1. US v. Begay, No. 14-10080 (8-19-19)(Nelson w/Clifton; dissent by N. Smith). Note: This is an Az FPD Case. Is second-degree murder a categorical “crime of violence”? The 9th holds it is not. As such, although the murder conviction is affirmed the 924(c) is reversed, and so is mandatory restitution. 

The majority’s holding that second degree murder is not a COV rests on a categorical analysis. The focus is on recklessness. The 9th concludes that recklessness, even gross recklessness, is not intentional. The example is firing into a house or car. The majority finds the Supreme Court’s recent decision in Voisine (misdemeanor recklessness) specifically refers to only that offense and explicitly does not foreclose other circuits’ approaches to other offenses.

The conviction is affirmed. Under plain error, the 9th found no error in not requiring the prosecution to prove not acting in the heat of passion” beyond a reasonable doubt. The defense was “someone else shot.” 

Dissenting, N. Smith is incredulous that second degree murder is not a COV (“I feel like I am taking crazy pills.” p. 18). Calling it an “unbelievable result,” contrary to Supreme Court precedent, and the 9th’s own analysis — no categorical flights of fancy—the dissent finds the opinion defies “reality and logic.”  All of this occurs in the first two paragraphs. This is followed by 13 pages of how wrong the majority must be. The dissent’s point ultimately is that malice aforethought acts as the intent for murder, and that a depraved heart with its degree of recklessness makes this a COV. 

Congrats to Edie Cunningham, AFPD, FPD Az (Tucson) on a hard fought and hard argued win.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/19/14-10080.pdf

2. US v. Shayota, No. 17-10270 (8-19-19)(O’Scannlain w/Schroeder & Rawlinson. Concurrence by O’Scannlain). This is a confrontation clause issue. The 9th allows introduction of a witness’s prior civil deposition testimony after the witness subsequently invokes 5th amendment rights against self-incrimination. The defendant argued that his right to confront was violated because the government, which introduced the civil testimony (attended by defendant’s lawyers) could have granted immunity to the witness and thus making him available. The 9th finds a tension in the confrontation issue and a lack of clarity in precedent.  However, the 9th sidesteps a definitive ruling, holding that in this case, a fraud conviction, any possible error is harmless. 

O’Scannlain wants to call attention to the sidestepping and pens a concurrence. The concurrence is a call, bordering on a chastisement, for the circuit courts to examine the historical context of privileges, availability, and the confrontation clause. He believes that various precedents need to be harmonized, or re-examined; that unavailability possibly could be narrowed; or redefined.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/19/17-10270.pdf

3.  US v. Cuevas-Lopez, No. 17-10438 (8-19-19)(Friedland w/Clifton; Ikuta dissenting). The 9th applies the “single sentence” rules of USSG 4A1.2(a)(2) to 2L1.2(b)(2) and (b)(3). Simply put, two 3.5 year sentences, imposed to run consecutively, handed down at the same proceeding, counts under the new 1326 offense enhancement guidelines as a 7 year sentence (an enhancement is imposed if a sentence is greater than 5 years). The 9th so finds through various allusions, omissions, justifications, and assuming what the Commission intended. The 9th is loath, and states as much, to foster a Circuit split with the 5th, which recently found a single sentence.

Dissenting, Ikuta would find that the plain language requires the convictions to be considered under 5 years. She employs a simple but powerful analysis: the offense guideline refers to “a conviction” and not “the sentence.” Chapter 4 refers to “the sentence.” The Commission in amending the Guidelines could have made this plain but did not.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/08/19/17-10