10/31/22: case on supervised release sentencing

In United States v. Richards, --- F.4th ---, No. 21-10190 (9th Cir. 2022), the Court affirmed the district court’s imposition of consecutive 24-month sentences on James Richards after finding he violated the conditions of his supervised release by possessing two guns and ammunition.

On appeal, Richards argued that the consecutive sentences: violate his rights under the Fifth and Sixth Amendments as explained in United States v. Haymond, 139 S. Ct. 2369 (2019); violate his rights under the Double Jeopardy Clause; and are not supported by sufficient evidence.

The Court rejected these arguments: 

Richards has not shown that the district court violated his rights under the Double Jeopardy Clause or abused its discretion in giving Richards two consecutive 24-month sentences for violating his conditions of supervised release. The district court found by a preponderance of the evidence that Richards had possessed two separate firearms (with ammunition). We reject Richards’ claim that his violations should have been determined beyond a reasonable doubt by a jury, as that argument is not supported by Justice Breyer’s controlling concurring opinion in Haymond, was previously rejected in Henderson, and has been uniformly rejected by our sister circuits. 

We reject Richards’ challenges to his consecutive sentences because he was found to have possessed two distinct firearms (with ammunition) which were found in different places and at different times. Moreover, the district court based the sentences on two distinct counts in Richards’ underlying indictment, and the consecutive sentences are supported by evidence proving four charges in the Amended Petition as well as evidence concerning a fifth charge. 

Finally, Richards has not shown that, when considered in the light most favorable to the government, a rational trier of fact could not have concluded that the preponderance of evidence established that Richards had possessed the firearms and ammunition. 

10/24/22: case on “organizer” or “leader” Guidelines increase

In United States v. Kabir, --- F.4th ---, No. 21-50141 (9th Cir. 2022), the Court affirmed Sohiel Omar Kabir sentence on terrorism-related charges. 

The opinion does not really break new ground.  The Court held:  "[T]he district court reasonably concluded that Kabir had 'the necessary influence and ability to coordinate the behavior of others so as to achieve [a] desired criminal result,' meaning that he was an 'organizer' within the meaning of USSG § 3B1.1(c)."  

The Court also rejected a few other arguments under the plain-error standard. 

10/13/22: Interesting case on opinion testimony

Sorry for the delay in reporting on this case.  It slipped through the cracks because the Ninth Circuit no longer releases all of its published opinions at 10:00 am. 

In United States v. Holguin, --- F.4th ---, No. 19-50158 (9th Cir. 2022), a divided panel affirmed the appellants' convictions for RICO and other crimes based on their alleged connection to the Canta Ranas gang.  

This case deals at length with the requirement that district courts make explicit reliability findings for any expert testimony.  It also addresses lay opinion testimony and dual-role testimony.  

If you are challenging opinion testimony, this case is a must read.  There is lots of helpful language. 

Because the district court enjoys “broad latitude” with regard to “how to determine reliability,” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 142 (1999) (emphasis removed), we cannot say that its failure to hold a hearing in this case was an abuse of discretion. Yet it would have been prudent to hold such a hearing, or employ other procedures such as focused voir dire, because district courts must make explicit findings that the government’s expert testimony was reliable.

We caution, however, that even if not required, it will often be beneficial for district courts to conduct some proceeding, focused on the reliability of expert testimony, such as a Daubert hearing or voir dire of proffered expert testimony.

While a district court’s inquiry is “flexible,” Alatorre, 222 F.3d at 1102, “the flexibility afforded to the gatekeeper goes to how to determine reliability, not whether to determine reliability.” Valencia-Lopez, 971 F.3d at 898 (emphasis in original). A district court “abdicates its gatekeeping role, and necessarily abuses its discretion, when it makes no reliability findings.” Id.; see also Barabin, 740 F.3d at 464. Reliability findings must be made “explicit” on the record – an “implicit” finding does not suffice.

A district court must distinguish an expert’s qualifications from the reliability of the expert’s principles and methods. See Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1315-16 (9th Cir. 1995) (“[S]omething doesn’t become ‘scientific knowledge’ just because it’s uttered by a scientist.”). It is “an abuse of discretion to confuse Daubert’s reliability and qualification requirements.” Weinstein & Burger, supra, § 702.04. “While ‘there is inevitably some overlap … they remain distinct concepts and the courts must take care not to conflate them.’”

To carry out its gatekeeping role, a district court must find that an expert’s testimony is reliable – an inquiry that focuses not on “what the experts say,” or their qualifications, “but what basis they have for saying it.” Daubert, 43 F.3d at 1316. A district court cannot be silent about reliability when challenged. 

