US v. Saini, No. 19-50196 (1-24-22)(Bennett w/Bybee & Bataillon). An “intent to defraud” under 18 USC 1029(a)(3)and (4) requires “an intent to defraud and heat.” This means the government must prove the defendant had the intent to deprive a victim of money or property by deception. The reading is supported textually and it is unambiguous. While the instruction was error, it was harmless.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/01/24/19-50196.pdf

US v. King, No. 21-10002 (1-25-22)(Gould w/Bennett & Nelson). Compassionate Relief under the First Step Act does not apply to offenses before Nov. 1, 1987. They can gain relief only if BOP moves.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/01/25/21-10002.pdf

 

US v. Orrock, No. 19-10388 (1-26-22)(Bumatay w/Bade & Berman).The 9th clarified the statute of limitations for tax evasion: 26 USC 7201. The SL runs from the last act necessary to complete the offense – tax deficiency or evasion, whichever is later. This is the approach of the other circuits. Evasion of assessment and evasion of payment are two sides of the same coin, and that coin is taxable. It depends which side was used last.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/01/26/19-10388.pdf

US v. Ceja, No. 20-50204 (1-26-22)(Kelly w/M. Smith & Forrest). The 9th affirmed convictions and sentences for a drug conspiracy. The 9th found the oral waiver of jury trial was “knowing and voluntary.” There was a Spanish interpreter and the colloquy was adequate. The court did not err in granting new counsel, finding the reason for the request (a better deal) was not a basis. The defendant was a career offender as the prior matched categorically.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/01/26/20-50204.pdf

 

US v. Flucas, No. 19-10065 (1-21-22)(Rawlinson; concurrence by Schroeder; dissent by Bybee). This is a jury instruction appeal.  The defendant was convicted of transportation of a minor with intent to engage in criminal sexual activity in violation of 18 USC 2423(a). The defendant (a father who sexually abused his daughters) moved from Oregon to California. He argued he did so because of a better job opportunity, and not to engage in sexual activity. The jury instruction read the government had to prove beyond a reasonable doubt that “a dominate, significant, or motivating purpose” was to engage in sexual activity. The issue focused on “motivating” which was added to the instruction at the second trial. The 9th affirmed the convictions; holding there was no abuse of discretion. The instruction followed precedent and aligned with other circuits.

Dissenting, Bybee argued that “motivating” differed from “dominating or significant purpose,” and the terms were not synonymous or interchangeable.

Concurring, Schroeder takes the dissent to task for relying on a 70 year old Supreme Court case with different issues; not recognizing courts routinely treat “significant” as interchangeable with “motivating;” and finally making the assumption the addition of “motivating” alone resulted in a conviction by the second jury. This cannot be presumed and is unknowable.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/01/21/19-10065.pdf

US v. Castellanos-Avalos, 20-30181 (1-18-22)(M. Smith w/Paez & Nguyen). This is a question of exhaustion. The 9th reversed the dismissal of the indictment charging the defendant with a 1326. The dismissal was based on failing to advise the defendant in immigration proceedings about voluntary departure. The 9th notes that under US v. Palomar-Santiago, 141 S. Ct 1615 (2021), a court may not “excuse” exhaustion of administrative remedies and that a defendant must meet all the statutory requirements under 1326(d). This calls into question the 9th’s framework. The panel, though, sidesteps the issue. Here, the defendant had sought judicial review and received it. There is no basis for dismissing the indictment for such a failure. 

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/01/18/20-30181.pdf

Sanders v. Davis, No. 17-16511 (1-13-22)(Paez w/McKeown; dissent by Miller).  The 9th finds IAC in a capital sentencing phase and remands. The 9th finds IAC even though the petitioner had instructed counsel not to mount an argument for LWOP in the penalty phase. The majority concluded counsel’s minimal mitigation investigation and failure to adequately inform and advise petitioner was deficient. The majority also found prejudice. The majority concluded the petitioner likely would have allowed presentation of mitigation and there was a reasonable likelihood one juror might have changed their mind.

In so concluding, the majority read the Supremes’ decision in Landrigan, which concerned a defendant instructing counsel not to mount a penalty defense, as requiring a waiver to be knowingly and informed.

Dissenting, Miller agrees counsel was IAC in his investigation. Miller also finds the evidence may have convinced one juror. Miller dissents because he does not read the Supremes in Landrigan as requiring a “knowingly and informed” waiver. Miller argues the petitioner would not have changed his mind and was emphatic in his stance.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/01/13/17-16511.pdf

 1.  US v. Lonich, No. 18-10298 (1-10-22)(Bress w/Hurwitz & Corker). In a complex fraud appeal, the 9th finds no Sixth Amendment speedy trial violations. The issue arose from a superseding indictment in 2016 that extended charges originally filed in 2014. The 9th avoided the constitutional “spillover” challenge by concluding no Speedy Trial violation occurred. The 9th also rejected the jury instructions challenge to “knowingly” used in the money laundering instruction. Using “knowingly” went to transactional acts (general intent) and not to the specific intent of knowledge of proceeds. The 9th vacated and remanded the sentence because the record did not support the enhancement for failure of the financial institution which extended the loans.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/01/10/18-10298.pdf

2.    US v. Buck, No. 18-17271 (1-11-22)(Bress w/Callahan & Gilman). In a habeas, the 9th holds that assaulting a mail carrier with intent to steal mail, and placing the carrier’s life in jeopardy by using a dangerous weapon, is categorically a crime of violence. It requires intentional wrongdoing. It qualifies as a crime of violence under 924(c)(3)(A).

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/01/11/18-17271.pdf

3. US v. Ponce, No. 21-30009 (2-11-22)(Christen w/McKeown & Bade). The 9th vacates the denial of a petition for early termination of SR. The district court used the incorrect standard of “exceptional or extraordinary circumstances.” This is error. The correct standard allows far greater discretion, using phrases like “conduct of the defendant” and “in the interests of justice.” The 9th’s standard is correctly set forth in US v. Emmett, 749 F.3D 817 (9th Cir. 2014).

Congrats to AFPD Angela Chang of the Fed Def Services of Idaho.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/01/11/21-30009.pdf

1.    US v. Turchin, No. 10464 (1-3-22)(Collins w/Wardlaw; Fernandez concurring and dissenting). The 9th reverses and vacates convictions for fraud under 18 USC 1028(a)(1) and conspiracy under 371 concerning production of identification documents. The government failed to establish the requisite nexus to commerce (!) in making fraudulent state drivers’ licenses. As for jury instructions, the instruction was error because it refers to “United States” as the national government and not to the individual States. There might be sufficient evidence, thus the 9th vacates and remands. Fernandez concurs on the nexus and other issues but dissents as to the jury instruction on 1028. The issue as to the “States” was not raised nor argued and is not plain error.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/01/03/18-10464.pdf

2.    US v. Jackson, No. 20-35592 (1-3-22)(Nguyen w/Paez & M. Smith). In a habeas alleging the government violated the plea agreement, the 9th affirmed the district court’s denial of breach. The petitioner argued the government promised a recommendation of 120-180 months (which the government followed) and also promised the co-defendant would not be offered a lesser sentence. The record did not support such a promise, and the plea’s waiver of habeas is thus enforced. The matter is remanded as to whether there is a valid IAC claim.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/01/03/20-35592.pdf