It is rare we summarize orders and amended opinions. This is worth noting for the dissent. Think of it as Rehaif taking flight.

US v. Price, No. 15-50556 (11-27-20)(Order & Amended Opinion). The 9th denies a rehearing en banc; the panel denies a rehearing; and an amended opinion and concurrence is filed. The panel affirms a conviction for knowingly engaging in sexual contact without permission on an international flight in violation of 18 U.S.C. § 2244(b). The majority finds that the “knowingly” is objective; not subjective. The concurrence disagrees and would find that knowingly is subjective but here the error is harmless. The panel concludes that Rehaif does not alter the conclusion.

In a dissent from en banc, Collins (joined by Ikuta and VanDyke for Parts I and II,  and Bumatay for for II(B)(1), argues that the 9th writes out “knowingly” from the statute. This is a missing element; it violates canons of construction; and it runs afoul of Rehaif by not applying “knowingly” to each element.

The lengthy dissent could be deemed addressed to SCOTUS. Keep an eye on this case; and use it to raise Rehaif applicability to all elements of charges.

Kudos to Jonathan Libby, FPD Cal central (Los Angeles) for this spirited appeal.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/11/27/15-50556.pdf

 US v. Rusnak, No. 17-10137 (11-25-20)(R. Nelson w/Berzon & Lee). Note:  This is an Az FPD appeal.

The 9th affirms convictions for child porn, denying arguments involving misstatements in the warrant, unfair enforcement of a discovery agreement, and prosecutorial misconduct, including “outside the scope of direct” cross examination and “toeing the line” in closing arguments. The 9th did vacant several SR conditions and remanded for clearing up the record.

The defense was that defendant was not living at home, and someone else (actually identified) had accessed, possessed, and distributed the child porn. The 9th recognizes that the 4th Circuit has allowed the raising of Franks challenge when an affiant who secured a search warrant makes contradictory statements at trial.  The 9th sidesteps the adoption here because of waiver.  The 9th further concludes there was no plain error.

As for the discovery agreement (part of practice in the Tucson division), the 9th finds no unequal application when it limited the defense witness (who was not disclosed) but allowed the agent’s undisclosed testimony. The 9th concludes that in weighing the testimony, the agent’s testimony was foreshadowed by the summary provided. The limiting of the wife’s testimony actually, to the 9th, benefitted the defendant.

Plain error occurred when the prosecutor expanded the scope of the wife’s direct, asking about “other visitors” to the house. This was beyond the agreement reached. However, the plain error was harmless given the evidence. The prosecutor also came close to misconduct in closing but did not step over in arguing inferences about who could access, and what was shown. The court’s limiting instruction cleaned it up.

Last, the court had to make specific findings for some of the SR conditions. Hence, a remand.

A spirited appeal by Molly Karlin, AFPD, Arizona (Phoenix) in a tough case.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/11/25/17-10137.pdf

Case o' the Week: Defense verklempt with Fletcher and hemp - Categorical analysis and marijuana prior convictions

  When properly applied, hemp reduces inflammation, reduces levels of pain, and reduces guideline offense levels.

United States v. Bautista, 2020 WL 6865043 (9th Cir. Nov. 23, 2020), decision available here.

 Players: Decision by Judge Fletcher, joined by Judges Schroeder and Hunsaker. Big, big win for Az. AFPD J. Ryan Moore, D. Arizona FPD.  

 Facts: Bautista was convicted in 2017 for the Arizona offense of “Attempted Unlawful Transportation of Marijuana for Sale.” Id. at *1. 

  A couple of years later Bautista was convicted in federal court of being a felon in possession of ammo. He was sentenced in 2019. The PSR bumped his offense level up for a previous “controlled substance offense” conviction (as defined in USSG § 4B1.2). See id. at *2. Id. (He did not object to this enhancement in the district court). 

  On appeal, Bautista challenged the sentence.