10/11/22: the independent source doctrine strikes again

In United States v. Saelee, --- F.4th ---, No. 20-10209 (9th Cir. 2022), the Court affirmed Tony Saelee's convictions for attempted possession of Ecstasy with intent to distribute, and conspiracy to distribute Ecstasy and to possess it with intent to distribute.

After intercepting packages containing ecstacy, agents conducted a controlled delivery at Saelee's apartment.  After he accepted the packages, agents arrested him and searched the apartment without a warrant.  About an hour later, they obtained a warrant. 

The Court affirmed the denial of Saelee's motion to suppress based on the independent source doctrine.  Under that doctrine, suppression is unwarranted, even where evidence was “initially discovered during, or as a consequence of, an unlawful search,” when that evidence is “later obtained independently from activities untainted by the initial illegality.”

The Court held that, because all of the tangible and intangible evidence obtained as a result of the alleged violations was independently rediscovered or reseized when the agents executed a search warrant that was both sought and issued independently of any such violations, the district court correctly denied the motion to suppress.

The Court also rejected a host of other evidentiary challenges. 

9/23/22: Interesting case on Rule 41.

In United States v. Wright, --- F.4th ---, No. 19-10302 (9th Cir. 2022), the Court affirmed the district court’s orders with respect to Brian Wright’s claim in proceedings under Fed. R. Crim. P. 41(g) for the return of money seized from him in 2014 and 2017.  The Court held that neither Wright nor the government has established a right to the money.

"We hold that neither party has established its right to the money. Wright is correct that, as the person who last held the cash before it was seized, he was presumptively entitled to its return. But the district court properly found that this presumption was rebutted by the considerable evidence demonstrating that the money was stolen. We affirm the district court’s orders with respect to Wright’s claim to the money."

"At the same time, we hold that the government has not established its ownership of the money. Congress has enacted a detailed statutory forfeiture scheme through which the government may establish title in seized property. For reasons the government has struggled to articulate, it never invoked this scheme. We decline to permit the government to sidestep the forfeiture statutes, and their accompanying procedural protections, by way of a Rule 41(g) proceeding. Due to its various procedural errors, the government has not perfected title in the money and, unfortunately, Wright’s victims must continue to await compensation."

9/14/22: Very good compassionate release decision

In United States v. Chen, --- F.4th ---, No. 20-50333 (9th Cir. 2022), the Court vacated the district court’s denial of Howard Chen’s motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A), and remanded.

The issue was whether a district court may consider the First Step Act’s non-retroactive changes to sentencing law, in combination with other factors particular to the individual defendant, when determining whether extraordinary and compelling reasons exist for a sentence reduction under § 3582(c)(1)(A).

The Court held that it could. 
 

"We now join the First, Fourth, and Tenth circuits and conclude that district courts may consider non-retroactive changes in sentencing law, in combination with other factors particular to the individual defendant, when analyzing extraordinary and compelling reasons for purposes of § 3582(c)(1)(A). There is no textual basis for precluding district courts from considering non-retroactive changes in sentencing law when determining what is extraordinary and compelling."

"To hold that district courts cannot consider non-retroactive changes in sentencing law would be to create a categorical bar against a particular factor, which Congress itself has not done. In fact, such a categorical bar would seemingly contravene the original intent behind the compassionate release statute, which was created to provide the “need for a ‘safety valve’ with respect to situations in which a defendant’s circumstances had changed such that the length of continued incarceration no longer remained equitable.”

"We instead follow our precedent in Aruda and allow district courts to consider any extraordinary and compelling reason a defendant might raise, including § 403(a)’s non-retroactive changes in sentencing law."

9/13/22: Two decisions today

In United States v. Fowler, --- F.4th ---, No. 21-30172 (9th Cir. 2022), the Court affirmed the district court’s denial of Eric Fowler’s motion to suppress evidence discovered as a result of a traffic stop made by a Montana state trooper while Fowler, a member of an Indian tribe, was driving on a highway that runs through the Fort Peck Indian Reservation.

This case focuses on the cross-deputization agreement between the State of Montana and the Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation.  The Court held that the agreement was valid and thus so was the stop.   

In United States v. Montoya, --- F.4th ---, No. 21-50129 (9th Cir. 2022), the Court affirmed Montoya's conviction and sentence for importing cocaine and methamphetamine.

Montoya entered a plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(B).  On appeal, she argued that the district court erred by not allowing her to withdraw her guilty plea because it supposedly treated her plea agreement as a binding plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C).

The Court rejected this argument and a host of others.  It also reiterated that the district court need not orally pronounce conditions of supervised release that are mandatory under 18 U.S.C. § 3583(d) or recommended by the Guidelines as “standard, boilerplate conditions of supervised release.”