Two opinions today -- the Ninth Circuit affirmed the grant of a judgment notwithstanding the verdict to a federal-court defendant charged with destroying bank records, and also affirmed the denial of a California state prisoner's habeas petition.  Also noted is a grant of en banc rehearing in a case involving an IAC claim involving the failure to challenge a sentence imposed under California's three-strikes law.

1.  United States v. Katakis, No. 14-10283 (NR Smith with Berzon and Collins (D. Ariz.)) --- The Ninth Circuit affirmed the grant of a posttrial motion for judgment of acquittal, holding that the evidence presented at the entire trial was insufficient to sustain the defendant's conviction for obstruction of justice under 18 U.S.C. § 1519. 

The government suspected that the defendant and his business partner were rigging bids at foreclosure auctions.  The government subpoenaed his bank records, which led the defendant to try to erase the hard drives on four computers using software called DriveScrubber.  The government's investigation revealed email that was not on these computers, so it indicted the defendant for obstruction of justice under 18 U.S.C. § 1519, and bid-rigging under 15 U.S.C. § 1.  (The jury convicted on bid-rigging, and he did not appeal that conviction.) 

The indictment was written in such a way that the government had to prove actual deletion of the emails, which meant that it had to present expert testimony about how information is deleted from a computer hard drive.  (The details are discussed in the opinion.)  The government's expert explained how these emails could have been "double-deleted," while the defendant's expert explained that this "double-deleting" process did not work as the government's expert said it did, and that in any event he could not find the emails the government alleged that the defendant had deleted in the place where the government's expert said they would be found on the defendant's computers.  In its rebuttal case, the government's expert agreed with the defendant's expert.  Thus, "by the time of its closing argument, the government's primary theory of the case had collapsed."  The jury convicted on the obstruction count, but the trial judge granted the defendant's posttrial written motion for judgment of acquittal.

Under § 1519 and the government's theory here, the entire trial record had to contain sufficient evidence to allow the jury to conclude that the defendant actually deleted the emails.  (Review is of the entire trial record because of the procedural posture of the Rule 29 motion filed in the district court.)  Once the government's expert retracted his initial theory of the case and agreed with the defendant's expert, however, no reasonable juror could conclude that the defendant had used DriveScrubber to irretrievably remove the incriminating email from the computers.  The government articulated what it characterized as a reasonable inference to sustain the guilty verdict, but the panel disagreed that those inferences were logically supported by the evidence.  There was no evidence from which the jury could conclude that DriveScrubber had operated in the manner that the government was relying on to show actual deletion.  (Indeed, in a footnote the panel suggested that this failure undermined the mens rea element of the crime as well.)  The panel was concerned that the government's evidence of bad motive would lead the jury to overlook the gaps in the evidence of actual deletion.  Nor, in light of how most email clients work, does simply pressing the "delete" key create liability under § 1519; the message does not disappear, but simply moves from one folder to another.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/08/31/14-10283.pdf

2.  Creech v. Frauenheim, No. 13-16709 (Paez with Tashima and Block (EDNY)) --- The Ninth Circuit affirmed the denial of a California state prisoner's § 2254 habeas petition, holding that the trial evidence was sufficient to sustain the convictions for assault with a firearm and felony child endangerment, and that the sentencing procedure complied with Cunningham v. California, 549 U.S. 270 (2007).

This case involves an episode of domestic violence.  Angry that his father-in-law was trying to keep him away from his wife and children, the petitioner shot at his wife and children while they were inside her father's home.  He loaded the shotgun with birdshot, and said "shooting through things... wasn't his intent."  Nevertheless, his wife's stepsister and stepmother heard glass shattering at the time of the shooting.  Dueling experts testified at trial about whether the birdshot was able to penetrate glass or human flesh.  The jury convicted the petitioner of multiple counts of assault with a firearm, shooting at an inhabited dwelling, and felony child endangerment.  The sentencing judge exercised his discretion under California's determinate sentencing scheme to impose the upper term on some of the counts, applied firearm enhancements, and ran some sentences consecutively for a total sentence of 31 years and 4 months.

The evidence was sufficient to sustain the convictions for assault and child endangerment.  Under California law, once the defendant has "attained the means and location to strike immediately," he has the present ability to injure required for the assault convictions, even if he were armed only with birdshot.  These facts easily supported both the assault and child-endangerment convictions.

After Cunningham v. California, in which the California determinate sentencing scheme was found to violate the rule of Apprendi v. New Jersey, the state legislature amended the scheme to provide that the choice of sentences at the upper, middle, or lower terms was within the judge's discretion.  The California Supreme Court later upheld this amendment as satisfying the requirements of Apprendi.  See People v. Sandoval, 161 P.3d 1146 (Cal. 2007).  The state appellate court's decision to affirm the petitioner's sentence in light of Sandoval was not unreasonable.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/08/31/13-16709.pdf

3.  Daire v. Lattimore, No. 12-55667 --- On Friday the Ninth Circuit granted a California state prisoner's petition for en banc rehearing in a case involving the alleged failure to present mitigating evidence at a hearing under People v. Superior Court (Romero), 917 P.2d 628 (Cal. 1996), which allows a judge to impose a sentence outside of California's three-strikes sentencing scheme based on mitigating evidence.

The three-judge panel's opinion is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/03/19/12-55667.pdf