 Issue(s): “[ ] Bautista appeals a sentence imposed following his conviction of possession of ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Bautista contends that the district court erred in applying a recidivist sentencing enhancement based on his prior state conviction for attempted transportation of marijuana . . . . He contends that it was not a conviction for a ‘controlled substance offense’ under § 4B1.2(b) of the U.S. Sentencing Guidelines . . . . The Arizona statute under which Bautista was convicted included hemp in its definition of marijuana. However, in 2018, before Bautista's federal conviction, Congress amended the Controlled Substances Act to exclude hemp from its definition of a controlled substance. Thus, in 2019, when Bautista was sentenced in this case, the Arizona statute under which he had been convicted was overbroad and that conviction no longer qualified as a “controlled substance offense” under the Guidelines. Id. at *1.

Held: “At federal sentencing, the district judge was required to compare the elements of the state crime as they existed when Bautista was convicted of that offense to those of the crime as defined in federal law at the time of federal sentencing —that is, after the Agriculture Improvement Act removed hemp from the federal drug schedule. Because the federal CSA excludes hemp but . . . the Arizona Revised Statutes did not, the latter crime’s ‘greater breadth is evident from its text.’ . . . . Bautista's conviction is facially overbroad and not a categorical match for a ‘controlled substance offense,’ and the district court erred in applying the recidivist sentencing enhancement for a controlled substance. We conclude that the district court’s application of the six level recidivist enhancement was plain error. It was contrary to law and affected Bautista's substantial rights. . . . Because allowing this error to go uncorrected would “seriously affect the fairness, integrity, or public reputation of judicial proceedings,’ we exercise our discretion to grant relief.” Id. at *4.

 Of Note: Bautista was convicted of his Arizona pot offense in 2017. At that time, hemp was included in the federal definition. 

  Just last month, the Ninth applied the categorical analysis to the statute at the time of conviction. See Medina v. Barr, 2020 WL 6373434 at *6-*8 (9th Cir. Oct. 30, 2020). 

 After Medina, how did Bautista get the benefit of the categorial analysis at the time of his 2019 sentencing (after the federal statute excluding hemp)? Judge W. Fletcher explains that the Medina rule only applies to immigration cases – by contrast, in this “Armed Career Criminal Act context seen here” the analysis takes place at the time of sentencing.

   The Ninth probably meant in the “Career Offender” context (the definitional guideline that determines “controlled substance offense” for § 922(g)(1) offenses), but the general point holds: the timing of a categorical analysis depends on the context.  

 How to Use: Red flag: If your federal client has a marijuana prior (federal or state) you likely have action under Bautista (because previous few laws excluded hemp).

  Our federal Sentencing Resource Counsel are all over this issue – talk to an AFPD, and take a look at their memos if your client finds yourself in this fortunate situation.   

 For Further Reading: For a thoughtful piece explaining the Farm Bill of 2018 (and Senator McConnell’s advocacy for hemp), see “The Farm Bill, hemp legalization and the status of CBD: An explainer,” available here.  

 

Image of “What is hemp” from https://www.restorativecbd.com/what-is-hemp/

 

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

 

 

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US v. Bautista, No. 19-10448 (11-23-20)(Fletcher w/Schroeder & Hunsaker). Note: This is an Arizona FPD case.

This is a prohibited possessor case, with an enhanced recidivist sentencing. The 9th reversed and remanded, finding that the prior Arizona conviction for attempted transportation of marijuana under ARS 13-3405(A)(4) was overbroad and indivisible with respect to a generic “controlled substance offense” under USSG 4B1.2. The state statute includes hemp; the federal statute, 21 USC 801 et seq, as of December 20, 2018, excludes hemp. Thus, the federal guidelines cannot use the state offense as a recidivist enhancement for sentencings after December 20, 2018.

Congrats are extended non-categorically to Ryan Moore, FPD Az (Tucson) for this win. It is important.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/11/23/19-10448.pdf

Case o' The Week: Cop "Opens the Door". . . to Suppression - Ngumezi and Cop-Entry into Cars without P.C.

