Sunday, April 21, 2019

Case o' The Week: It Isn't What You Know . . . - Price and Mens Rea Requirements for Int'l Flight Sex Offense Statute

 No “know?”

 No problem.  
United States v. Price, 2019 WL 1575875 (9th Cir. Apr. 12, 2019), decision available here.

Players: Decision by Judge Wardlaw, joined by Judge Nguyen. 
  Concurrence by visiting Sixth Circuit judge Ronald Lee Gilman, “unabashedly” adopting draft opinion written by Judge Stephen Reinhardt, before his untimely passing. 
  Hard-fought appeal by CD Cal AFPD Jonathan Libby.  

Facts: Price, a 46-year old man, moved from his assigned seat to sit next to a young woman on a flight from Tokyo to L.A.. Id. at *1. He fondled the breast of the sleeping 21-year old Japanese student, slipped his hand in her underwear, and touched her vagina. Id. 
  Price was charged with a violation of 18 USC § 2244(b), which prohibits knowingly engaging in sexual contact with another person, without their permission, on an international flight. Id.
  At trial, Price disputed the § 2244(b) jury instruction. Id. at *3. Price asked for an instruction that required proof that he knew the sexual contact was without the woman’s permission. Id.
  The district court denied that instruction, Price was convicted, and appealed.

Issue(s): “Price appeals his conviction, contending that the government was also required to prove beyond a reasonable doubt that he subjectively knew that his victim did not consent.” Id. at *1.

Held: “To read ‘knowingly’ to apply to the second element in § 2244(a) [prohibiting sex acts criminalized in other statutes] would both be grammatically unnatural and produce absurd results. Because a conviction under § 2244(a) does not require that the government prove the defendant’s knowledge of the additional element, we should read § 2244(b) in the same manner.” Id. at *6.
  “In enacting the Sexual Abuse Act of 1986, of which 18 U.S.C. § 2244(b) is a part, Congress sought to expand criminal culpability for sexual acts and contacts and facilitate prosecution of those crimes. Thus it placed the burden on the actor who knowingly engages in sexual contact with another person to first obtain that person’s consent, objectively given. The government need not prove that the defendant subjectively knew he lacked consent, as Price asserted here. It need only prove that the victim did not consent as an objective matter.” Id. at *11.

Of Note: The Ninth’s April 2018 decision in Yovino v. Rizo made recent news. In Yovino, the Supreme Court rejected an en banc vote by Judge Reinhardt that was cast before he passed away, and before the opinion was issued. See Washington Post article here. “Federal judges are appointed for life, not for eternity,” the high Court clucked disapprovingly. Id.
The Hon. Judge Stephen Reinhardt
  It is interesting to remember this SCOTUS’ scolding, when reading the compelling concurrence in Price. See id. at *11 (Gilman, J., concurring). Visiting Judge Gilman persuasively explains why this statute should be read to include a knowing mens rea as to whether the defendant was acting with permission. Id. Judge Gilman explains that before his death, Judge Reinhardt was a member of the Price panel and wrote a draft opinion. Judge Gilman reveals, “Unabashedly, much of this concurrence can be attributed to the portions of Judge Reinhardt’s draft opinion with which I fully agree.” Id.
  “Eternity” might be a stretch, but it is fair to say that Judge Reinhardt’s remarkable legacy continues well beyond his death.

How to Use: Sex offenses on international flights? Rare. 
  Disputes over mens rea requirements? Common. 
   The bulk of Price is statutory analysis of this infrequently-charged crime, inferred from adjacent statutes and assumed from the (low) custodial term at stake for this offense. Id. at *7-*8. For better or worse, turn to Price when mens rea and statutory interpretation battles arise – the decision has some helpful inverse propositions (for example, high-exposure statutes support the need for higher mens rea requirements. Id. at *7.
For Further Reading: Ninth - 4:3:2. Four vacancies, three nominees, hearings held on two. 
   For a quick tabular recap of the current nomination status of the Ninth Circuit in the 116th Congress, see “Judicial Vacancies and Nominations,” available here 

Image of “The Price Isn’t Right” from

Image of the Honorable Judge Stephen Reinhardt from

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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Thursday, April 18, 2019

Washington v. Ryan, No. 05-99009 (4-17-19)(Gould w/N. Smith; Callahan dissenting). The 9th grants sentencing relief in this pre-AEDPA capital habeas. The majority holds that counsel was ineffective in its investigation of mitigation and representation. In a pre-AEDPA review, evidence existed for childhood abuse, diffuse brain damage, and substance abuse.

