Sanchez v. Davis, No. 16-99005 (4-22-21)(Gould w/Callahan & Bea). AEDPA deference results in affirmance of the denial of petitioner’s claims. The panel held the IAC claims for failure to investigate a jailhouse informant fails because of lack of prejudice; and that counsel was not ineffective in failure to present mitigation evidence. The proportionality claim also fails.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/04/22/16-99005.pdf

US v. Do, No. 19-30138 (4-19-21)(McKeown w/Watford & Rothstein).

This appeal is whether, in a road rage case on the Warm Springs Reservation in Oregon, using the Assimilative Crimes Act (ACA), 18 U.S.C. § 13(a), rather than using a federal assault statute, was proper. The 9th holds it was not and reverses the conviction.

The 9th explains that ACA is to fill in gaps in federal criminal law in enclaves. A two-part test is used: does a federal statute apply? And if so, whether the federal statute precludes application of the state law. Here, the federal assault statute would apply to the conduct (firing six shots at a car as a road rage incident escalated). The federal statute precludes assimilation of state law because the federal statute and the state statute seek to punish approximately the same behavior; the federal statute reveals an intent to occupy the field of assault; and assimilating the state statute would effectively rewrite an offense defined by Congress.

Interesting analysis of the “approximate” harm. The statutes need not be exact; nor analogous. Form is not elevated over substance. Here, the state statute deals with assaultive conduct with a dangerous weapon, as does the federal statute. As for rewriting, the federal statute requires an intent to do bodily harm, while the state statute does not. The federal statute has a max of 10 years; the state statute has a max of 5 years. Without the intent to do bodily harm, which is arguable as the shots were in the air, the government could only get simple assault (six months max). The government admitted at argument it wanted the higher state max. This is not a good enough reason to end run the federal statutes.

Congrats to AFPDs Elizabeth Daily and Gerald Needham, Oregon FPD (Portland). 

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/04/19/19-30138.pdf

 

US v. Koziol, No. 19-50018 (4-13-21)(Bade w/Bea & Drain). A Hobbs Act conviction for extortion can be based on a sham threat. The extortion here – against a well-known entertainer and the manager—was fabricated, but threats of exposure of sham salacious or violent acts can support the conviction. The 9th finds any instructional error by the district court stating that damage can be to a reputation is harmless. Harmless too were several evidentiary errors related to the opinions on the truthfulness of witnesses. The 9th does remand for resentencing. The district court erred when it failed to use the guideline 2X1.1 which applies to “attempts” where all the steps were not completed.

Another hard-fought appeal by Carl Gunn, CJA. 

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/04/13/19-50018.pdf

US v. Ghanem, No. 19-50278 (4-12-21)(Boggs w/M. Smith & Murguia).  Venue when extradited for acts outside the US is the crux of this appeal. This appeal involves convictions after an undercover sting operation for illegal international arms-dealing (and other counts). The government extradited the defendant from Greece on an arms export control act charge originating in Cal Central. He landed in the ED NY. Then he was sent to Cal Central (LA) and faced a superseding charge for 2332g charge (dealing in surface to air missiles). This carries a mandatory minimum 25-year sentence. He pled guilty to all charges but this one and went to trial. The defendant waived his venue challenge by failing to bring in during pretrial motions. The government though asked for and got an erroneous jury instruction on venue. He was entitled to a correct instruction. This was not harmless. The conviction is vacated and remanded.

This appeal deals with the first impression issue of when a person is deprived of liberty under 3238. This statute sets venue for when an offense takes place outside the United States.  The test is where the defendant is first brought, upon arrest, and connected with the offense. The government argues it wasn’t ED NY for 2332g; he was brought back on charges unconnected with 2332g. The defendant argues it was. The defendant was right. The opinion goes through the analysis, and prior precedent in this circuit and cases in other circuits. It looks to the “in connection with” test that has developed, even if not brought when first landed, and not just when the charge is indicted. The test is a factored one and looks to the centrality of the charge to the arrest, the lapse in time, and government conduct. The 9th does not use the indictment centric test (developed by the 5th). Here, the government’s venue instruction, adopted by the court, that stated the foreign arrest was irrelevant was erroneous. The defense instruction was rejected which left it up to the jury if there was a foreign arrest connection.  This was not harmless, as the government conceded the events took place outside the US; the investigation centered on the surface to air missiles, and that the government tried to manipulate venue.  

Congrats to Ben Coleman, CJA, for the win.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/04/12/19-50278.pdf

US v. Aruda, No. 20-10245 (4-8-21)(Per curiam w/Wardlaw, Gould, & Owens). Who says the 9th is without “Compassion”? In a Compassionate Release appeal, under the First Step Act, the 9th holds that the USSG’s 1B1.13 is not an “applicable policy statement” for such motions filed by a defendant. The USSC’s policy statements, which sets forth various limiting factors, are for BOP’s motions; they may inform the district court’s discretion, but do not control. The 9th vacates and remands the district court’s denial because the court’s denial was based on the motion not meeting the factors in the policy statement.

The 9th’s decision recognizes that the First Step Act creates another means of compassionate release. It can be for “extraordinary and compelling reasons.” This is left undefined.  It expanded the use of such release. The Act does state that motions should be consistent with any policy statements by the Sentencing but there are none: the Sentencing Com’n, lacking a quorum, has not issued policy statements. Thus, courts can determine what are “extraordinary and compelling” reasons.

The 9th’s opinion joins five other circuits.

The 9th also holds that 3582(c)(1) motions are reviewed for abuse of discretion.

The importance of this per curiam opinion is the emphasis on the First Steps Act’s intent to expedite and expand release and that the Guidelines policy statements restrictions on such motions bind only the BOP motions and are not binding on defendant’s motions.

The opinion is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/04/08/20-10245.pdf