Fourth alive and well, at S.F. Shell . . .

United States v. Ngumezi, 2020 WL 6814674 (9th Cir. Nov. 21, 2020), decision available here.

Players: Decision by Judge Miller, joined by Judge Hunsaker and visiting D.J. Schlitz.

  Big win for ND Cal Appellate AFPD Steven Koeninger, with briefing help from (former) AFPD Jon Abel (now a U.C. Hastings Associate Prof).

 Facts: Ngumezi was legally parked, getting gas, at a San Francisco station )(pictured above). Id. at *1. [Ed. Note: Malik Ngumezi is a young black man].

  S.F. Police Officer Kolby Willmes saw the car had no plates, and decided to investigate. Id. In reality, Mr. Ngumezi had recently purchased the car and had a bill of sale affixed to the windshield. Id. [At that time, a lawful alternative to paper plates].

  Ngumezi declared that Officer Willmes opened the passenger side door without permission and asked Ngumezi for his license and vehicle registration. Id.

  Officer Willmes [who conspicuously did not activate his body camera] said he “did not remember” if he opened the door. Id.

  The officer learned Ngumezi did not have a driver’s license: an inventory search then produced a gun inside the car. Id.

   Ngumezi was charged with being a felon in possession of a firearm. The district court denied the suppression motion, and refused to conduct the requested evidentiary hearing.

  (Because this was the Northern District of California), the defense went through a stip facts trial to preserve the issue for appeal. Id. at *2.

 Issue(s): “On appeal, Ngumezi challenges only the denial of the motion to suppress . . . . His principal argument is that whether or not Officer Willmes had reasonable suspicion at the time he opened the door, opening the door and leaning inside constituted a search that violated the Fourth Amendment because it was not authorized by any exception to the warrant requirement.” Id.

  “The key facts are not disputed: Ngumezi says that Willmes opened the car door and leaned into the car, and Willmes does not specifically deny that that is what he did. We therefore must consider whether police officers who have reasonable suspicion sufficient to justify a traffic stop – but who lack probable cause or any other particularized justification, such as a reasonable belief that the driver poses a danger – may open the door to a vehicle and lean inside.” Id.

 Held: “We conclude they may not.” Id.

   “[We do not] see how courts could administer a test that would require them to distinguish between Willmes leaning into the passenger-side area of Ngumezi’s car and, say, an officer crawling into the back of a car to look under the seats. Instead, we apply a bright-line rule that opening a door and entering the interior space of a vehicle constitutes a Fourth Amendment search.” Id. at *3.

  “Nothing about this case calls for a remedy other than the typical remedy for a Fourth Amendment violation, which is the exclusion of evidence discovered as a result of that violation from criminal proceedings against the defendant.” Id. at *5 (internal citations and quotations omitted). 

Of Note: To the Ninth’s frustration, the government put all of its Fourth Amendment eggs in one appellate basket. The government complained that the Court should not “apply the exclusionary rule because the benefits of deterrence do not outweigh the social costs of suppression.” Id. at *5. 

The Hon. Judge Miller

Judge Miller makes short work of this pitch, explaining that the “flagrancy of the government’s conduct” is only relevant to the attenuation doctrine, but is not a free-standing basis for avoiding suppression. See also United States v. Garcia, 974 F.3d 1071, 1076-82 (9th Cir. 2020).

   Use Ngumezi to knock down the government’s boilerplate “flagrancy” argument when next it arises.

 

How to Use: [Ed. Note: the author of this memo litigated the suppression motion in district court]. While the Ngumezi Appellate AFPDs did a remarkable job, the government also helped to deliver this win. 

