US v. Perez-Silvan, No. 16-10177 (6-28-17)(O'Scannlain w/Christensen; Owens concurring). The 9th affirmed a +16 enhancement for a Tennessee conviction for agg assault. The 9th goes through the Tennessee statute and the mens rea required for recklessness, finding that there is a knowingly component. The 9th also looks at the divisibility.

Owens, concurring, urges the Sentencing Commission to continue to simplify the guidelines, applauding the recent reworking of 2L1.2.  "I continue to urge the Commission to simplify the Guidelines to avoid the frequent sentencing adventures more complicated than reconstructing the Staff of Ra in the Map Room to locate the Well of the Souls. Cf. Almanza-Arenas v. Lynch, 815 F.3d 469, 482-83 (9th Cir. 2016)(en banc)(Owens, J., concurring); Raiders of the Lost Ark (Paramount Pictures 1981)(19).

Kudos to Myrna Beards of Tucson for a spirited appeal.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/28/16-10177.pdf

US v. Calvillo-Palacios, No. 16-10039 (6-28-17)(O'Scannlain w/Christensen; Owens concurring). The 9th affirms a +16 enhancement under 2L1.2 for a Texas agg assault as a crime of violence.  The 9th states that it has repeatedly held that threat and assault statutes necessarily involve the use of violent physical force.  The 9th notes that other circuits differ, finding that statutes which criminalize causation of bodily injury are not crimes of violence. See footnote 5 (1st, 2d, 4th, 5th, and 10th).  Be aware of the Circuit split.  Owens concurs and refers to his concurrence in Perez-Silvan.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/28/16-10039.pdf

US v. Strickland, No. 14-30168 (6-26-17)(Kozinski w/Fisher & Watford). This is another "categorical" decision.  The 9th holds that a conviction for third degree robbery under Oregon law is not a violent felony for ACCA purposes.

In Johnson, 135 S. Ct 2551 (2015), the Court found the residual clause of clause of 924(e)(2)(B) constitutionally vague.  The government argues though that robbery would be a predicate offense under the "force" clause.  The 9th will have none of it.  Oregon State cases do not require physical force for third degree robbery.  Thus, under the categorical approach, it is not a force predicate.

Congrats to Elizabeth Daily and Steve Sady of the Oregon FPD for its amicus brief.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/26/14-30168.pdf

Case o' The Week: First Impression, Depression - Cervantes and Cali "Mandatory Supervision" Searches

  Jaywalk, stopped, searched, hotel room key found -- then room secretly searched without a warrant or reasonable suspicion of crime.

   Jaywalking is dangerous.

United States v. Steven Cervantes, 2017 WL 2622776 (9th Cir. June 19, 2017), decision available here.

The Honorable Judge Paul Watford

Players: Decision by Judge Watford, joined by Judges McKeown and Trott. 

  Hard-fought appeal by CD Cal AFPD Michael Tanaka.

Facts: Cervantes pleaded guilty to felony drug and counterfeiting charges in California. Id. at *1. He received a split sentence under the 2011 California “Realignment Act.” That suspended the second part of the term: a period called “mandatory supervision.” Id. Those on “mandatory supervision” are supervised in the same manner as those on probation. Id. Cervantes agreed to mandatory terms of supervision, including a warrantless, suspicionless search condition. Id. at *2. 

  After Cervantes was released from his initial custody, he was stopped for jaywalking. The officer learned Cervantes was on probation (actually, mandatory supervision), searched him, and found a hotel room key. Id. Without a warrant or any suspicion of criminal activity, officers searched the hotel room and found counterfeit currency. Id. 

  Cervantes was charged federally, the suppression motion was denied, and Cervantes was convicted after a stipulated facts bench trial. Id.

Issue(s): “On appeal, Cervantes renews his contention that the warrantless, suspicionless search of his hotel room violated the Fourth Amendment. As it did below, the government defends the legality of the search primarily by relying on the search condition imposed during Cervantes’ term of mandatory supervision.” Id. “Our main task is to determine whether the search of Cervantes' hotel room was in fact authorized by the clear and unambiguous terms of his search condition; if so, the search will likely be deemed reasonable.” Id. at *4.

Held: “Although the issue is admittedly a close one, for Fourth Amendment purposes we think mandatory supervision is more akin to parole than probation. Id. at *3.

