3/12/24: Good 1326(d) decision on carjacking in violation of PC § 215

In United States v. Orozco-Orozco, --- F.4th ---, No. 22-50146 (9th Cir. 2024), the Court reversed the district court’s order denying Orozco’s motion to dismiss under 8 U.S.C. § 1326(d), and remanded for further proceedings.

Orozco was originally removed from the United States in 2013 through an expedited process after an immigration officer determined that his 2005 conviction for carjacking in violation of California Penal Code § 215 was an aggravated felony under the Immigration and Nationality Act (INA).

The district court (in the SDCA) denied Orozco's motion, agreeing with the government that his carjacking conviction qualified as a “theft offense,” and thus as an aggravated felony, under the INA.

The Ninth Circuit reversed: "In sum, despite § 215’s use of the common-law phrase 'felonious taking,' carjacking in California does not require a showing of intent to steal. Rather, § 215 requires only that the defendant intend to permanently or temporarily deprive the current driver or passengers of their possession of the vehicle, by force or by fear. We are bound by the California Supreme Court’s statement of the elements of § 215. We therefore hold that § 215 is not a categorical match for a generic theft offense and thus is not an aggravated felony under the INA."

The Court thus reversed and remanded for the district court to consider whether Orozco satisfied all three prongs of § 1326(d).

3/11/24: One case, two victories

No published criminal decisions today gives me time to share some good news about a case I won this morning in a memorandum.  

The case is United States v. Graves, No. 22-50289 (9th Cir. 2024).  This is my second appellate victory for Mr. Graves. 

The first time, after trial, the Ninth Circuit vacated his life sentence.  See United States v. Graves, 925 F.3d 1036 (9th Cir. 2019).   On remand, he got 25 years.  

We appealed again and I argued it last month.  The Ninth vacated the sentence again, finding the district court plainly erred in determining the mandatory minimum.  

There is helpful language in the decision for plain error sentencing appeals.   

The memorandum also discusses the statutory maximum for state offenses under the old California sentencing regime, pre-Cunningham.

Great way to start the week.

3/7/24: Speedy Trial Act case

In United States v. Layfield, --- F.4th ---, No. 22-50047 (9th Cir. 2024), the Court affirmed Philip James Layfield’s convictions for wire fraud, mail fraud, and various tax offenses. 

Layfiend argued that the twenty-one days it took the U.S. Marshals Service to transport him from the District of New Jersey (where agents arrested him) to the Central District of California (where the grand jury indicted him) should have triggered a Speedy Trial Act violation.

The Court rejected his argument.  It explained, Section 3161(c)(1) provides that the seventy-day STA clock is triggered only by the public filing of the indictment or the first appearance before a judge of the court in which the charge is pending, whichever date last occurs.  Thus, the twenty-one-day delay between Layfield’s detention in New Jersey and his first appearance before a judge in the CDCA was immaterial to the Speedy Trial Act analysis.

3/5/24: Receipt of the proceeds of extortion under 18 U.S.C. § 880

In United States v. Lemus, --- F.4th ---, No. 22-50046 (9th Cir. 2024), the Court affirmed convictions for conspiracy under 18 U.S.C. § 371; aiding and abetting the receipt of the proceeds of extortion under 18 U.S.C. §§ 880, 2(a); and receiving the proceeds of extortion under § 880.

The Court's introduction provides a good summary:

Federal law criminalizes receiving the proceeds of extortion. See 18 U.S.C. § 880. But must a person know that the money or property at issue was in fact payment from extortion? Or is it sufficient for a person to know that the money was somehow “unlawfully obtained”? Id. In this case, Edgar Hernandez Lemus and Junior Almendarez Martinez (collectively, “Defendants”) ask us to resolve these questions. Based on its plain language, we conclude that § 880 requires only that the government prove knowledge that the proceeds were “unlawfully obtained.” And so we affirm Defendants’ convictions, rejecting their § 880 mens rea arguments. 

*****

As stated above, § 880’s knowledge requirement is satisfied if the defendant knew the proceeds at issue were “unlawfully obtained”—meaning obtained in any manner contrary to or prohibited by law. 

2/28/24: conspiracy targeting U.S. military personnel and property in Iraq.

