11/15/19: Search case with a supervised release issue

In United States v. Ped, --- F.3d ---, No. 18-50179 (9th Cir. 2019), the Court affirmed the denial of the defendant's suppression motion but vacated a few supervised release conditions.

I believe this is the first published criminal case by the newly appointed Judge Miller. 

The Court found the warrantless home search here was permissible because the police had probable cause to believe the defendant's brother (who was on post-release community supervision with a 4th waiver) lived at the house.  This was so despite the fact that the defendant and the defendant's mother told police he did not live there and the brother having previously reported that he did not live there.  The Court concluded that the officers reasonably relied on a probation list, notwithstanding that it was three months old.

As to the supervised release issue, the district court required that the defendant “support his . . . dependents and meet other family responsibilities,” that he “work regularly at a lawful occupation,” and that he “notify third parties of risks that may be occasioned by [his] criminal record or personal history or characteristics.

Based on Circuit precedent, the Court found these conditions were unconstitutionally vague.  The Court held it needed to remand the case to the district court, rather than rewrite the conditions: “a remand is required under § 3742(f)(1) whenever the reviewing court concludes that the sentence was imposed 'in violation of law.'”

11/4/19: Two cases today, two affirms

Two cases today.  One on the Fourth Amendment and one on SORNA

In United States v. Norris, --- F.3d ---, No. 17-10354 (9th Cir. 2019), the Court affirmed the defendant's conviction for distribution and possession of material involving the sexual exploitation of minors.

The case involved the government's use of software and a directional antenna to find the location of the defendant's computer.

The basic facts were that the defendant hacked into his neighbor's wireless network from an adjacent apartment and used that internet connection to share contraband images on a peer-2-peer network.  

To find the defendant's location (that is, the location of his computers), agents used a wireless tracking software program, Moocherhunter, designed to identify computers trespassing on wireless networks, and a wireless antenna. The software pointed the agents to the defendant's apartment.  They obtained a search warrant and found contraband. 

The district court denied the defendant's motion to suppress, and the Court affirmed.  

First, it held there was "no actual physical intrusion into Norris’s apartment," because the signal extended outside of his home and was captured outside of his home:  "The FBI’s actions may be likened to locating the source of loud music by standing and listening in the common area of an apartment complex. Although the music is produced within the apartment, the sound carries outside the apartment. Just as no physical intrusion 'on constitutionally protected areas' would be required to determine the source of the loud music, no physical intrusion into Norris’s residence was required to determine the strength of the wireless signal emanating from the devices in his apartment."

Second, the Court held that, under the Katz test, there was no reasonable expectation of privacy in the signal because it extended outside of the home (and on this basis, the Court distinguished Kyllo).  Further, the Court explained, "[w]e have also generally concluded that society is not prepared to recognize as reasonable a subjective expectation of privacy in the content of property obtained through unauthorized means."

The Court also rejected the defendant's argument that he was entitled to a Franks hearing. 

Moving on, in United States v. Dailey, --- F.3d ---, No. 18-10134 (9th Cir. 2019), the Court dismissed an appeal from the district court’s imposition of a probation condition requiring the defendant to register as a sex offender pursuant to the Sex Offender Notification and Registration Act.

This is one of those cases where the Court had to decide the merits of the appeal to determine whether it was covered by the appellate waiver.

On that subject, the Court summarized the relevant waiver law: 

There are, however, several exceptions to waivers of the right to appeal. “An appeal waiver will not apply if: 1) a defendant’s guilty plea failed to comply with [Federal Rule of Criminal Procedure] 11; 2) the sentencing judge informs a defendant that she retains the right to appeal; 3) the sentence does not comport with the terms of the plea agreement; or 4) the sentence violates the law.”  Among other things, a sentence that violates the law is a sentence “in excess of the permissible statutory penalty for the crime,” a category that includes unlawful probation conditions. 

The defendant argued the last exception applied, because she was wrongly required to register under SORNA.  She claimed her conviction for violating the Travel Act did not constitute a “sex offense.”  

