US v. Velazquez, No. 19-50099 (6-23-21)(Paez w/Melgren; Bade dissenting). The 9th vacates a conviction and remands for prosecutorial misconduct in closing argument. This was a drug importation case with a “blind mule” defense. The majority summarizes the holding nicely: “During closing argument, the government compared the reasonable doubt standard to the confidence one needs to “hav[e] a meal” or “travel to . . . court”—without worrying about the “possib[ility]” that one will get sick or end up in an accident. Velazquez claims that this improper argument, and the district court’s failure to cure it, caused him prejudice. We agree.” (4).

Dissenting, Bade concedes the prosecutor’s comments were “unhelpful” and “potentially misleading.” However, she states the comments were taken out of context and the argument did not “infect” the trial unfairly. She would find any error harmless in light of the “overwhelming” record of guilt.

“No argument” that Carl Gunn, CJA, deserves congrats for the righteous win. 

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/06/23/19-50099.pdf

Dickinson v. Shinn, No. 20-15175 (Bade with Tallman and Bybee) [Ed. note – This is an Arizona FPD case.] –- The Ninth Circuit affirmed the denial of an Arizona state prisoner’s § 2254 petition, holding that his claim of ineffective assistance of counsel relating to an erroneous jury instruction was not “substantial” under Martinez v. Ryan, 566 U.S. 1 (2012), such that the procedural default of that claim during state postconviction proceedings could be excused.

The petitioner was tried in an Arizona state court for attempted second-degree murder stemming from an altercation with a friend in which he attempted to run the friend down with his truck.  The jury was instructed that it could convict if it found that the petitioner intended to inflict serious bodily injury or to kill.  This is an incorrect statement of Arizona law, but defense counsel did not object.  The jury convicted, and the petitioner was sentenced to 14 years in prison.  On direct appeal, the court held that the instruction was incorrect but that the petitioner did not show that his trial was fundamentally unfair, and so affirmed the conviction.  Postconviction counsel did not raise any claim regarding defense counsel’s failure to object.

In federal court, a magistrate judge appointed counsel for the petitioner and recommended granting relief on the claim of IAC for failing to object to the instruction.  The district judge, however, rejected that recommendation.  The panel affirmed, rejecting two theories of prejudice under Strickland.  First, the panel said that the loss of a more favorable standard of review on direct appeal is not the kind of prejudice that counts under Strickland for assessing the outcome of the trial.  Second, the panel said that because there was overwhelming evidence of the petitioner’s intent to kill, an objection to the jury instruction did not present a reasonable likelihood of a different outcome at trial.  Thus, the panel concluded, the defaulted IAC claim was not “substantial,” and the district court correctly denied the claim as procedurally defaulted.

Kudos to AFPD Molly Karlin for forcing a 35-page opinion on something that the court didn’t find “substantial.”

The opinion is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/06/22/20-15175.pdf

US v. Parlor, No. 30269 (6-21-21)(Bress w/Miller; Berzon dissents). This opinion concerns three firearm enhancements in sentencing a prohibited possessor. It illustrates the Rube Goldberg nature of connections, especially when it comes to “relevant conduct.” The enhancements were for the number of firearms; stolen firearms; and connection with drug trafficking. The majority finds no error in applying the enhancements.

In so ruling, the majority finds that nearly three month interval between the charged firearms (in a controlled buy) and firearms found upon arrest were a tight enough connection. Listing a firearm as stolen is sufficient evidence for an enhancement. And, drug trafficking is found because the firearms were near drug paraphernalia (baggies, scales). The small amount of drugs does not discount the connection. Last, the 9th found no plain error in the standard of review (preponderance rather than “clear and convincing”) because substantial rights were not affected, the sentence not doubled and was capped at the stat max, and counsel stated the standard was correct.

Berzon, dissenting, argues that the commentary of the Guidelines “strongly suggests” that illegal possession of additional firearms, by themselves, does not trigger relevant conduct. There was no evidence of a common scheme, or connection. Many months lapsed between the two firearms. The court abused its discretion by relying on one line of hearsay in the PSR without assessing its reliability. The line was from a CI. He traded guns for drugs and bought drugs in the past. The CI told this to the agents and the agents relayed it to the PO. Defense counsel objected when the court indicted it formed a basis for relevant conduct. The court should have held a hearing.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/06/21/19-30269.pdf

US v. Charley, No. 19-10133 (6-11-21)(Bea w/Cardone; Bumatay concurring). Note:  This is an AZ FPD case (and win). The 9th vacated convictions for assault and remanded. The defendant raised self-defense in her striking her boyfriend with a rebar. In support, she called witness about his prior recent assaults. The prosecutor, in rebuttal, brought up specific violence roughly two years old with other family members. On appeal, the 9th held such evidence to be inadmissible under FRE 404(a)(character) and 404(b)(other acts). Possibly the door was opened for reputation or character under FRE 405, but the specific instances were really for propensity and there was no tie for 404(b).