Callahan, dissenting, argues that the majority does not follow the Strickland deferential standard, but engages in second-guessing and in cherry picking facts.

The decision is here:

Monday, April 15, 2019

US v. Price, No. 15-50556 (4-12-19)(Wardlaw w/Nyguyen; concurrence by Gilman). This has been the week for “flight” (as in airplane) opinions (see yesterday’s venue entry).

This opinion deals with the “knowingly” engaging in sexual contact under 18 U.S.C. § 2244(b). The act occurred on an international flight from Tokyo to Los Angeles.  The contact occurred when the victim was asleep at the time.  On appeal, the defendant argues that in addition to the  gov’t proving beyond a reasonable doubt  that he knowingly had sexual contact with the victim, the government also must prove that he subjectively knew the defendant did not consent. The defendant argues that “knowingly” in the statute refers to both engaging in conduct, and knowing that he was acting without consent.

In affirming the conviction, the majority rejected this reading of requiring a subjective “knowing” that the conduct was without permission.  It stated that such a requirement was contrary to the text, the structure of the statutory scheme, and its purpose.  The intent of the legislation in criminalizing sexual conduct within this federal jurisdiction was a focus on the defendant’s conduct.  The 9th’s reading prevents the defendant from asserting a subjective belief that the victim was “enjoying herself.”

The 9th held as well that there was probable cause, and that he was properly Mirandized. The court acted within its discretion in refusing the jury’s request to read back portions of the victim’s testimony.

Concurring, Gilman would require that “knowingly” in the statute be applied to “without that other person’s permission.” He argues  that this is a better reading the text, and one supported by the Supreme Court in Flores-Figueroa v. US, 556 US 646 (2009)(knowingly applied to each element of the statute).  The statute does not criminalize innocent sexual conduct based on a fact – lack of permission – unknown to the defendant.  The lack of permission can be proved by the gov’t by circumstantial evidence.

There is now arguably a split with the 8th Circuit’s reading of a related statute, 2242(2), in US v. Bruguier, 735 F.3d 754 (8th Cir. 2013)(en banc).

Gilman concurs because any error was harmless.  He notes too that his “concurrence” was taken from a draft opinion authored by Judge Reinhardt before his death. Nguyen replaced him.  This was consequential.

Deputy Federal Defender Jonathan Libby of Cal Central (L.A.) presented the “knowingly” issue well.  Again, we apparently have a circuit split.

The decision is here:
US v. Monique Lozoya, No. 17-50336 (4-11-19)(M. Smith w/Settle;  partial concurrence and dissent by Owens). 

This is an interesting opinion—think of it as an in-flight venue.  Indeed, the case concerns the proper venue for a simple assault (class B) that occurred on a flight from Minneapolis to Los Angeles.  Somewhere over the Great Plains, the defendant, in a middle seat, grew annoyed with the jostling from the seat behind her. She confronted the passenger when he left the seat. In her version, his abrasive shout startled her and she reactively “made contact with his face.”  In the victim’s version, she yelled at him to stop tapping the TV screen, and hit him with the back of her hand, causing his nose to bleed.

About a month after the incident, the defendant faced a violation notice for a class B misdemeanor. She subsequently was charged with an information.  This is important because of the issue of Speedy Trial.  The court, and then the 9th, found no violation.

At a bench trial, with various witnesses, the court convicted the defendant of simple assault under 113(a)(4). The defendant had moved for a rule 29 acquittal based on venue.  This was denied.

