Case o' The Week: It Isn't What You Know . . . - Price and Mens Rea Requirements for Int'l Flight Sex Offense Statute

 No “know?”

 No problem.  

United States v. Price, 2019 WL 1575875 (9th Cir. Apr. 12, 2019), decision available here.

Players: Decision by Judge Wardlaw, joined by Judge Nguyen. 
  Concurrence by visiting Sixth Circuit judge Ronald Lee Gilman, “unabashedly” adopting draft opinion written by Judge Stephen Reinhardt, before his untimely passing. 
  Hard-fought appeal by CD Cal AFPD Jonathan Libby.  

Facts: Price, a 46-year old man, moved from his assigned seat to sit next to a young woman on a flight from Tokyo to L.A.. Id. at *1. He fondled the breast of the sleeping 21-year old Japanese student, slipped his hand in her underwear, and touched her vagina. Id. 
  Price was charged with a violation of 18 USC § 2244(b), which prohibits knowingly engaging in sexual contact with another person, without their permission, on an international flight. Id.

  At trial, Price disputed the § 2244(b) jury instruction. Id. at *3. Price asked for an instruction that required proof that he knew the sexual contact was without the woman’s permission. Id.

  The district court denied that instruction, Price was convicted, and appealed.

Issue(s): “Price appeals his conviction, contending that the government was also required to prove beyond a reasonable doubt that he subjectively knew that his victim did not consent.” Id. at *1.

Held: “To read ‘knowingly’ to apply to the second element in § 2244(a) [prohibiting sex acts criminalized in other statutes] would both be grammatically unnatural and produce absurd results. Because a conviction under § 2244(a) does not require that the government prove the defendant’s knowledge of the additional element, we should read § 2244(b) in the same manner.” Id. at *6.

  “In enacting the Sexual Abuse Act of 1986, of which 18 U.S.C. § 2244(b) is a part, Congress sought to expand criminal culpability for sexual acts and contacts and facilitate prosecution of those crimes. Thus it placed the burden on the actor who knowingly engages in sexual contact with another person to first obtain that person’s consent, objectively given. The government need not prove that the defendant subjectively knew he lacked consent, as Price asserted here. It need only prove that the victim did not consent as an objective matter.” Id. at *11.

Of Note: The Ninth’s April 2018 decision in Yovino v. Rizo made recent news. In Yovino, the Supreme Court rejected an en banc vote by Judge Reinhardt that was cast before he passed away, and before the opinion was issued. See Washington Post article here. “Federal judges are appointed for life, not for eternity,” the high Court clucked disapprovingly. Id.

The Hon. Judge Stephen Reinhardt

  It is interesting to remember this SCOTUS’ scolding, when reading the compelling concurrence in Price. See id. at *11 (Gilman, J., concurring). Visiting Judge Gilman persuasively explains why this statute should be read to include a knowing mens rea as to whether the defendant was acting with permission. Id. Judge Gilman explains that before his death, Judge Reinhardt was a member of the Price panel and wrote a draft opinion. Judge Gilman reveals, “Unabashedly, much of this concurrence can be attributed to the portions of Judge Reinhardt’s draft opinion with which I fully agree.” Id.

  “Eternity” might be a stretch, but it is fair to say that Judge Reinhardt’s remarkable legacy continues well beyond his death.

How to Use: Sex offenses on international flights? Rare. 

  Disputes over mens rea requirements? Common. 

   The bulk of Price is statutory analysis of this infrequently-charged crime, inferred from adjacent statutes and assumed from the (low) custodial term at stake for this offense. Id. at *7-*8. For better or worse, turn to Price when mens rea and statutory interpretation battles arise – the decision has some helpful inverse propositions (for example, high-exposure statutes support the need for higher mens rea requirements. Id. at *7.

                                               

For Further Reading: Ninth - 4:3:2. Four vacancies, three nominees, hearings held on two. 
   For a quick tabular recap of the current nomination status of the Ninth Circuit in the 116th Congress, see “Judicial Vacancies and Nominations,” available here.  