  Turn to this opinion for Judge Miller’s intellectually-honest (albeit exasperated) refusals to do the government’s work for it (on “forfeiture” of defense arguments, and on (non-asserted) theories of attenuation).                                            

For Further Reading: Mr. Malik Ngumezi filed a complaint against SF Police Officer Kolby Willmes, Star 1216, alleging that this was a race-based stop, charging failure to comply with the San Francisco Police Department body camera policies, and Fourth Amendment violations.

  The San Francisco Public Defender recently made public an important service that helps track these cop complaints. See “Copwatch” web page here. 

 

 

 

Image of SF Shell Station from https://gregology.net/2019/05/san-francisco-day-trip/

 Image of the Honorable Judge Miller from https://www.washingtonpost.com/politics/2019/02/27/dangerous-first-conservative-judge-installed-after-vetting-by-only-two-senators/ 

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

 

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US v. Robertson, No. 19-30237 (11-12-20)(Stearns w/Bybee & Collins). The appellant died while his case was on cert. The trial court, after his first trial had hung, found that the defendant had assets to help pay for counsel. The court had ordered him to reimburse CJA counsel. Does the obligation survive the appellant’s death, and dismissal of the charges? Can a defendant (appellant’s estate) still be ordered to pay CJA counsel reimbursement?  Yes, holds the 9th. Death is no excuse; dismissal does not relieve the obligation. Although his convictions are vacated; his restitution and special assessments refunded; still, even beyond the grave, he must pay CJA reimbursement. The 9th reasons that the obligation, via an order after a first trial hung, was not abated by an indictment’s dismissal. The CJA order is a final one, and it is beyond the application of the ab initio rule. So, things that are now certain: death, taxes, and CJA reimbursement.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/11/12/19-30237.pdf

US v. King, No. 18-50122 (11-6-20)(Korman w/Wardlaw & Hurwitz). Rehaif giveth and Rehaif taketh away. The defendant was convicted at a bench trial of being a prohibited possessor. The Supremes remanded, given Rehaif. The defendant argues the prosecution failed to produce evidence he knew of his status as a felon and his conviction should be vacated. The 9th recently rejected this “failure to prove an element” argument, characterizing the challenge as more like applying an erroneous legal standard in assessing guilt.  See US v. Johnson, 2020 WL 6268027 (9th Cir. Oct. 26, 2020). Johnson further held that harmless error review permitted looking beyond the trial record. A peek at the presentence report reveals that the defendant served prison sentences of over a year. Johnson controls here.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/11/06/18-50122.pdf

US v. Bacon, No. 18-50120 (11-5-20) (En Banc). What does the 9^th do when a trial court commits Daubert error? What is the remedy? The precedent for trial court errors, such as incorrect legal standards, was a bright-line new trial if non-harmless. This was to enforce FRE 702 and the gatekeeper functions. However, if the record is incomplete, should a panel be allowed to remand to see if the evidence could be admitted or precluded on other grounds? The 9^th concludes that an inflexible binary remedy is not appropriate. Each case – and possible error – may differ with the circumstances. The 9^th holds that when there is a “non-harmless Daubert error, the panel has discretion to impose a remedy ‘as may be just under the circumstances’.” (10). The 9^th may require a new trial sometimes; a limited remand in others. Daubert errors are remedied not by a special category, but under the usual appellate rules.

Prior caselaw that conflicts with this holding (requiring a remand) are overruled: Mukhar, Barabin II, and Christian.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/11/05/18-50120.pdf

Case o' The Week: Death, Taxes, and CJA Contributions - Robertson and CJA Contributions After Death

Ab initio, but not finito.

United States v. Carri Robertson, 2020 WL 6604323 (9th Cir. Nov. 12, 2020), decision available here.

Players: Decision by DJ Stearns, joined by Judges Bybee and Collins.  

Facts: Joseph Robertson was appointed an AFPD after being indicted for environmental crimes. Id. at *1. His first trial resulted in a hung jury and mistrial. Id. Assets revealed in that trial prompted the court to order CJA contributions. Id. at *2.

