1. US v. Gomez, No. 19-50313 (7-28-21)(Ikuta w/M. Smith; dissent by Steele). Yikes! The 9th finds the district court did not err in allowing the prosecution in its case-in-chief to preemptively rebut (!) an entrapment defense. The 9th reasons the defense clearly indicated it was raising entrapment (filing in limine motions and asking for the instruction). Since the government bears the burden of intent, and since the defense can raise entrapment on cross, allowing such evidence will prevent “sandbagging.” The 9th joins the 2nd. Arguably, the 8th is at odds.

The 9th allowed introduction of gang evidence to show defendant’s predisposition for drug trafficking and guns. It comes in under FRE 405(a) (character) to rebut entrapment.

Assuming error in allowing defendant’s parole officer to testify as to a prior carjacking, the 9th finds the error harmless.

Dissenting, Steele would find reversible error. Defense counsel did not raise entrapment in opening statement; the government’s case did not present an opportunity for entrapment to be argued; the defendant’s own witness did not support entrapment; and the court did not find a basis for an entrapment instruction. Thus, for the dissent, there was no basis for “sandbagging.” The defendant did not really raise entrapment. Introduction of such evidence to rebut a nonexistent defense is error.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/07/28/19-50313.pdf

2. US v. Dade, No. 19-35172 (7-28-21)(Choe-Groves w/Berzon & Collins). The 9th affirms the dismissal of a habeas petition as not meeting the requirements of a second or successive petition. Petitioner raised a claim that his underlying offense which supported interstate domestic violence was unconstitutional under Sessions v. Dimaya, 138 S. Ct 1204 (2018). The 9th found it was not. The underlying state offenses of battery or assault had elements of violence under the force clause of 16(a) and not the residual clause of 16(b).

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/07/28/19-35172.pdf