US v. Furaha, No. 20-10063 (3-25-21)(M. Smith w/Wallace & Lasnik). In an issue of circuit first impression, the 9^th holds that a prior conviction under a 924c can be a “controlled substance offense” for a U.S.S.G. 2K2.1(a)(4)(A) enhancement (prohibited possessor) because the statute is divisible, and a modified categorical approach can be used. The defendant – a prohibited possessor of a firearm -- argued that his prior 924c conviction is overbroad as it includes simple possession. The government agreed. However, the 9^th finds 924c to be divisible here as the prior charge and jury instructions require the court to specify the COV or drug trafficking offense that is the predicate. The plea agreement, further, demonstrates that the defendant pled guilty to two drug trafficking offenses. The 9^th thus follows the 8^th Circuit, US v. Williams, 926 F.3d 966 (8^th Cir. 2019).

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/03/25/20-10063.pdf

Walden v. Shinn, No. 08-99012 (3-12-21)(Thomas w/Bybee & Ikuta). This is an Az FPD-CHU case. The 9^th affirmed the district court’s denial of capital habeas relief. Under AEDPA deference, the 9^th upheld the state supreme court’s finding no error in denying severance (noncapital victims with capital victim); the 9^th also upheld the finding that the identifications were not a result of impermissible suggestive police procedures. Petitioner’s claim of McKinney nexus (error to require nexus for mitigation) was not cognizable on appeal as he failed to raise it in state court. IAC claims withdrawn could not be resurrected through “relating back” to timely claims. The 9^th also found there was undue delay. AEDPA also foreclosed relief on introduction of “gruesome” crime scene photos.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/03/12/08-99012.pdf

1. US v. Lucero, No. 19-10074 (3-4-21)(Bumatay w/Bade & Marquez; partial dissent by Bade). The 9th deals with the Clean Water Act. The 9^th remands for a new trial. The winning issue concerns jury instructions and the definition of knowingly discharging pollutants “into water.” The complex statutes and definitions can define water as being dry land, provided it meets the definition of wetlands or tributaries. The jury instructions fail to make clear that the defendant had the mens rea necessary when he put dirt on land that can be considered “in water.” The 9th also held that the requirement of “into waters of the United States” is jurisdictional. Bade’s dissent would require mens rea to attach to “into waters of the United States.”

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/03/04/19-10074.pdf

2.  US v. Rundo, No. 19-50189 (3-4-21)(per curium w/Fernandez, Paez, & Tigar; partial concurrence and dissent by Fernandez). Is the Anti-Riot Act unconstitutional? Ah, not the January 6th insurrection but in charges brought against the “Rise Above Movement” (RAM). RAM is a white supremacy nationalist militia group that engaged in violent acts at political rallies in the spring of 2017. The district court dismissed the charges as unconstitutionally broad under Brandenburg v. Ohio, 395 US 444 (1969), which gives First Amendment protection to advocacy of force except where it is directed to inciting or producing imminent lawless action and likely to incite such action. The 9th reverses the dismissal, finding most of the Act not unconstitutionally overbroad. The actions unconstitutionally overbroad — organizing and urging —can be severed. Fernandez, dissenting, would not find those two acts overbroad.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/03/04/19-50189.pdf

US v. Olson, No. 19-16591 (2-22-21)(Per curiam w/Thomas, Schroeder, & Berzon; concurrence by Thomas; concurrence by Berzon). This is an interesting opinion: does the right to effective counsel apply to plea negotiations before a formal charge? The 9^th holds that circuit precedent binds it to reluctantly say “no”. The panel and concurrences conclude this is not a good vehicle to overturn precedent because counsel was not ineffective. The 9^th though should be on the lookout.

This case arises when petitioner received a “target letter” for a fraud investigation. Petitioner was appointed counsel, who received an offer of the low end of the guidelines for tax evasion. There was a recommended offer of 30 months. The government refused to share discovery with counsel, and counsel stated that she could not advise her client without having reviewed the evidence. The offer was withdrawn. The petitioner was indicted. With new counsel, he eventually pled and received a 48-month sentence.

Petitioner filed a 2255, alleging IAC. He claimed he was not informed of the plea. Counsel provided notes, emails, and a declaration affirming the petitioner was notified. The district court denied petitioner’s motion to vacate because the 9^th Circuit in US v. Hayes, 231 F.3d 663 (9^th Cir 2000)(en banc) adopted a bright-line rule that the Sixth Amendment right to counsel only attaches upon initiation of formal charges. The dissent warned about gamesmanship. Other circuits have raised similar concerns.

The 9^th discusses the role of plea negotiations, and how they frequently occur before formal charges. Frye extended IAC claims to post-indictment plea negotiations. However, there was no IAC here on the merits.

Thomas, concurring, writes that in his view, there is a Sixth Amendment right to counsel when a “functional equivalent of an indictment exists;” and that Hayes does not foreclose such a result.

Berzon, concurring, writes that she “reluctantly” concurs in the judgment. She believes Hayes imposes a far more stringent test for the Sixth Amendment right to counsel than is set by the Court. She would have the 9^th reconsider Hayes at “the first opportunity.”

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/02/22/19-16591.pdf