  Robertson was convicted at his second trial, lost in the Ninth, and sought cert.

  Robertson died while his petition was pending, and SCOTUS GVR’ed the petition. Id. at *2.

  On remand, the Ninth granted the motion of Carri Robertson (Robertson’s widow) vacated Joseph Robertson’s conviction and sentence ab initio, and directed refund of the amounts he had paid towards special assessments and restitution. Id.

  On remand the district judge, however, held that the CJA contribution order was not abated. Id.

   Widow Carri Robertson appealed. Id.

 Issue(s): “We consider whether vacating the indictment against a criminal defendant ab initio following his death during the pendency of a certiorari petition to the Supreme Court requires vacation of an order issued under the Criminal Justice Act (CJA), 18 U.S.C. § 3006A, to make payments to reimburse in part the costs of his defense.” Id. at *1.

  “Whether a CJA reimbursement order falls within the scope of the abatement of an indictment is a matter of first impression for this court.” Id. at *3.

Held: “Because a CJA reimbursement may be ordered in the absence of a conviction (after a mistrial, in this case) . . . it is not a part of the criminal proceeding that is extinguished by abatement ab initio. . . . . Id. at *4.

  “There is also heft to the argument that enforcing Robertson's CJA reimbursement order comports with the principle of finality. . . . [O]nly non-final matters . . . are abated because a defendant's death prevents the proceeding from reaching a conclusion. . . . Here, Robertson did not challenge this court's affirmance of the CJA reimbursement order when he sought certiorari . . . . Accordingly, the affirmed CJA reimbursement order is a final order not subject to abatement.” Id. at *5 (internal quotations and citations omitted).

 Of Note: The Ninth’s new rule is a bit of a head-scratcher. Whomever was entitled to restitution is out-of-luck when a defendant dies during a pending case, and the case is “extinguished by abatement ab initio.” But the debt for a CJA contribution survives? Visiting Mass. DJ Stearns announces this new Ninth Circuit rule, and tries to distinguish CJA contributions from restitution orders. See id. at *3.

One factor in this outcome appears to be that Robertson did not challenge the CJA contribution in his cert. petition. See id. at *5. Query whether there might be an exception to this new rule if the parties had kept the CJA contribution issue alive.

How to Use: To get to this new rule, the Ninth first rejected the widow’s challenge to the district court’s subject matter jurisdiction. Id. at *3. Along the way, it repeats some black letter law often helpful to the defense: “[I]t is familiar law that a federal court always has jurisdiction to determine its own jurisdiction.” United States v. Ruiz, 536 U.S. 622, 628 . . . (2002). Look to Robertson for a recent cite on the “j/x for its own j/x” proposition (particularly helpful when the Ninth is determining the legality of a sentence on appeal).

For Further Reading: Last week NorCal lost one of its legendary leaders: investigator Raymond McGrath. Raymond worked on the historic Irish extradition cases in the ‘80s, helping to defeat extradition orders and ultimately challenge the special terrorist courts of Northern Ireland. See article here; see also article here. 

Mr. Raymond McGrath

Raymond was inspired to professionalize investigations in human rights cases. He founded the Institute for International Criminal Investigations, which has trained over 200 people from 48 nationalities in the Hague. See article here. 

Raymond passed away after a brave, quarter-century battle with cancer. His courage and passion continues to inspire us all.  

  

Image of “ab initio” from https://datainnovationsummit.com/abinitio/

Image of Mr. Raymond McGrath from https://encore.org/purpose-prize/raymond-mcgrath/  

 

 

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

 

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Case o' The Week: Bacon Fried Old Expert Rule - Bacon and Remedies for Daubert Expert Error

Barabin burned by Bacon.   

United States v. Bacon, 2020 WL 6498258 (9th Cir. Nov. 5, 2020) (en banc), decision available here.

 Players: Decision by CJ Thomas, joined by Judges Paez, Berzon, Rawlinson, Callahan, Murguia, Hurwitz, Owens, Miller, Bade and Lee.   