On appeal, the 9th found that venue was violated.  The 9th deemed venue improper in California Central. The proper venue was where the charged offense occurred: somewhere before the flight entered Cal Central airspace.  The 9th looks at article III of the Constitution, Supreme Court precedent (US v. Rodriguez-Moreno, 526 U.S. 275 (1999), and the statute for venue, 18 U.S.C. § 3237.  Each authority focuses on the offense, charged conduct, or incident.  Rodriguez-Moreno clearly states that to ascertain venue, a court must look at the charged conduct and the location it took place. The interstate commerce requirement for the assault, moreover, does not transfer to venue.

The 9th acknowledges this is contrary to the 10th and  11th Circuit precedent.  The 9th dismissed the opinions as pre-Rodriguez-Moreno and without analysis.

The 9th recognizes issues with exact location but states that modern technology and witnesses can prove venue.  It also says that Congress could fix the statute easily by making venue proper where the flight landed. 
Dissenting, Owens believes that the 9th is too clever.  It misapplies the conduct rule, ignores the purpose of venue (why over the Great Plains – with no connection -- and not where the flight landed), and flies blind as to problems with, say, the Northeast, where there are multiple districts and Circuits, all possible venues, or not.

As to be expected, both the majority and dissent use the facts of air flight to be creative (i.e. “friendly skies)”.  Owens starts his dissent with a listing of films where criminal conduct takes place on flights (“You do not need to watch Passenger 57, Flightplan, Turbulence, or even the vastly underrated Executive Decision to know that dangerous activity occurs on airplanes” 26). 

Congrats to Deputy Federal Defender Jim Locklin, Cal Central (Los Angeles) for quite a win.  Many of us will now listen to possible periodic updates on venue as we cruise at 30,000 feet in middle seats.

The decision is here:
US v. Johnson, No. 18-10016 (4-9-19)(Bennett w/M. Smith & Nguyen).

This opinion reminds us that objections to facts in the PSR matters, even in criminal history.  The 9th affirms a sentence in a felon in possession appeal. The defendant argues on appeal that his prior conviction was erroneously characterized and counted as a felony; he contends that it was a California “wobbler” and thus a misdemeanor. Although the gov’t said that the review should be plain error, and the defendant said de novo, the 9th said it didn’t matter because under Rule 32, the defendant failed to object to the facts that a prior was a felony, and indeed, even conceded in the sentencing memo that the defendant had “two felonies.” Alternatively, the 9th reaffirms the approach of “wobblers” under Moncrieffe v. Holder, 569 US 184 (2013), where the conduct could be both a felony and a misdemeanor.  There is no “wobbling” here, because the conduct was punished as a felony. The 9th stresses that a wobbler conviction is punishable as a felony, even if a court later exercises its discretion to reduce the offense to a misdemeanor. The classification of a wobbler conduct as a misdemeanor does not operate retroactively.

The decision is here:


Sunday, April 14, 2019

Case o' The Week: A Wobble Bobble? - Christopher Johnson, Claims vs. Arguments, and Rule 32 on Appeal

  Priors may wobble, but they don’t fall down (in the Ninth).
United States v. Christopher Johnson, 2019 WL 1523106 (9th Cir. Apr. 9, 2019), decision available here.

Players: Decision by Judge Mark Bennett, joined by Judges M. Smith and Nguyen. 
  Hard-fought appeal by AFPDs Amy Cleary and Cullen Macbeth, D. Nevada FPD.

Facts: Johnson pleaded guilty to being a felon in possession of a firearm. Id. at *1. The DJ assigned a base offense level of 20, based on prior “crime of violence” felony priors. Specifically, Johnson had been convicted in California for assault with a deadly weapon (not a firearm), in violation of CPC § 245(a)(1). Id. at *2. Johnson had been sentenced to six months in county jail for that offense. Id. 
  In federal court, the defense objected to the use of this assault prior as a “crime of violence” because it lacked the necessary men rea. Johnson did not, however, object to its classification as a felony. Instead, in its sentencing memo, the defense stated Johnson had two prior felony convictions. Id. 
  The district court counted this Cali prior as a felony crime of violence: Johnson appealed.