In United States v. Alahmedalabdaloklah, --- F.4th ----, No. 18-10435 (9th Cir. 2024), the Court affirmed in part and reversed in part the conviction, after a jury trial, of Ahmed Alahmedalabdaloklah (Oklah), a Syrian national, for participating in a conspiracy that targeted U.S. military personnel and property in Iraq.

The opinion is 113 pages and covers myriad issues, so I'm not going to summarize it myself. Instead, I'm including the Ninth Circuit's summary below:

Reversing in part, the panel agreed with the parties that Oklah’s convictions on Counts Three and Four, for conspiring to possess a destructive device in furtherance of a crime of violence and aiding and abetting the same, could not stand after the Supreme Court’s decision in United States v. Davis, 139 S. Ct. 2319 (2019). On those counts, the panel remanded with direction to the district court to vacate the convictions. 

The panel affirmed Oklah’s convictions on Counts One and Two, for conspiring to use a weapon of mass destruction, in violation of 18 U.S.C. § 2332a, and conspiring to damage U.S. Government property by means of an explosive, in violation of 18 U.S.C. § 844(f) and (n). 

As to Count Two, the panel held that 18 U.S.C. § 844(f) and (n) applied to Oklah’s extraterritorial conduct. The panel held that the presumption against extraterritoriality applies to criminal statutes as well as to civil statutes. Reconciling United States v. Bowman, 260 U.S. 94 (1922) (whether a criminal statute has extraterritorial reach depends on the nature of the criminalized conduct and the interests the statute protects), with Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247 (2010), and RJR Nabisco, Inc. v. European Cmty., 579 U.S. 325 (2016) (setting forth a two-step test for determining whether a statute applies extraterritorially), the panel held that a criminal statute applies extraterritorially when (1) a federal criminal offense directly harms the U.S. Government, and (2) enough foreseeable overseas applications existed at the time of the statute’s enactment to warrant the inference that Congress both contemplated and authorized prosecutions for extraterritorial acts. The panel concluded that the text and context of § 844(f) and (n) provide a clear indication that they apply extraterritorially, including to Oklah, a foreign national. Accordingly, the presumption against extraterritoriality was rebutted.

The panel held that, during pretrial discovery, the district court properly exercised its discretion in granting the Government’s motions to use the processes set forth in the Classified Information Procedures Act (CIPA) to withhold or “substitute” classified information from discovery. As recognized by Oklah, precedent foreclosed his argument that his constitutional rights were violated because he and his counsel were not present at several CIPA hearings and because his counsel was prohibited from sharing or discussing certain “Secret”-level documents with him. Having placed itself in defense counsels’ shoes and examined the classified records in full, the panel concluded that the district court did not abuse its discretion in its CIPA rulings, and the panel confirmed that the withheld classified materials were either not discoverable, or were not relevant and helpful to Oklah’s defense. The panel held that the district court also did not abuse its discretion by authorizing the Government to turn over substitution statements to the defense in lieu of other discovery.

The panel concluded, however, that several of the Government’s supporting declarations were insufficient to sustain its invocation of the state-secrets privilege because this privilege requires formal invocation, either by the head of the department that has control over the matter or by a minister who is the political head of the department. The panel excused the Government’s failure to comply with the formal invocation requirement in this case because it would be of little or no benefit to remand for the purpose of having the department head agree that the disclosure of the classified information would pose a risk to national security.

The panel held that the use at trial of the overseas deposition testimony of Jamal Al-Dhari about Oklah’s connection to the Iraqi Revolution Brigades did not violate Oklah’s rights under the Confrontation Clause; the Supreme Court’s rulings in Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), and Napue v. Illinois, 360 U.S. 264 (1959); or the rule against the admission of hearsay evidence. 

The panel held that the district court properly excluded, as hearsay, emails between FBI Special Agent Whitson and Al-Dhari. 

The panel held that the district court properly admitted the testimony of Christopher Graham and refused to grant a mistrial or to strike Graham’s expert testimony on the Government’s physical evidence. 

The panel held that the Government’s failure to produce James Dempsey, a Department of Defense-affiliated witness, at trial did not violate Oklah’s constitutional rights to due and compulsory process. 

The panel held that the district court’s refusal to order the Government to search the entire Department of Defense for relevant documents was not error under Brady, which requires the Government to produce to the defense exculpatory or impeaching evidence in the prosecutor’s possession.