  “[L]ike parole, mandatory supervision is more akin to imprisonment than probation is to imprisonment, . . . and the State’s interest in supervising offenders placed on mandatory supervision is comparable to its interest in supervising parolees. California courts concur: They have held that a split sentence under § 1170(h)(5) is akin to a state prison commitment, and that mandatory supervision is therefore more similar to parole than probation. . . . Given the similarities between mandatory supervision and parole, and the State’s comparably weighty interest in supervising offenders placed on both forms of supervision, we conclude that the Fourth Amendment analysis in this case is governed by the line of precedent applicable to parolees.” Id. at *4 (internal quotations and citations omitted).

  “No Fourth Amendment violation having been shown, the district court properly denied Cervantes' motion to suppress the evidence found in his hotel room.” Id. at *6.

Of Note: In the ’06 Samson decision, the Supremes created the great Fourth divide for those on supervision: probationers versus parolees. See id. at *3 (discussing Samson decision). 

  In Cervantes, Judge Watford queries whether to slot California “mandatory supervision” folks into the (more protected) “probation” category, or the (anything goes) “parole” category. This Ninth question of first impression breaks bad. The Court concludes that Cali “Mandatory supervision” is more akin to “parole” (with the very limited Fourth Amendment protections due parolees). 

  A disappointing outcome with broad impact, given the number of defendants affected by California Realignment.

How to Use: Even a parolee (or someone on “mandatory supervision") has some rights to Fourth Amendment reasonableness protections. Was it reasonable for officers to weasel their way into this hotel room, with no suspicion of criminal activity, while Cervantes was not even in or near the room? Judge Watford expressly avoids deciding that issue because it wasn’t briefed: a potential factual twist for another day. Id. at *5.

                                               

For Further Reading: In the first year after Realignment, over 560 California felony offenders were sentenced to split terms, per month. 

  For an interesting discussion on split sentences after Realignment, and links to data on its use - broken down by California county, see briefing here. 

Image of the Honorable Judge Paul Watford from United States Court of Appeals for the Ninth Circuit - United States Court of Appeals for the Ninth Circuit, Annual Report, pg 11, Public Domain, https://commons.wikimedia.org/w/index.php?curid=48278795

Image of jaywalking man from https://www.thestar.com/content/dam/thestar/news/gta/2013/09/05/data_shows_torontonians_love_to_jaywalk_and_sometimes_pay_the_price/jaywalking_man.jpg

Steven Kalar, Federal Public Defender. Website at www.ndcalfpd.org

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US v. Cervantes, No. 15-50459 (6-19-17)(Watford w/Trott & McKeown).  The 9th holds that a state (California) sentence of "mandatory supervision" is closer to parole than to probation.  As such, a search of a defendant's hotel room without a warrant and without suspicion is authorized under the defendant's supervision conditions and under the Fourth Amendment. 

What led to the search?  The defendant was cited for jaywalking (!).  He told the officer he was at a hotel, shared a room with his girlfriend, and he had the hotel key with the room number with him.  The police then went to the hotel, searched his room, and found counterfeit currency.  You see what trouble a jaywalking citation can cause (or a tip?).

The defendant was on mandatory supervision. The conditions included suspicionless and warrantless search or person, residences, and premises.  His expectations of privacy were sharply diminished as the 9th held the status was closer to parole than probation.  Samson, 547 US at 857. The 9th then found such a search reasonable.  For these purposes, the 9th had an interesting discussion on the distinction between residence and premises.  For a search of a residence, precedent requires that probable cause exists that the parolee resides at the place.  This is to protect third parties' privacy.  Premises is a looser term, and refers to a building or parts of a building.  This would include a temporary hotel room.  The 9th found the premises controlled by the defendant given the circumstances.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/19/15-50459.pdf

Case o' The Week: Catch a Tigar by the Tale - Sixth Amendment Structural Error and Limits on Defense Closing Arguments

  There are many rights that can be stomped upon, with convictions

salvaged by that damnable “harmless error.”

  And there are some, that cannot.  

United States v. Brown, 2017 WL 2509230 (9th Cir. June 12, 2017), decision available here.

Players: Important decision by N.D. Cal. District Judge Jon S. Tigar, joined by Judge Paez. 

 "Vigorous" dissenting opinion by Judge Bybee. Id. at *5.

Facts: Daniel Brown was a member of a closed online bulletin board where members shared child porn. Id. at *1. He was charged under 18 USC § 2251(d)(1), which prohibits knowingly advertising or giving notice of the availability of child porn. Id. 

  Before closing arguments, the government moved the court to prohibit the defense from arguing that this particular closed board did not constitute “advertising” or “giving notice.” Id. at *2. Over defense objection, the district court agreed and prohibited that defense argument. Id. Brown was convicted and sentenced to fifteen years. Id. at *1.

