1.  US v. Miller, No. 17-50338 (3-20-20)(Rakoff w/Watford & Bennett). The 9th affirmed convictions for fraud despite a clear error in the jury instruction and shenanigans with the US Atty’s Office in Cal Central. The defendant embezzled $300,000 from the company of which he was president and managing partner. His defense was that he intended to pay it back (hence a shady loan). He objected to the standard jury instruction for wire fraud, 18 USC 1343, which required intent to “deceive or cheat.” He was prescient, as the Supreme Court held in Shaw v. US, 137 S. Ct 462 (2016), that “a scheme to defraud” requires deceit and intent to deprive (hence cheat). Shaw controls and overrules prior precedent. Alas, despite an objection, the 9th still found the error to be harmless.

As for shenanigans, the 9th expressed its dismay at the role of an AUSA who had a personal interest in the case (his father was a victim). The prosecutor called the FBI and seemingly pulled strings and took an interest in the matter. DOJ eventually reassigned to another district, but the prosecutor’s role was unseemly, and violated ethical and professional standards. However, the misconduct did not violate due process nor require a dismissal. Neither does a romantic relationship between the lead agent and a prosecutor from the recused Cal Central US Atty’s office require dismissal.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/03/20/17-50338.pdf

2. US v. Walker, No. 18-10211 (3-20-20)(Bybee w/Melloy & N. Smith). The 9th affirms an ACCA sentence. An argument on appeal was that the Sixth Amendment required a jury, and not the court, to find three separate convictions. The 9th appreciated the argument but held that precedent (Grisel) allowed a sentencing judge to determine when the dates on the certified convictions occurred, and thus were separate. Mathis, 136 S. Ct. 2243 (2016) only proscribed judges from looking at underlying facts in a categorical analysis of a predicate’s elements.

Spirited argument by Peggy Sasso, AFPD, with Cal E (Fresno).

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/03/20/18-10211.pdf

3.  Smith v. Davis, No. 17-15874 (3-20-20)(en banc)(Bea majority; dissent by Berzon).

Tough loss for David Porter, AFPD, with Cal E (Sacramento). Sitting en banc, the 9th creates a new test for habeas equitable tolling. The 9th holds that a petitioner must show (1) exceptional circumstances that prevented his filing; and then (2) that he acted diligently during the remaining period.

Berzon, with others, dissenting, argues that the rejection of a “stop clock” test flies in the face of legislative intent and Supreme Court precedent (Holland). The majority substitutes a judge’s determination of diligence — the time needed to file a petition after an equitable tolling hurdle — for the intent of Congress. The majority, hostile to equitable tolling, creates another test.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/03/20/17-15874.pdf