The opinion provides a useful overview of 9th precedent for prior assaults. The precedent, notably US v Bettancourt, 614 F.2d 214 (9th Cir. 1980), states that prior assaults are rarely permissible under 404(b). Such acts are more often spontaneous and quick rather than deliberative and carefully thought out.

The 9th affirmed the conviction for false statements to the FBI. The defendant had lied, even after warned that such falsehoods could be criminal.

The concurrence questioned whether 9th precedent, which cautions that prior assaults can rarely be used for intent, is too rigid.

Congrats to AFPD Molly Karlin, FPD Az (Phoenix)for the win. Kudos to AFPD Susan Anderson for fighting against admission and making the record.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/06/11/19-10133.pdf

US v. Harris, 19-30202 (6-9-21)(McKeown & Paez; Graber dissenting). Appealing the sentence on a sexual exploitation conviction, the 9th vacated and remanded. The 9th held that “making a list” and being proximity of the child did not support enhancements for the defendant being a “leader” or being a “guardian.” The defendant, with an intellectual disability and a personality disorder, was the boyfriend of the abused child’s mother, a co-defendant. The co-defendant mother admitted the abuse, but did not say that the defendant forced her or made her.  He made a list of people he would like to have sexual intercourse with, which included the child. But a list is not a directive to the co-defendant. The defendant had moved in with the co-defendant, but he never took care of the child; nor was he left alone with the child.

Under these facts, the district court’s finding an enhancement for a “leader” under USSG 3B1.1(c) and a “guardian” under 2G2.1(b)(5) was clear error. The 9th discusses US v. Avila, 95 F.3d 887 (9th Cir. 1996) and US v. Whitney, 673 F.3d 965 (9th Cir. 2012) which hold that facilitation or even a central role in the offense differs from leading.

As for the guardian enhancement, the 9th concludes the defendant never had parent-like authority and never acted a parent.

Dissenting, Graber finds the record sufficiently supports the district court’s decision. Graber stresses the sealed evidence.

Congrats to Matt Kinghorn, Fed Defender Services of Idaho. This is a good opinion explaining the two enhancements.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/06/09/19-30202.pdf

 

US v. Henderson, No. 19-30209 (6-3-21)(Callahan w/Christen; Rakoff dissenting). See below regarding this SR and Apprendi case (Keith Hilzendeger acts occasionally as a “guest” commentator). 

Adhering to circuit precedent, the Ninth Circuit held today that there is no right under Apprendi v. New Jersey, 530 U.S. 466 (2000), to a jury trial upon revocation of supervised release where the revocation sentence would make the total term of imprisonment for the crime (including the initial term) exceed the statutory maximum.  A divided panel said that United States v. Haymond, 139 S. Ct. 2369 (2019), did not implicitly overrule circuit precedent that foreclosed the argument.

Judge Rakoff, sitting by designation from the Southern District of New York, dissented.  Vigorously.  His dissent is worth a read.  He questions the majority’s deployment of stare decisis rules and would rule in the defendant’s favor on the merits of the 6A challenge.

To quote from the opinion:

Patrick Lawrence Henderson appeals his fifteen-month sentence for violating the terms of his supervised release, arguing that it violates his Fifth and Sixth Amendment rights because it extends his incarceration beyond the maximum term of imprisonment for his underlying conviction, without findings of fact proved to a jury beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466 (2000). However, Henderson’s argument is based on the plurality opinion in United States v. Haymond, 139 S.Ct. 2369 (2019), and Justice Breyer’s controlling concurring opinion did not adopt the plurality’s position. Thus, Haymond did not overrule or undermine our prior opinion in United States v. Purvis, 940 F.2d 1276 (9th Cir. 1991), which held a term of supervised release may extend beyond the statutory maximum for the underlying substantive offense. Nor does Haymond hold that the right to jury findings proved beyond a reasonable doubt recognized in Apprendi extends to a revocation of supervised release hearing. Indeed, as the dissent concedes, when district courts revoke supervised release, the new sentences they impose are treated, for constitutional purposes, “as part of the penalty for the initial offense,” Johnson v. United States, 529 U.S. 694, 700 (2000). Neither our circuit nor any of our sister circuits has adopted or endorsed Henderson’s argument that the terms of imprisonment and the terms of reimprisonment must be aggregated and may not exceed the maximum term of the statute of conviction. Accordingly, we affirm the district court’s sentence.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/06/03/19-30209.pdf

  

US v. Holiday, No. 20-50157 (5-27-21)(M. Smith w/Ikuta & Steele). “Bad search but harmless” is the bottom line for the 9th. The defendant was convicted of 7 bank robberies and three attempts; the police had him on video. In an unrelated incident, police received notice that a man was hitting a child in a blue Jaguar.  The car was registered to the defendant’s home. The police went there, and pushed open the door (a search, as conceded by the government). They caught sight of the defendant and his wife. The body cam also filmed his shoes – which matched the shoes of the robber. The 9th rejected the government’s contention it was an emergency exception. Under the test in US v. Snipe, 515 F.3d 947 (9th Cir. 2008), the gov’t’s acts must be (1) objectively reasonable for an immediate need to help; and (2) manner and scope was reasonable to meet the need. Further, DV cases do not create a per se exigent emergency. Here, the police had reason to think the child was not in the home, and the emergency was taking place in the Jaguar, not the home. The bad search was harmless, though, because of the other independent evidence (flight video, clothing, DNA). The 9th also rejected other issues, such as admission of the chase video, the length of sentence, a contention that a Hobbs robbery was not a COV (barred by precedent).