The panel held that remand for resentencing was warranted because the parties agreed that the convictions on Counts Three and Four must be vacated, but the panel rejected Oklah’s argument that the case should be reassigned to a different district judge on remand.

2/14/24: Case on home searches and statements

In United States v. Parkins, --- F.4th ---, No. 22-50186 (9th Cir. 2024), the Court reversed the district court’s denial of Brett Wayne Parkins’s suppression motion concerning the search of his apartment, affirmed the district court’s refusal to suppress Parkins’s pre-arrest and post-arrest statements, and remanded, in a case in which Parkins was convicted of aiming a laser pointer at an aircraft.

When patrol officers came to his apartment, Parkins made clear he did not want them to enter, but his girlfriend consented to a search.  The Court, after reviewing the Supreme Court’s cases regarding warrantless searches involving the consent of a co-tenant, concluded that to override his girlfriend's consent, Parkins must have both been present on the premises and expressly refused consent. The Court explained that a defendant need not stand at the doorway to count as being physically present— presence on the premises (including its immediate vicinity) is sufficient. The Court wrote that in light of the layout of the property and Parkins’s close proximity to his apartment, the nearby mailboxes bordering the parking lot where Parkins was detained were part of the relevant premises; thus, Parkins was physically present on the premises to validly object. The panel also wrote that it is clear that Parkins expressly refused consent, as Parkins’s statement not to let the police into the apartment expressly conveyed his objection and the import of that statement was especially clear following on the heels of his physical resistance at the doorway of his home. Accordingly, the consent-based search of Parkins’s home was unlawful.

The Court, however, found that the district court correctly declined to suppress Parkins’s pre-arrest and post-arrest statements.  

First, because Parkins was not subject to interrogation during his pre-arrest detention, there was no Miranda violation.  Second, as to the post-arrest statements made during his jailhouse interview, the Court concluded that Parkins’s statements were not a product of the unlawful search of his apartment because the officers did not confront Parkins with the evidence obtained as a result of that search.

1/24/24: Expedited removals and acceptance of responsibility

In United States v. Gambino-Ruiz, --- F.4th ---, No. 21-50303 (9th Cir. 2024), the Court affirmed José Gambino-Ruiz’s conviction and sentence for illegal reentry under 8 U.S.C. § 1326 in a case in which he argued (1) the removal order that served as the basis for that charge—an expedited removal—was improper under the Immigration and Nationality Act; and (2) the district judge considered impermissible factors in denying a downward sentencing adjustment for acceptance of responsibility.

In his collateral attack under 8 U.S.C. § 1326(d), Gambino-Ruiz maintained that his 2013 removal violated his due process rights because he was not inadmissible on grounds that authorize expedited removal, and thus could not be placed in expedited removal proceedings.

In a complex opinion addressing the relevant statutory interplay and fictive legal states, the Court rejected his claim.  It is very hard to summarize the Court's analysis, so I'll just share its conclusion: 

We conclude that Gambino-Ruiz was inadmissible under § 1182(a)(7) and therefore properly subject to expedited removal under § 1225(b)(1)(A)(i). The theory Gambino-Ruiz propounds overreads the significance of our decision in Torres and would “create a perverse incentive to enter at an unlawful rather than a lawful location.”  This was the precise situation that Congress intended to do away with by enacting the Illegal Immigration Reform and Immigrant Responsibility Act. We refuse to interpret the INA in a way that would in effect repeal that statutory fix. We hold that the government did not violate Gambino-Ruiz’s due process rights when it removed him via expedited proceedings in 2013. He was properly convicted of illegal reentry under 8 U.S.C. § 1326.

As to his argument for acceptance of responsibility after trial, the Court held: "Gambino-Ruiz has not persuaded us that his was the rare circumstance where the adjustment for acceptance of responsibility is due after the defendant has proceeded to trial. Although he confessed his illegal status when he was most recently apprehended, he sought to suppress those inculpatory statements pre-trial. Apart from his pre-trial decisions, he continued to contest his guilt during trial by attempting to negate a key element of the offense, namely his alienage. His motive at trial was clearly beyond merely 'preserv[ing] issues that do not relate to factual guilt.' U.S.S.G. § 3E1.1 cmt. 2. We therefore affirm the district judge’s denial of the acceptance-of-responsibility adjustment and Gambino-Ruiz’s sentence."