Issue(s): “Brown challenges his conviction on the ground that the district court violated his Sixth Amendment right to present his defense to the jury when it precluded him from arguing the government had not met its burden to show that the . . . board involved a “notice” or an “advertisement,” given the closed nature of the bulletin board.” Id.  

Held: “By refusing to allow Brown to present his defense in closing argument based on the closed nature of the . . . bulletin board, the district court “violated [Brown's] fundamental right to assistance of counsel and right to present a defense, and it relieved the prosecution of its burden to prove its case beyond a reasonable doubt. . . .  A deficient closing argument lessens the Government’s burden of persuading the jury, and causes the breakdown of our adversarial system . . . . 

  Since preventing a defendant from arguing a legitimate defense theory constitutes structural error, we must reverse Brown's conviction accordingly.” Id. at *5 (internal quotations and citations omitted).

Of Note: What do the majority jurists, Circuit Judge Paez and District Judge Tigar, have in common? 

  Many decades of trial court experience. 

Hon. District Judge Jon S. Tigar

  Both men served on California county courts for years, and both jurists have served as federal district court judges. By contrast, dissenting Judge Bybee’s first judicial post was to the Ninth. 

  It is admittedly too simplistic to attribute the split in votes solely to the jurists’ courtroom experience. Nonetheless, the wisdom of the trenches does flavor the opinion. See, e.g., id. at *4 & n.5 (explaining the “simple” process of permitting a defense factual argument to the jury, then denying a post-conviction Rule 29 against defense challenge. “That is exactly what criminal trial judges have always done.”) 

  Finally, as a practical matter, it won’t exactly be easy for us to argue the factual technicalities of “advertising” and “notice” to a jury horrified by the child porn images that they’ve just viewed in trial. There’s a good chance that courtroom reality occurred to the veteran trial judges.

How to Use: “Structural error:” an increasingly rare, and ever sweet, phrase. How strong was the AUSA’s case in this prosecution? Who cares? It just doesn’t matter -- when counsel is prevented from presenting a legitimate defense in closing argument, the conviction is reversed – period, full stop. Id. at *5. 

  Great stuff for an appeal, but potent medicine for the district court, too. When an AUSA presumes to constrict the scope of your closing argument, remind the Worthy Opposition and the District Court that limits on this core Sixth Amendment right mean a Ninth-mandated “Do Over” should the jury convict.

                                               

For Further Reading: The Supreme Court is thinking about Structural Error (rarely good news). Weaver v. Massachusetts involves a defense counsel who whiffed on objecting to a closed courtroom during trial.

  (NB: Closed courtroom + timely defense objection = structural error reversal).

   Circuits are split on whether the defense must first show Strickland ineffectiveness before earning a structural error reversal. For an interesting piece on this intriguing conundrum, see “Supreme Court to Decide if One Structural Error Cancels Out Another, available here.

Image of the Honorable District Judge Jon Tigar from http://www.cand.uscourts.gov/assets/images/judges/Judge_Jon_S_%20Tigar.colorresized.jpg

Image of “Don’t Tread on Me” flag from http://finfeetwing.org/images/rattle_n_carolina_gadsden.jpg

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

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US v. Hernandez, No. 14-50214 (6-15-17)(Per Curiam  by Schroeder, Bybee & Smith).  Interesting opinion reversing a conviction, but not for the usual reasons.  The 9th affirmed that "willfully" in this gun case was not specific intent and there was sufficient evidence to support the verdict.  However, the introduction of evidence of other crimes made it likely that the jury convicted on other acts rather than the one at issue, thus a vacation of the conviction.

This was a 22(a)(3) case, Illegal Transportation of Firearms.  The defendant bought firearms in Arizona, took them to California, and sold them.  There were a lot of weapons.  The defendant argued that "willfully" in the statute required specific intent.  The 9th held that the term here "is not subject to the heightened awareness used in some tax and antistructuring laws." (9). Just as with the gun licensing requirement in Bryan v. US, 524 US 184 (1998), the defendant knew his act, here transporting guns into California, was somehow unlawful.  There was sufficient evidence to support the verdict and the instruction was not error.  The defendant could not have been doing innocent acts that were somehow a snare for illegality.

Yet, the conviction was reversed.  The government, in its zeal to prove state of mind, and knowledge of illegality, introduced all sorts of evidence about other gun transportation and future crimes.  The jury instruction given about knowledge was broad about knowledge of illegal acts.  The 9th held that "the broad jury instruction, combined with the evidence of the commission of later crimes and the government's argument to the jury, resulted in significant prejudice to [the defendant]." (15)  This is a good case to check the government's use of all sorts of bad act evidence to try to prove knowledge.