In rejecting her claim, the Court held the categorical approach does not apply: "faced with the question whether the only acceptable interpretation of [SORNA's] residual clause is to apply a noncategorical approach regarding the age of the victim, we hold that it is." 

Thus, because the defendant admitted in her plea that the offense of conviction involved a minor, registration was required. 

10/31/19: Split decision - commenting on silence

In United States v. Garcia-Morales, --- F.3d ---, No. 17-50323 (9th Cir. 2019), a split panel affirmed the defendant's conviction for attempted transport of aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(ii).

The appeal turned on whether the prosecution introduced evidence of, and commented on, the defendant's post-arrest silence at trial.  Here's what happened:

the prosecution played a video clip of Garcia’s post-arrest interrogation. In the video, Border Patrol Agent Kahl asked Garcia to identify his alien smuggling co-conspirators. Although Garcia had already answered a number of questions up to this point in the videorecorded interrogation, he refused to discuss his coconspirators, stating “I ain’t feeling cool with that camera.” Agent Kahl pressed harder, asking “why don’t you just give me a name?” Garcia shook his head nervously, sighed heavily, and started to say “I don’t . . . .” Agent Kahl interrupted Garcia to remind him that if he did not name his co-conspirators, he alone would take the fall for the crime of alien smuggling. Garcia shook his head timidly, bit his nails, and once again stated: “I don’t feel cool with the camera . . . .” Agent Kahl again cut him off, this time stating: “Okay, if you want, alright, well, later on we’ll turn off the camera and you can tell me.” Garcia sheepishly nodded his head in agreement.  

Despite suggesting that he might talk about his coconspirators off camera, Garcia later refused to name his coconspirators during subsequent off-camera discussions with Border Patrol agents. 

During trial, the prosecution elicited direct testimony from Agent Kahl in its case-in-chief about Garcia’s refusal to identify his co-conspirators. Later, the prosecution argued in its closing statement that Garcia must be guilty because he was “evasive about other people who are involved,” asking “Why does he want the recording turned off? . . . It wasn’t because he had a plan the entire time to turn these people over.”  

The majority concluded:  "Garcia was not silent in response to Agent Kahl’s questioning on the topic of his co-conspirators. This conclusion is driven by the fact that the exchange between Agent Kahl and Garcia began with Garcia voicing discomfort with video recording and concluded with Garcia agreeing to speak about his coconspirators. At most, the exchange demonstrated that Garcia did not want to discuss his co-conspirators on video tape but was willing to continue talking about the subject later."

The dissent, however, explained: "It makes no difference that Garcia intimated that he might be willing to answer questions about his coconspirators at another time (which ultimately never happened), because such an 'explanatory refusal' to answer is treated the same as silence for Fifth Amendment purposes."  The dissent continued:  "The prosecution’s reference to Garcia’s silence as evidence of his guilt in this context was a Doyle violation, plain and simple."

10/15/19: Rule 414 case

In United States v. Thornhill, --- F.3d ---, No. 18-30046 (9th Cir. 2019), the Court affirmed the defendant's conviction for receipt of child pornography, holding that the district court did not abuse its discretion when it admitted, under Rule 414, evidence of the defendant’s prior state conviction for sexual abuse of a minor.

Rule 414(a) provides: “[i]n a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant.”

Rule 414, however, is subject to Rule 403 balancing.  Previously, in Lemay, the Court set forth a multi-factor test guiding the application of Rule 403 in the Rule 414 context.

The decision in this case focused on the fifth factor:  "the necessity of the evidence beyond the testimonies already offered at trial."

The majority determined that, despite this language, a district court need not wait until the introduction of the other trial evidence before ruling on the proposed Rule 414 evidence.

Concurring in the decision, but not the reasoning, Judge N.R. Smith explained, "LeMay requires trial judges to reserve judgment on this issue until after the other testimony has been offered."  However, in this case, he found the timing error harmless.