Image of “The Price Isn’t Right” from http://bentwoodrealty.com/the-price-isnt-right/429/

Image of the Honorable Judge Stephen Reinhardt from https://www.azquotes.com/quote/1132273

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: Ninth Psh-Shaw after SCOTUS Remand - Shaw and Bank Fraud Jury Instructions

 The good news, Mr. Shaw, is you won a remand from the Supreme Court of the United States.

  The bad news . . . 

United States v. Shaw, 2018 WL 1473599 (9th Cir. Mar. 27, 2018), decision available here.

Players: Decision by Judge Schroeder, joined by Judges Nguyen and Hurwitz. Hard-fought appeal by CD Cal AFPD James Locklin.

Facts: Shaw ran a scheme that siphoned off funds of a bank depositor, through online payment and PayPal. Id. at *1. The losses were borne by the victim and by Pay Pal – not the bank. Id. Shaw was convicted of bank fraud, and on appeal argued that he had not defrauded the bank within the meaning of the statute. Id. The Ninth affirmed the conviction, and the Supreme Court agreed on that issue. Id.

  SCOTUS remanded on a different issue, however, that the Ninth had not considered: the disjunctive form of the “scheme to defraud” instruction. Id. The instruction given during trial allowed a conviction if Shaw had intended to “deceive, cheat, or deprive,” but the parties in the Supreme Court agreed the instruction should be in the conjunctive. Id.

Issue(s): “The [Supreme] Court remanded to us to consider whether this argument was fairly presented below, and, if so, whether the instruction is lawful and, if not, whether any error was harmless in this case.” Id.

Held: “We have carefully reviewed the record. It shows that Shaw did object to the instruction given by the district court. But the objection was not on the ground that he urged in the Supreme Court . . . Accordingly, we conclude that the argument the Supreme Court identified for consideration on remand was not fairly presented to us or to the district court.” Id. at *2.

Of Note: Judge Hurwitz was a sub, on this case. The case was originally submitted to a panel that included the Honorable Judge Harry Pregerson. Id. at *1. When Judge Pregerson passed away, Judge Hurwitz was drawn by lot. As discussed in “For Further Reading” below, we’ll tragically be seeing more of these footnotes soon.

How to Use: This outcome is a tough break for Mr. Shaw, though the Ninth does tip a hat to defense counsel’s statutory interpretation argument that was “creative and consistent with the record.” Id. at *2. Nonetheless, the good holding from the Supreme Court remains: this jury instruction should be in the conjunctive. A flag of note for future bank fraud cases under 18 USC § 1344(1). Id.

                                               

For Further Reading: For those who care about the rights of the poor and the powerless, decades of vigilance by three remarkable jurists helped make the Ninth great: Judge Betty Fletcher, Judge Harry Pregerson, and the “Lion of the Left,” Judge Stephen Reinhardt. We’ve bid our sad farewells to Judges Fletcher and Pregerson -- we now mourn the passing of Judge Reinhardt.

The Honorable Judge Stephen Reinhardt

  There will be tributes a-plenty to a Judge who left a remarkable legacy in many fields: marriage equality, civil rights, the First Amendment, immigration law, and making sure our indigent clients got a fair shake when facing draconian criminal statutes and sentencing guidelines. Less well known is Judge Reinhardt’s many quiet contributions to protecting the Criminal Justice Act – like Judges Betty Fletcher and Harry Pregerson, he served many years on the Ninth’s Federal Defender Standing Committee.

  For those who have the privilege to have argued before Judge Reinhardt, you’ll remember the experience: either a great witticism that got everyone laughing and broke the tension during an uncomfortable argument, or the dogged and insightful questioning that had counsel wishing that podium clock would tick down a little faster.

  For a taste of the Judge, the scholar, and the man of passionate convictions, revisit Judge Reinhardt's (still correct) explanation of the unconstitutionality of AEDPA. Crater v. Galaza, 508 F.3d 1261, 1262 (9th Cir. 2007) (Reinhardt, J., dissenting from denial of rehearing en banc) (“Such a congressional breach of the federal judiciary's integrity and independence, of its duty to maintain the supremacy of the Constitution, and, indeed, of the constitutional structure itself, should not go unchecked by this court.”)