Congrats to Alexandra Yates of the FPD Ofc, Cal Central (L.A.).

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/15/14-50214.pdf
 

US v. Kleinman, No. 14-50585 (6-16-17)(M. Smith w/Ebel & N. Smith).  The 9th affirms the convictions of defendant charged with various marijuana trafficking offenses.  The defendant lives in a state that has medical marijuana law.  He argued that the congressional appropriations rider for medical marijuana should bar prosecution.  The 9th said "no" because various counts were outside of the medical marijuana protection.  For example, two counts involved trafficking with individuals outside of the state.  This preserves the conviction.

Of note is the 9th stating that though the prosecution began before the rider passed, it could be considered because the case was on appeal.

Interesting issue as to an instruction related to jury nullification.  The 9th found error in the court's jury instruction stating that there was no such thing as "valid jury nullification." The court gave the instruction because of the protests outside the courthouse during the trial.  The jury instruction was error because it implied that the jury would be punished if it nullified.  The jury can be told to follow the law; it cannot be chastised for nullification because the acquittal would be valid.  Alas, although it was erroneous, it does not get a reversal because there is no prejudice as there is no right to nullification.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/16/14-50585.pdf

US v. Brown, No. 15-30148 (6-12-17)(Tigar w/Paz; Bybee dissenting). The ability to present a defense, to make an argument that the government has not proved the essential elements, is fundamental to the Sixth Amendment.  The 9th reverses a conviction, and remands, because the district court precluded the defendant from arguing that he had not posted a "notice" or an "advertisement" seeking or offering child porn on a "closed" restricted computer illegible board.

The government prosecuted the defendant under 18 U.S.C. § 2251(d)(1) for advertising child porn. The defense argument was that any notice on the computer bulletin board was not advertisement because of the closed restricted nature of the circle of users on Dark Moon. The court held that as a matter of law, posing on closed bulletin boards was advertisement.

On appeal, the 9th parsed the cases, especially US v Grovo, 826 F.3d 1207 (9h Cir. 2016), which held, on appeal, that posting on a closed bulletin board could be considered advertisement.  The 9th distinguished the case, finding that sufficient evidence to support a verdict, or to hold legally that posting on a closed bulletin board could be advertisement, is different from arguing to the jury that the government failed to prove that such posting was advertisement.  This is a jury question.  The preclusion prevented he defendant from presenting a case.

Dissenting, "vigorously ", Bybee argues that Grovo controls and that the majority invites a jury nullification argument.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/12/15-30148.pdf

US v. Ubaldo, No. 14-50093 (6-9-17)(Rawlinson w/ O'Scannlain & Callahan). This appeal arises from illegal importation of weapons into the United States.  The 9th affirms the convictions.

Concerned about the illegal importation of weapons from the Philippines, the FBI undertook an undercover sting operation.  Eventually the defendant arranged for weapons to be sold, procured from the military, to undercover agents posing as buyers from various Mexican cartels.  The weapons were shipped from the Philippines to China and then onto Los Angeles.

On appeal, the defendant raises various legal and evidentiary challenges.  As to be expected, the 9th found sufficient evidence that the defendant's conduct, as a conduit and facilitator, caused the weapons to flow naturally.  There was also sufficient evidence for a "but for" test.

The 9th affirmed the denial of a Franks challenge to the search warrant, the denial of suppression, dismissal, and mistrial motions based on bad faith, failure to preserve evidence, and discovery violations.  The jury instructions adequately covered the elements necessary for a finding of guilt.  The evidentiary rulings were not erroneous.

An interesting issue was the analysis of the extraterritorial application of 18 U.S.C.  § 922(1) and 22 U.S.C. § 2778(b)(2). The 9th applied the recent Supreme Court test for applicability of a statute in RJR Nabisco, Inc. v. European Community, 136 S. Ct. 2090, 2096 (2016). The Court clarified that courts must presume that US statutes do not apply to foreign conduct.  A two-step framework is used to see if the presumption is overcome. The presumption is treated as a substantive canon of construction.

Seeking to establish extraterritorial application, the court must determine if the presumption against application has been rebutted by clear and affirmative indications in the statute.  If a determination is made that the statute does not apply extraterritorially, the court must determine whether the case involves domestic application of the statute.  If the presumption is rebutted in step one, a court does not proceed to step two.

