1. US v. Orona, No. 17-17508 (5-10-19)(Hawkins w/M. Smith & Hurwitz).  The 9th affirmed a habeas grant in a Johnson AACA case, holding that an agg assault under Ariz Rev Stat 13-1203 is no longer a predicate COV felony under ACCA.  This result was compelled by precedent, Fernandez-Ruiz v. Gonzales, 446 F.3d1121 (9th Cir 2006)(en band). The govt argued that Voisine v. US, 136 S.Ct 2272 (2016) had implicitly overruled precedent. In Voisine, the Supremes held that a misdemeanor reckless assault could bar possession of a firearm. The panel did not buy the argument. Its reading of Voisine was that Congress explicitly included recklessness, which was not the case in the Arizona statute (and other statutes).  The case left Fernandez-Ruiz still controlling. And yet, the panel was somewhat grudging in its holding. It wrote that if it was writing on a “blank slate,” the panel might well follow other circuits and extend Voisine’s reasoning to the Ariz statute. The panel is bound.  The language though is a call to en banc or worse.  Troubling.

In the meantime, congrats to Keith Hilzendeger, AFPD, Az.

The decision is here:     

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/05/10/17-17508.pdf

2. US v. Ruvalcaba-Garcia, No. 17-50288 (5-10-19)(Per Curiam by Graber, Bybee, & Harpool). This is a significant Daubert expert case.  The defendant, unfortunately, lost because of “harmless error,” but the 9th found that the district court abused its discretion by failing its expert gatekeeper role under Daubert and Rule 702.

This is a 1326 case. The battle was waged over the sloppy government fingerprint expert.  Could a fingerprint expert be any sloppier than this one?  Doubtful. Basic protocols were not followed, CLE not taken, no membership in professional associations, no verification by another analyst, and points were not counted. Basically, the expert testified that the fingerprint on the underlying removal records were the defendant’s because he looked at them and he had lists of experience. The first trial hung. At the second trial, the expert was minimally better, using some protocols, and counting points, but various standards again were not complied with.  The court though did not perform its 702 Daubert function by finding that the witness was an expert. The court said it was up to the jury. Error! The court has to find that the expert’s methods were reliable. Several factors can be used, and the test is malleable, but the court still has to look at whether the reliability is scientific, and based upon sound techniques, peer reviews, rates of error,   and general acceptance in the scientific community.  The court did not do this here but passed off to the jury. The court does not have to always hold a Daubert hearing, but has to fulfill a gatekeeping function.  And yet, on the record, there was enough for reliability (33 years experience, and testifying in 250 trials). He employed some accepted methods, and explained his deviations.  It was enough. 

This is a good overview of Daubert, and the court’s gatekeeper function.  If you are challenging an expert, and the court is not performing a Daubert analysis, cite this case.  It is worth a careful read.

Kudos to Kara Hartzler, Fed Defenders of San Diego, for another hard fought appeal.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/05/10/17-50288.pdf

3. US v. Fultz, No. 17-56002 (5-10-19)(Marbley, Gould, & Nguyen). In the wake of Johnson II, which invalidated the “residual clause” of ACCA for vagueness, petitioner filed a successor challenge to his conviction for robbery, 18 U.S.C. § 2111, under the elements clause.  He also challenges the residual clause under 924(c)(3) — an issue pending in US v. Davis, 18-431, argued before the Supremes on April 17, 2019.

The 9th concludes that 2111 robbery is a COV under the elements clause.  As such, the residual clause is not applicable. The 9th so held based on its prior rulings finding carjacking and bank robbery COVs. The offenses involved the type of violence, even by intimidation, which makes them COVs. The same is true here for 2111 robbery. The language of the offense is the same. Petitioner’s attempts to distinguish these precedents were unavailing.

Valiant effort by Kara Hartzler, Fed Defenders of San Diego.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/05/10/17-56002.pdf