Issue(s): “On appeal, Johnson argues that the district court erred by applying a crime-of-violence enhancement to his offense level. We first consider whether Johnson’s concessions in the district court foreclose his newly minted argument that his underlying conviction for violation of California Penal Code (‘CPC’) § 245(a)(1) was not actually a felony under California law. Reviewing de novo, we also examine Johnson’s CPC § 245(a)(1) conviction to determine whether it truly was for a felony, and if so, whether, in light of Moncrieffe v. Holder, 569 U.S. 184, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013), a felony conviction for violating CPC § 245(a)(1) can be a predicate offense for a crime-of-violence enhancement.” Id. at *1.

Held:Because the answer to all three questions is yes, we affirm Johnson’s sentence.Id.

Of Note: The troubling holding Christopher Johnson is not really the “crime of violence” holding -- though disappointing, this holding on Cali assault is old news. The real problem is the Ninth’s rejection of a new defense argument on a preserved claim that the crime-of-violence enhancement was improper as to a particular prior. Id. at *2. 
  On appeal, Johnson argued that this § 245(a)(1) prior was actually a “wobbler;” a uniquely Californian breed of offense where felonies can be “wobbled” down to misdemeanors. Id. The Ninth didn’t buy it. “We reject Johnson’s belated attempts to characterize his underlying California conviction as a misdemeanor.” Id. Because trial counsel didn’t dispute the PSR’s characterization of the prior as a felony, appellate counsel was stuck with that “fact” on appeal – even though the defense had asserted a claim in the district court that the prior didn’t qualify as a felony crime of violence. Id. at *4.
 The law in the Ninth has long been that parties can waive claims, but not arguments . Notably, in its briefing the Nevada FPD cited United States v. Pallares-Galan,359 F.3d 1088 (9th Cir. 2004) for that proposition. See AOB, 2018 WL 2234305 at *15-16. Yet the Ninth doesn’t cite or address Pallares in Christopher Johnson. As the NorCal appellate brain trust has observed, this is particularly troubling given the Ninth’s fondness for this “claim / argument” distinction when it salvages the government’s new arguments on appeal. See, e.g., United States v. Blackstone, 903 F.3d 1020, 1025 & n.2 (9th Cir. 2018); see also “How to Use” discussion here. 
  Beware of Christopher Johnson – the “claims / arguments” line of authority may have a PSR-objection carve-out, now. The decision is worth a close read for its great emphasis on Fed. R. Crim. Proc. 32 ramifications in the district court, and the corresponding encroachment on the claims/argument distinction on appeal.

How to Use: Despite the waiver holding discussed above, the Ninth does go on to hold in the alternative that this wobbler prior was not actually a mido. Id. at *5.
  For better or worse, Christopher Johnson is now a lead case on the analysis of Cali wobblers -- turn to the discussion at *5-*7 when your client has California “wobbler” priors at issue (and object in the district court!)
For Further Reading: What’s a wobbler?
  For a brief and accessible summary, written for a federal practitioner, see California ‘Wobblers’: How to Determine Whether a Prior California Conviction Was a Felony or Misdemeanor, by former CD Cal AFPD Davina Chen, available here

Steven Kalar, Federal Public Defender, N.D. Cal. Website available at


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Saturday, April 06, 2019

Case o' The Week: Protection sans Objection - Haines and FRE 412 Evidence

  The Federal Rules of Evidence cannot be used as both a sword and a shield.

  (By the defense).
United States v. Haines, 918 F.3d 694 (9th Cir. Mar. 14, 2019), decision available here.

Players: Decision by visiting District Judge Adelman, joined by Judges Wallace and Friedland.  

Left to right, the Honorable Judges Wallace and Friedland, and the Honorable District Judge Adelman
Facts: Haines and his friend King were charged with transporting two minor females from Nevada to California to work as prostitutes. Id. at 696. Over time, the girl alleged to have worked for Haines changed her story to the Feds. By trial, she testified that she did not prostitute for Haines and that her grand jury testimony was false. Id. Instead, she testified that she worked independently. Id.
   At trial, Haines attempted to question the girl about her prior prostitution activities (that did not involve a pimp), arguing that this was relevant to the question of whether he recruited her or encouraged her to engage in prostitution. Id. The district court excluded this testimony under Federal Rule of Evidence 412, the “rape shield” rule. Id.
  Haines was convicted, and appealed.

