Sansing v. Ryan, No. 13-99001 (5-17-21)(Watford w/Callahan; Berzon dissenting). Note: Az FPD CHU case. The 9th affirmed denial of a capital habeas petition. AEDPA cast its deferential shadow over the claims. The petitioner raised a Ring claim (jury not judge capital sentencing) and various IAC claims regarding mitigation. The Ring claim argues the Arizona Supreme Court applied the wrong standard. It didn’t matter for this, or the other claims, because under AEDPA deference, the state supreme court’s finding of any error being “harmless” was reasonable. The 9th used the AEDPA/Chapman analysis (deference) rather than Brecht (actual finding of prejudice). Dissenting, Berzon argues that the state supreme court used a wrong legal standard for Ring prejudice; thus, Brecht was the proper standard. The petitioner had raised sufficient evidence of drug usage to allow a jury to find impairment.

This was a tough case. Jennifer Garcia, AFPD CHU, was valiant in her representation.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/05/17/13-99001.pdf

US v. Silveira, No. 18-56509 (5-13-21)(Collins w/Baldock & Berzon). This a habeas petition alleging IAC in a plea. The 9th affirms the denial of the petition. The petitioner alleges his plea to money laundering arising from illegal sports betting was not knowing and voluntary. Petitioner said that his lawyer did not explicitly define what “proceeds” meant but stated that the money was tainted. The petitioner argues the funds obtained by the gambler or bettor were not unlawfully obtained. However, the 9th concludes, petitioner received the funds knowing they were for payment of a debt and those were proceeds were from an illegal activity. The 9th also found there was no prejudice even had the lawyer provided an inadequate definition of proceeds.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/05/13/18-56509.pdf

1. US v. Nishie, No. 19-10405 (5-12-21)(Nelson w/Bybee; Schroeder concurring). This case deals with the Wartime Suspension of Limitations Act (WSLA). It arises from alleged fraud, bribery, kickbacks, and conspiracy in directing defense contracts to a Korean company. The appeal from dismissal of counts ends with a reversal, but not before the panel, in an issue of first impression, does grammar and statutory contortions. The contortions focus on the word “which” in a 187-word long sentence. The majority concludes that “which,” which restricts applicability, modifies contracts only with a nexus to a specified conflict, and thus a statute of limitations; the other offenses of fraud and property are suspended if there is authorized conflict somewhere. The concurrence would look to the amendment history: the contract category was enacted in 1944 and tied to the restrictive clause and then never amended. There is no need to fire off the statutory canons.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/05/12/19-10405.pdf

2. US v. Brown, No. 19-50250 (5-12-21)(Collins w/Baldock & Berzon). The 9th reverses and remands the denial of a suppression motion under Terry. The officer contacted the defendant and others in a motel parking lot, suspecting nefarious activities. So far so good. The questioning was consensual. The defendant was seized though when the officer told him to stand up and turn around. Terry was still okay. However, the officer reached into the defendant’s pocket and pulled out a package of heroin. The 9th held this violated Terry and Sibron (Terry’s companion case) because there was not a pat down or frisk for weapons. The officer just searched a pocket, which exceeded the limited scope.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/05/12/19-50250.pdf

Branham v. Montana, No. 19-35829 (5-6-21)(Murphy, Bennett, & Miller). The 9th affirms the dismissal of a habeas claim as time-barred. The 9th holds that a proceeding in the Sentence Review Division of the Montana Supreme Court is akin to collateral review. The petitioner had filed a state pcr 11 months after the time for a cert writ had expired. About two weeks later, he filed a petition with the Sentence Review Division. When that was denied, six months later, he filed federal habeas. If the petition is treated like a direct review, petitioner had a year after its denial. If treated as a pcr, he had 23 days, which expired before his habeas. The 9th treats it like a pcr because the State treats it like a pcr, statutes refer to “final” decision in an appeal, and the deadlines are more like a pcr.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/05/06/19-35829.pdf

1.  US v. Peterson, No. 19-10246 (5-3-21)(Rawlinson w/Hunsaker & VanDyke). The 9th affirms the denial of a withdrawal from a guilty plea. The 9th reiterates that a Court does not personally have to explain the elements of the offense. The Court can reference the indictment or plea or the factual basis and even rely upon defense counsel. The 9th distinguishes precedent where none of those things occurred or the matter was confused. The 9th further explained, for the statute here of possession of sexually explicit photos of a minor, that “knowingly” applies to both the visual depiction of a minor and the engagement in sexually explicit conduct. The plea colloquy here adequately covered the elements. The 9th affirms the denial of suppression of the cell phones. Any illegality in the initial seizure of the forensic images from the cell phones by the state parole officer was cured by a subsequent issuance of a warrant. The parole officer need not have gotten a warrant to seize the phones as the parolee has diminished expectations of privacy. A warrant was required, and gotten, after parole was revoked. Other challenges were waived.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/05/03/19-10246.pdf

2. US v. Singh, No. 18-50423 (5-3-21)(Parker w/Bumatay; Watford concurring and dissenting). The convictions were for using a hawala operation to launder money, conspiring to operate an unlicensed money transmitting business, and operating such a business. The hawala operation took drug proceeds from Canada to the United States and then to the Mexican cartels. The 9th affirmed the convictions, finding sufficient evidence to prove that the hawala operation acted to conceal, acted to transfer funds on behalf of the public (as defined even though private), and had the purpose to launder money. The majority looked at the steps and deceptions to conceal. Watford dissented on this point. He agreed that steps were taken to conceal but there was not sufficient evidence to show the defendant was part of the conspiracy with the purpose to launder money. The 9th all agreed the defendant was operating an unlicensed money transmitting business, with a public component. The 9th found no confrontation error or abuse of discretion in limiting cross of a cooperating witness. There was also no plain error for the amendment of the charge when, in the prosecutor’s closing argument, the prosecutor argued that the defendant was operating his own hawala operation rather than part of a larger network.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/05/03/18-50423.pdf