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/05/27/20-50157.pdf

US v. Lopez, No. 19-50305 (5-21-21)(Murguia w/Boggs; M. Smith partial concurrence & partial dissent). Davina Chen, SRC, sent this news flash about this case – it is important as it greatly expands “safety valve.” As Davina writes: “[T]he Ninth Circuit has held that our clients are not rendered ineligible for Safety Valve relief from mandatory minimums unless they have ALL three of the items listed in 18 U.S.C. § 3553(f)(1).  So, for example, even if he or she has a prior 3-point offense (C) or a prior 2-point violent offense (B), still eligible so long as s/he doesn’t have more than 4 criminal history points, excluding 1 point offenses (A).  The variations and opportunities are ENDLESS.

SO, make sure to ask for your safety valve proffers even if your clients have 3-pointers or crimes of violence in their history!!  Preserve this argument!

And, for those of you in the 9th Circuit who may not have been raising this argument, I’m sorry-not-sorry to ask you to look at your cases final within the last year to see if your client might have been safety-valve eligible.

As the 9th writes in interpreting the First Step Act’s expansion of “safety valve,” “and” means “and.”

Title 18 U.S.C. § 3553(f), commonly called the “safety valve,” allows a district court to sentence a criminal defendant below the mandatory-minimum sentence for certain drug offenses if the defendant meets the criteria in § 3553(f)(1) through (f)(5). In 2018, Congress amended one of the safety valve’s provisions: § 3553(f)(1). See First Step Act of 2018, Pub. L. No. 115-391, § 402, 132 Stat. 5194, 5221. Section 3553(f)(1) focuses only on a criminal defendant’s prior criminal history as determined under the United States Sentencing Guidelines. See generally 18 U.S.C. § 3553(f)(1). As amended, § 3553(f)(1) requires a defendant to prove that he or she “does not have” the following: “(A) more than 4 criminal history points . . . (B) a prior 3-point offense . . . and (C) a prior 2-point violent offense.” Id. § 3553(f)(1)(A)–(C) (emphasis added).1

As a matter of first impression, we must interpret the “and” joining subsections (A), (B), and (C) under § 3553(f)(1). If § 3553(f)(1)’s “and” carries its ordinary conjunctive meaning, a criminal defendant must have (A) more than four criminal-history points, (B) a prior three-point offense, and (C) a prior two-point violent offense, cumulatively, before he or she is barred from safety-valve relief under § 3553(f)(1). But if we rewrite § 3553(f)(1)’s “and” into an “or,” as the government urges, a defendant must meet the criteria in only subsection (A), (B), or (C) before he or she is barred from safety-valve relief under § 3553(f)(1). Applying the tools of statutory construction, we hold that § 3553(f)(1)’s “and” is unambiguously conjunctive. Put another way, we hold that “and” means “and.”

M. Smith, concurring and dissenting, argues the majority in saying “at least two points” rewrites the statute. He would say that “two points means two points.”

CONGRATS to Michael Marks, Fed Defenders of San Diego, for the HUGE WIN.  Splendid.

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/05/21/19-50305.pdf

US v. Gibson, No. 20-10074 (5-20-21)(Bennett w/Clifton & Nguyen). This opinion deals with supervised release conditions on the defendant convicted of receipt of child porn. The 9th affirms the conditions imposing place restrictions and risk notification for third parties. The defendant challenged these conditions as being unconstitutionally vague. He argues that the condition barring going to places “primarily used by children” was too vague and overbroad. The 9th finds it wasn’t; the conditions were set for children under the age of 18; and the examples of parks schools, childcare facilities and playgrounds were examples and would not bar going to national parks nor universities. The use of “primarily” for children under 18 can be understood. The condition is also not overbroad. The 9th acknowledges it is broad, but it addresses the defendant’s specific acts, protects the public, and promotes his rehabilitation by keeping him away from temptation. The “mens rea” element is interpreted as “knowingly.” Notification of third parties is upheld. It does not bestow too much discretion in the probation officer as to whom it might apply. The standard condition, taken from the Guidelines, sets the notification based upon the defendant’s criminal record. It requires specific instructions to the defendant and requires specific compliance.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/05/20/20-10074.pdf