Issue(s): “Haines argues that evidence of J.C.’s prior prostitution activities should have been admitted under the exception to Rule 412 for 'evidence whose exclusion would violate the defendant's constitutional rights'—here, his due process right to present a complete defense and his Sixth Amendment right to confront witnesses.” Id. at 697.

Held: “[I]n cases involving adult victims forced or coerced into prostitution, courts have rejected such arguments, concluding that evidence of other prostitution activity has little or no relevance. Courts have reasoned that just because a victim agreed to engage in sex for money on other occasions does not mean she consented to, e.g., being beaten or having her earnings confiscated by the defendant.” Id. at 697-89 (citations omitted).
  “Haines cites no case holding that a defense such as the one he sought to present here triggers the exception in Rule 412. And we see no reason to depart from the persuasive authorities set forth above that held to the contrary.” Id. at 698-99.

Of Note: The unusual fact in Haines was that the female victim-witness for this Fed. R. Evid. 412 brouhaha was putatively a defense witness. She had recanted her grand jury testimony by the time of trial (after a jailhouse call from Haines, unfortunately). Atypically, the witness wasn’t objecting to the admission of this prior-prostitution evidence by Haines. The government was therefore using Rule 412 not as a shield, to protect a witness’s privacy, but as a sword, to prevent a defendant from eliciting favorable testimony “from a recalcitrant witness.” Id. at 699.
  No matter, concluded the Ninth, in a disappointing limitation on a defendant’s constitutional right to present a defense. “[A]llowing the victim’s wishes to control opens the door to mischief.” Id.      

How to Use: The narrow window left open on this type of “prior prostitution” evidence is when the government “opens the door” by suggesting that an alleged pimp introduced a minor to prostitution (that she was “an innocent lamb led to the slaughter).” Id. at 700. The Ninth holds this door wasn’t opened in the Haines case, in part because the district court warned the government against this line of evidence and argument.  The Court seems to recognize, however, that this type of evidence could be admissible if made relevant by the government’s approach.
For Further Reading: On March 26, the Senate confirmed President Trump’s nomination of the Honorable Magistrate Judge Bridget Bade, of Phoenix, to the Ninth Circuit Court of Appeals. See press release here
  Judge Bade will be joining two confirmed Ninth Circuit Trump nominees: the Honorable Judge Mark Bennett of Hawai’i, and the Honorable Judge Ryan Nelson of Idaho. See Ninth Circuit chart here
 Two additional Ninth nominees cleared the Senate Judiciary Committee on April 4, 2019: Mr. Daniel Collins, of L.A.’s Munger, Tolles & Olson, and Mr. Daniel Lee, of L.A.’s Jenner & Block. See article here

Image of (skeptical) United States v. Sha-Ron Haines panel from

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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Thursday, April 04, 2019

US v. Mutee, No. 17-15415 (4-4-19)(Per curiam w/ Wallace, Rawlinson, and Watford). (Editorial Note: This is an Az FPD habeas case). In a Johnson habeas, the 9th decides that a conviction under North Carolina’s breaking and entering statute qualifies as a predicate felony for ACCA. 

Petitioner here argues that the statute is overbroad. Petitioner argues that the state statute can include mobile homes. However, recently, the Supreme Court in US v. Stitt, 139 S.Ct 399 (2018) held that generic burglary includes burglary of mobile structures used or adapted for overnight accommodations. Petitioner’s argument relied on pre-Stitt 9th Cir precedent, US v. Grisel, 488 9th Cir 844 (9th Cir. 2007) (en banc), which held that generic burglary requires entry of a structure designed for occupancy in one place. This panel therefore abrogates Grisel’s “use of one place” in light of Stitt.

The decision is here:

Sunday, March 31, 2019

Case o' The Week: Don't Bother With Fed, Use County Instead - Artis and Federal Agent Execution of State Search Warrants

  Where do federal agents go for search warrants, for searches to be undertaken by federal investigators, producing evidence leading to federal prosecutions?

  Alameda County, of course.
United States v. Artis, 2019 WL 1375260 (9th Cir. Mar. 27, 2019), decision available here.