 Facts: Bacon and his co-D, Ray, were charged with assault in a federal prison. See blog entry on Ray, available here (describing facts in greater detail). Before trial Bacon gave notice of an insanity defense and a shrink. The district court barred the insanity defense, and the defense mental health expert.

  The three-judge panel held on appeal that the district court abused its discretion in excluding the expert testimony. See United States v. Ray, 956 F.3d 1154 (9th Cir. 2020). The panel (reluctantly) remanded for the DJ to consider the expert again and for a new trial – regardless of whether the district court found the expert admissible. Id. at 1161. In a concurrence, Judge Watford complained about this outcome and criticized the older Barabin rule. Id.

  The case went en banc.

 Issue(s): “We voted to rehear this case en banc to consider what the proper remedy is on appeal when we conclude that a district court has erred under Daubert . . . ., by admitting or excluding expert testimony on one ground, but when we cannot tell from the record whether the admission or exclusion was nevertheless correct on other grounds.” Bacon, 2020 WL 6498258 at *1.

 Held: “Recognizing that there are different circumstances involved in every case, we conclude that a bright-line rule requiring a specific remedy is inappropriate. Instead, each panel should fashion a remedy ‘as may be just under the circumstances.’ 28 U.S.C. § 2106. The remedy may include remanding for a new trial or remanding for the district court to first determine admissibility, then requiring a new trial only if that admissibility determination differs from that in the first trial. We remand this case to the three-judge panel so that the panel may, in its discretion, determine the appropriate remedy in this case.” Id.

   “[A]pplying section 2106, we hold that when a panel of this Court concludes that the district court has committed a non-harmless Daubert error, the panel has discretion to impose a remedy as may be just under the circumstances . . . . Circumstances may require a new trial in some instances; circumstances may dictate a limited remand in others. Of course, the discretion of a panel is not unfettered. The normal rules of appellate review of evidentiary decisions still apply. And nothing in our decision removes Daubert’s important gatekeeping function. But our holding today restores Daubert errors to the usual realm of appellate review and remedy, rather than keeping them in a separate, special category.” Id. at *4.

 Of Note: There’s no good spin: this new rule is bad for the defense. CJ Thomas recounts the history of the old automatic-retrial rule, and the en banc battles during the last decade to overrule it. See id. at *2-*3. This “retrial” rule, that had been created in the civil context, was extended to criminal cases in United States v. Christian, 749 F.3d 806, 813-814 & n.4 (9th Cir. 2014).

There were good reasons for the old rule: the new approach of post-verdict analysis “does not protect the purity of the trial, but instead creates an undue risk of post-hoc rationalization. This is hardly the gatekeeping role the Court envisioned in Daubert and its progeny.” Id. at *2, citing Mukhtar v. Cal. State Univ. Hayward, 319 F.d 1073, 1074 (9th Cir. 2003).

  Unfortunately, however, the tide has shifted in the Ninth: this new Bacon rule gained the support of a unanimous en banc court, with nary a dissent.

 How to Use: It is a brave new world, for Daubert error on appeal, and there’s precious little guidance in Bacon to Ninth three-judge panels, on which remedy is appropriate. Don’t give up on retrial after Bacon: CJ Thomas makes it clear that that option is still on the table. Id. at *4.                                             

For Further Reading: See any interesting news, this weekend? 

  As election results sink in, time to start wondering about Biden’s appointments – and specifically, on the A.G. to replace Barr at the DOJ. For an interesting discussion of this horse race, see Meet the Contenders for Biden’s Cabinet, available here. 

 

 

Image of bacon from https://www.thekitchn.com/archive/2018/02/15

 

 

Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcal.fpd

 

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Case o' The Week: Of Trials and Tribulations - Lamar Johnson, Rehaif, and Review of Convictions After Trial

 The Ninth Circuit carefully limits its review to facts in the record, when considering a challenge to a conviction after trial.