10/9/19: Great sentencing win

In United States v. Valle, --- F.3d ---, No. 18-50199 (9th Cir. 2019), the Court vacated the defendant's illegal reentry sentence, denied the government a second bite at the apple, and remanded for immediate resentencing under a lower Guidelines range.

At issue was whether the defendant was subject to an increased Guidelines range based on his prior state drug convictions.  The answer under 2L1.2 and 4A1.1 turned on whether those convictions were within 10 and/or 15 years of his current offense.  (If not, they would not count for sentencing purposes).

Thus, the salient question was when did the defendant's current illegal reentry “commence”?

The government and PSR said it was in 2004 when the defendant was arrested but not removed.  The defense said it was in 2017 when he was arrested (found in) for the current offense. 

The district court sided with the government.  The Ninth Circuit reversed.

"[W]e consider whether the Government can establish by clear and convincing evidence a non-citizen’s continuous presence in the United States since the alleged time of reentry without submitting any direct evidence of where the non-citizen was for more than a decade. We hold that it cannot. We give some weight to the inference that a non-citizen who had previously returned after being removed and who had family in the United States would have made efforts to stay in the country. But that inference is not enough to carry the Government’s burden here to prove the thirteen years of continuous presence in the United States necessary to support the enhancements applied to Petitioner Miguel Valle’s sentence."

In other words, because the government had no evidence of where he was between the 2004 and 2017 arrests, it could not prove the defendant was in the U.S. the whole time. "Ultimately, because it was the Government’s significant burden to prove that Valle was continuously present, and it produced no evidence whatsoever about where he was for over a decade, the district court clearly erred in concluding that the Government had sufficiently proven that he remained in the United States."


 There is also a good discussion of why the clear and convincing standard applies. 

Additionally, the Court explained:

"It is the Government’s burden to prove continuous presence, not Valle’s burden to prove lack thereof."

"Here, because the Government failed to carry its burden despite an extensive factual inquiry below, it is not entitled to 'a second bite at the apple.' Id. We therefore hold that on remand it may not submit new evidence of Valle’s whereabouts."

"For the foregoing reasons, we vacate Valle’s sentence and remand for resentencing based on the Guidelines range of 1 to 7 months. Because Valle has already been in custody for the illegal reentry offense for about 20 months, we order the mandate to be issued forthwith and to be transmitted without delay to the district court for immediate resentencing."

9/23/19: Oral jury instructions required

In United States v. Becerra, --- F.3d ---, No. 17-30050 (9th Cir. 2019), the Court vacated the defendant's drug-related convictions because the district court plainly erred in failing to give oral jury instructions.  Although the court provided written instructions, and confirmed the jurors read them, this was insufficient. 

The Court held: "Our circuit held nearly thirty years ago that oral instructions to the jury as to the law they must apply are an essential feature of a jury trial. Guam v. Marquez, 963 F.2d 1311, 1314–15 (9th Cir. 1992). A trial court does not satisfy its duty to instruct jurors in a criminal case just by providing those jurors with a set of written instructions to use during deliberations. Id. We further determined that when a trial court abdicates its responsibility to charge the jury orally as to the elements of the charged crimes, it commits structural error. Id. at 1315–16. We are bound by those holdings and so reverse the conviction in this case."

9/19/19: Interesting stuff

Rarely is a case heard initially en banc.  But today, that is what the Ninth Circuit ordered. 

In United States v. Collazo, et. al., --- F.3d ---, No. 15-50509 (9th Cir. 2019), the Court issued an order for the case to be heard initially en banc.  The issue will be "the proper jury instruction under 21 U.S.C. § 841(b) for determining the drug type and quantity involved in a conspiracy offense."

More specifically, based on the briefing, it appears the Court will consider whether the district court is required to instruct the jury that a drug quantity attributable to an individual defendant must be both jointly undertaken in furtherance of that defendant’s agreement and reasonably foreseeable to that defendant.  Or, whether the instruction should be in the disjunctive regarding --whether certain drug types and quantities were either “reasonably foreseeable” to an individual defendant or “fell within the scope of his particular agreement.”