of assault with a weapon under Montana law is erroneous. Finally, the district court correctly determined that Barlow’s prior Georgia conviction for aggravated assault was a '"crime of violence.'"