  Dean Erwin Chemerinsky has written a brief and thoughtful piece on Stephen Reinhardt, the jurist and the man, available here. Former clerk Joanne Mariner has penned a more personal, and moving, memory of the Judge, available here.

  Farewell to another legend and, in some respects, to a great era in our Circuit’s history.

Image of “Winning the Battle” from http://www.jesusistherock.org/sermons/winning-the-battle-losing-the-war/ .

Image of the Honorable Judge Stephen Reinhardt from https://www.advocate.com/marriage-equality/2018/3/30/judge-who-brought-marriage-equality-west-dies-87.

Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: Evidentiary Errors Just the Tip of the Berg - Preston, Lay Witness Testimony, FRE 404(b), and Prosecutorial Misconduct

 "Preston raises over fifteen individual trial errors, across seven different categories."

 (But three suffice).

United States v. Preston, 2017 WL 4638022 (9th Cir. Oct. 17, 2017), decision available here.

The Honorable Judges Alex Kozinski and Stephen Reinhardt

Players: Decision by visiting District Judge Berg, ED Mich., joined by Judge Reinhardt. Concurrence by Judge Kozinski.

  Big win for appellate counsel AFPD M. Edith (“Edie”) Cunningham, for trial counsel AFPD Jay Sagar, and Jon Sands, Federal Public Defender, District of Arizona.

Facts: As an adult, Mitchell Rosenberg alleged that he had been molested by the defendant, Preston, 14 years before while on a reservation in Arizona. Id. at *2. Preston was charged with aggravated sexual abuse of a child in federal court. Id. 

  During the jury trial, Rosenberg’s testimony was the only direct evidence for the government. Id. A therapist, Bussert, who had worked with Rosenberg testified: over defense objection, she opined on whether Rosenberg was telling the truth about the allegations of sexual abuse. 

  Preston was convicted and sentenced to 162 months. Id.

Issue(s): “On appeal, Preston argues that the district court and the prosecutor committed a variety of errors and that these errors – either independently or cumulatively – deprived him of his right to a fair trial.” Id. at *2.  

Held: “Preston raises over fifteen individual trial errors, across seven different categories. We reverse based on the cumulative effect of the following: (1) improper witness testimony that bolstered Rosenberg's credibility and offered opinion on the credibility of sex abuse allegations in general; (2) prejudicial propensity evidence in the form of Preston's ex-wife's testimony regarding a child incest fantasy Preston allegedly had in 2003; and (3) prosecutorial misconduct, namely: commenting on Preston's decision not to testify, witness vouching, and misstating the evidence in summation.” Id. at *3.

  “In addition to improper opinion testimony indicating that she believed Rosenberg individually, Bussart gave improper opinion testimony as a lay witness about whether sex abuse victims generally tell the truth.” Id. at *5.

  “In sum, the district court abused its discretion in (1) allowing the government's line of questioning that led to Bussart's three improper statements indicating that she believed Rosenberg's allegations, and (2) permitting a juror's question to be asked regarding whether Rosenberg demonstrated his emotions in a manner consistent with sex abuse victims generally. In addition, it was plainly erroneous for the district court to allow Bussart to state that allegations of sexual abuse in her patients had normally been true.” Id.

   “The cumulative effect of these [and additional] errors rendered Preston’s trial fundamentally unfair, and his conviction must therefore be reversed and the case remanded for a new trial.” Id. at *12.

Of Note: This debacle of a trial spawned enough error holdings on appeal for a dozen Case o’ The Week memos. It is a must-read.

  In addition to the above “lay witness” holding, the Court also delivers an important FRE 404(b) holding. Id. at *7. Preston’s ex-wife testified – over defense objection – that she had caught Preston masturbating to an image of his eight-year old stepson, years after the alleged crime. Id. The Ninth holds the district court abused its discretion in admitting this testimony under both FRE 404(b) and 403.

  Preston offers a thoughtful and valuable FRE 404(b) / FRE 403 discussion, that recognizes the extraordinarily prejudicial impact of “collateral” sexual evidence in these cases. Add it to your trial arsenal for in limine battles.  