Players: Decision by Judge Watford, joined by Judge Tashima and visiting DJ Robreno.
  Hard-fought appeals by ND Cal CJA Stalwarts John Jordan and Steven Gruel (whose names are curiously omitted from the opinion). Underlying suppression of evidence by ND Cal DJ Chhabria.

Facts: Artis and Hopkins were allegedly involved in credit card fraud. Id. at *1. They were state fugitives. Id. 
  Federal Special Agent Stonie Carlson was assigned to the "Pacific Southwest Regional Fugitive Task Force," a joint state-federal task force under the direction of the Marshals. 
  Agent Carlson found Artis, scuffled with him, and ended up with Artis’ phone when Artis fled. Id. Agent Carlson sought a warrant to search the phone from an Alameda County Superior Court (California) judge. Id. Carlson didn’t base the warrant on Artis’ fugitive status – it was instead based on alleged “evidence of crime.” Id. The warrant was directed to “any peace officer in Alameda County” (and federal agents are not “peace officers” under California law.) Id. 
  Federal agents searched the phone, and obtained evidence leading to federal prosecutions. Id. at *2. 
  Northern District of California District Judge Chhabria suppressed the evidence from warrants for both Artis and Hopkins. 
  The government appealed.

Issue(s): “Whether the warrants were improperly executed by federal agents is a closer question. California law requires search warrants to be executed by ‘peace officers,’ but federal agents may assist a peace officer in executing a search warrant, provided the federal agent is acting ‘in aid of the officer on his requiring it, he being present and acting in its execution.’ . . . . [I] t seems doubtful that this requirement was satisfied here, although California courts do not appear to have addressed how strictly this provision should be construed when federal agents execute a search warrant as members of a joint federal-state task force that includes peace officers.” Id. at *4.

Held:We find it unnecessary to decide whether federal agents violated California law by executing the Artis and Hopkins warrants. Even if such a violation occurred, the warrants would still be valid under the Fourth Amendment. An otherwise properly issued search warrant is not rendered void for Fourth Amendment purposes merely because it was executed by law enforcement officers who lacked warrant-executing authority under state law.” Id. at *5.
  [The Ninth later affirms Judge Chhabria as to suppression on the Artis warrant: there was insufficient probable cause. Id. at *7].

Of Note: In this same case, Agent Stonie Carlson obtained another search warrant, for a cell-site simulator for Artis' co-defendant, Hopkins. 
  As with the Artis warrant, Agent Carlson got an Alameda County judge to sign the warrant. Id. at *3. Agent Carlson then deployed the cell-site simulator – in San Francisco County! Id. at *3 & n.2. 
  Judge Watford avoids deciding the legality of that gambit, but notes Hopkins is free to raise that issue on remand. Id. 
  County-hopping search warrants are common in NorCal: will be interesting to see how this challenge pans out.

How to Use: Agent Carlon could have easily obtained a (federal) warrant to search the phone based on Artis’ fugitive status. Instead, he bungled, and relied on an “evidence of crime” theory that didn’t show probable cause. 
  “Meh, close enough for government work,” the Feds pleaded on appeal. The government urged the Ninth to uphold the search warrant based on a “fugitive” theory not identified in the warrant application. 
  The Ninth was unimpressed. Judge Watford “reject[s] the government assertion that the warrant may be upheld” on this alternative “fugitive” basis: the government is stuck with the probable cause basis actually articulated in the warrant application. Id. at *5. 
  The Ninth's limitation on alternative search warrant theories in Artis is a useful rejection of a government dodge.   
For Further Reading: Judge Chhabria didn’t mince words, when describing this investigation. “[T]he whole string of errors embodied in these warrant applications militates against applying the good-faith exception. Indeed, although the above-described errors are the most egregious ones, they are not the only instances of sloppy, inappropriate law enforcement work.”

  For a more fulsome description of a very troubling case (including a French Poodle Sheriff analysis), see Judge Slams FBI for Improper Cellphone Search, Stingray Use, here

Alameda County Seal from 

French Poodle image from 

Steven Kalar, Federal Public Defender Northern District of California. Website at


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