Here, the 9th had no trouble holding a clear indication of extraterritorial application as the statutes concern illegal importation.  By its nature, importation requires conduct outside the country and involves foreign countries. Legislative history also supports the clear intent.

This test is important to those challenging conduct outside the US.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/09/14-50093.pdf

Case o' The Week: Government "Nails" It - Ubaldo and "But For" Causation for Section 2(b) convictions

  For the want of a nail the shoe was lost, as was the horse, the rider, the message, the battle, and the kingdom.

  Attenuation that resonates, for Mr. Ubaldo.

United States v. Ubaldo, 2017 U.S. App. LEXIS 10284(9th Cir. June 9, 2017), decision available here.

Players: Decision by Judge Rawlinson, joined by Judges O’Scannlain and Callahan.

Facts: FBI agents ran a sting focused on weapons illegally imported from the Philippines. Id. at *4. Special Agent Charles Ro met with Ubaldo, purchased one sniper rifle, then purchased AK-47s, grenades, and plastic explosives from Ubaldo and his co-Ds. Id. at *7. A co-D helped federal agents load the purchases in a shipping container in the Philippines–the agents filled out the Bill of Lading as “furniture.”

  The agents later rendered the guns safe, removed the grenades and explosives, then the agents coordinated the transport of the container to California. Id.

  Among other offenses, Ubaldo was charged with 18 USC § 2 (the Federal “Principals” statute) and 18 USC § 922(l), causing the illegal importation of weapons into the United States. Id. at *8.

  Agent Ro had texted the defendants during this sting, but had only preserved responses – not his texts sent. Id. at *10. The agent lost his phone, and the government was unable to find his “sent” texts. Id. at *10.

  The court denied the motion to dismiss based on these lost texts, but gave a curative instruction that the jury was permitted to infer that the texts “contained information against the government’s interest.” Id.

  Ubaldo was convicted after trial.  

Issue(s): “Defendants assert that the evidence was insufficient to support their convictions because they were not involved in the actual importation of the weapons; selling the weapons was not the but-for cause of the later importation; they did not direct the agents to ship the items; and the government agents broke the chain of causation because government agents cannot illegally import weapons. Id. at *21.

Held: “Viewing the evidence in the light most favorable to the government, this claim is meritless.” Id. at *21. “[U]nder § 2(b), Defendants were not required to take an active role in actually transporting or shipping the illicit weapons to the United States. See 18 U.S.C. § 2(b). Rather, the jury could convict Defendants if they “knowingly” and “willfully” caused the weapons to be transported to the United States. Id. Indeed, Defendants could be held criminally responsible for harms that flowed naturally or were a direct result of their conduct. . . . Under the governing law, Defendants’ role was sufficient to support their conviction under § 2(b). . . . The government presented evidence that [a co-defendant] earned thousands of dollars by procuring high-powered weapons and selling them to an undercover agent, who informed him that he would smuggle the guns into Mexico through California. The government also presented evidence that Ubaldo arranged the meetings for weapons sales, put Agent Ro in contact with a Philippine customs official who could help smuggle the weapons out of the country, and was aware that the weapons would be smuggled into Mexico via California. Considering those facts, a reasonable jury could find that Defendants knowingly and willfully caused illicit weapons to be imported into the United States because the importation of the weapons flowed naturally from their conduct.” Id. at *21-*22 (citations omitted).

Of Note: The defense relied on the Supreme’s Burage decision, arguing they were not the “but-for” cause of the importation. Id. at *22-*23. After all, the FBI handled the shipping, the defendants didn’t direct the agents to ship the guns to the U.S., and – as a matter of law – the agents could not violate the substantive statutes. Id. at *23.

  All mattered not, opined the Ninth: “Agent Ro would not have been able to import the weapons into the United States if Defendants never sold them to him.” Id. at *23.

  A disappointing and broad reading of Section 2(b).  

How to Use: In a brief analysis, Judge Rawlinson finds no error in the refusal to dismiss because of Agent Ro’s failure to preserve texts. Id. at *26. It’s another disappointing holding, but note that the district court did give an adverse inference instruction. At minimum, one remedy to emulate, when texts mysteriously go missing.

                                               

For Further Reading: Guess how many U.S Attorneys have been nominated to fill a nation full of vacancies? 
  (Odds are, you guessed too high). See “Where are the United States Attorneys?,” NYT, available here.  

“For the want of a nail” from http://static.tvtropes.org/pmwiki/pub/images/ForWantOfANail_1375.jpg

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

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