 

 (Facts in the appellate record, that is).

  United States v. Lamar Johnson, 2020 WL 6268027 (9th Cir. Oct. 26, 2020), decision available here.

 Players: Decision by Judge Watford, joined by Judges Rawlinson and Wallace. 

  Hard-fought appeal by ND Cal AFPD Robin Packel.  

 Facts: The ND Cal. USAO refused Johnson a conditional plea, to preserve a suppression issue for appeal. See blog entry here, on first decision. 

At the stip-facts § 922(g)(1) bench trial, the government failed to prove that Johnson knew of his status of a convicted felon. 2020 WL 6268027, *2.

  The Ninth denied the appeal of the denial of the suppression motion.

  After Johnson filed a petition for cert., the Supreme Court G.V.R.’ed the case back to the Ninth on the Rehaif issue. Id.

 Issue(s): “[ ] Johnson’s argument is best understood not as a challenge to the sufficiency of the evidence, but rather as a claim that the district court applied the wrong legal standard in assessing his guilt —specifically, by omitting the knowledge of status element now required under Rehaif.” Id. at *3. “The central issue we must decide is whether, in assessing the fourth prong of the plain-error standard, we may consider the entire record on appeal or only the record developed at trial. If we are limited to considering the trial record alone, as Johnson urges, his case for reversal appears strong.” Id. at *4.

 Held: “[W]e think it is appropriate in this case to review the entire record on appeal—not just the record adduced at trial—in assessing whether Johnson has satisfied the fourth prong of plain-error review.” Id. 

  “[ ] [W]e see no basis for limiting our review under the fourth prong to the record adduced at trial. In a case like this one, in which the error under review involves omission of an element of the offense, the record on appeal will often not disclose what additional evidence the government would introduce to prove an element that it had no reason to prove during the first trial. But if the record on appeal does disclose what that evidence consists of, and the evidence is uncontroverted, we can think of no sound reason to ignore it when deciding whether refusal to correct an unpreserved error would result in a miscarriage of justice.” Id. at *5. “In this case, the record on appeal contains additional evidence the government would introduce to prove that Johnson knew of his status as a convicted felon. And given the overwhelming and uncontroverted nature of that evidence, Johnson cannot show that refusing to correct the district court's error would result in a miscarriage of justice.” Id.

  “We conclude that such evidence will ordinarily preclude a defendant from satisfying the fourth prong of plain-error review when challenging the district court's failure to require the government to prove that the defendant knew of his status as a convicted felon.” Id.

 Of Note: Amicus curiae flagged United States v. Atkinson, 990 F.2d 501 (9th Cir. 1993) (en banc). In Atkinson, the Ninth held that a defendant who proceeded to a bench trial did not need to move for a judgment of acquittal to preserve a challenge to the sufficiency of the evidence.

  Judge Watford avoid Atkinson by re-characterizing Johnson’s challenge, changing it from “sufficiency of the evidence”, to a “claim that the district court applied the wrong legal standard in assessing his guilt.” Id. at *3. 

  Whether convincing or not, this distinction will likely prove critical in future “missing element” challenges.

How to Use: Johnson salvages trial conviction based on facts outside of the trial record. That grim new approach does arguably have an internal limitation. Judge Watford writes that this approach applies in cases where the record on appeal reveals the necessary, and uncontroverted fact. Id. at *5 (emphasis added). If there’s any dispute over the fact fitting the missing element, this Plain Error Fourth Prong gambit should not save the conviction.                                

For Further Reading: Rehaif challenges suffered a double-whammy this week. In United States v. Singh, Judge Milan Smith rejected a mens rea Rehaif challenge – cementing “knowingly” as the mental state required for the prohibited-person status. See 2020 WL 6304898 (9th Cir. Oct. 28, 2020), decision available here.

 

  

Image of “Error” from https://www.padtinc.com/blog/windowsupdate/

 

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

 

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