How to Use: Lay witness errors, evidentiary errors - but wait, there’s more. Prosecutorial misconduct also infests this cornucopia of trial problems. The AUSA improperly commented on the lack of defense testimony, and vouched for the government witness, Rosenberg. Id. at *10-*11. Other holdings aside, Preston would still be a very important decision solely for its discussion of prosecutorial misconduct during closing argument. Id. at *10.

                                               

For Further Reading: Two particularly well-known jurists (and famed friends) were on Preston: Judges Reinhardt and Kozinski. 

  For a thoughtful piece mentioning both judges, and discussing some core facts in the morass of myth surrounding the Circuit split brouhaha, see Has the 9th Circuit gone ‘bananas?’ And can Trump break it up?, available here.

Image of Judge Kozinski and Judge Reinhardt from https://www.flickr.com/photos/aclu_socal/5927007238/in/photostream/ .

Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: Share? Beware. - Nosal and Shared Passwords as CFFA violations

Share passwords?

You really shouldn’t. Your IT staff will yell at you.

(That, and you’ll go to federal prison).

United States v. Nosal, 2016 WL 3608752 (9th Cir. July 5, 2016), decision available here.

 

The Honorable Judge Margaret McKeown, and the Honorable Chief Judge Sidney Thomas

Players: Decision by Judge McKeown, joined by Chief Judge Thomas (above). Dissent by Judge Reinhardt. Hard fought-appeal by SF counsel Dennis Riordan, Donald Horgan and Ted Sampsell-Jones.

Facts: Nosal left Korn/Ferry, a headhunting company, to start his own firm. Id. at *2. Korn / Ferry had a confidentiality agreement that prohibited password sharing. Id. at *4. Nosal’s accomplices circumvented their revoked accessed credentials, and consensually used an assistant’s password to access Korn / Ferry’s database for information to take to Nosal’s new enterprise. Id. at *2. Nosal was convicted after trial. Id. at *10.

Issue(s): “This is the second time we consider the scope of the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030, with respect to David Nosal. The CFAA imposes criminal penalties on whoever ‘knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value . . . .’ Id. § 1030(a)(4) (emphasis added). Only the first prong of the section is before us in this appeal: knowingly and with intent to defraud accessing a computer ‘without authorization.’” Id. at *1. 

“The question we consider is whether the jury properly convicted Nosal of conspiracy to violate the ‘without authorization’ provision of the CFAA for unauthorized access to, and downloads from, his former employer's database called Searcher. Put simply, we are asked to decide whether the ‘without authorization’ prohibition of the CFAA extends to a former employee whose computer access credentials have been rescinded but who, disregarding the revocation, accesses the computer by other means.” Id. at *2 (footnote omitted). "

Held: “[W] e conclude that ‘without authorization’ is an unambiguous, non-technical term that, given its plain and ordinary meaning, means accessing a protected computer without permission. This definition has a simple corollary: once authorization to access a computer has been affirmatively revoked, the user cannot sidestep the statute by going through the back door and accessing the computer through a third party. Unequivocal revocation of computer access closes both the front door and the back door.” Id. at *1. 

“We . . . . hold that Nosal, a former employee whose computer access credentials were revoked by Korn/Ferry acted ‘without authorization’ in violation of the CFAA when he or his former employee co-conspirators used the login credentials of a current employee to gain access to computer data owned by the former employer and to circumvent the revocation of access.” Id. at *9.

Of Note: Dissenting Judge Reinhardt explains that this holding extends the CFAA to most of us who share passwords. Id. at *19 (Reinhardt, J., dissenting). It is a compelling opinion, that wonders how this extension of the CFAA statute to consensual password sharing can be reconciled with the very real policy concerns of Nosal I. 

  En banc, encore?

How to Use: A (thin) silver lining in this case is reversal and remand on the restitution award, for attorney fees. Id. at *18. Korn / Ferry hired “premier” attorneys, and the opinion insinuates that this private firm did a fair chunk of the USAO’s work. Id. 

  Judge McKeown warns that private attorneys “are not a substitute for the work of the prosecutor, nor do they serve the role of a shadow prosecutor.” Id. An interesting admonishment, for those of us who have endured Silicon’s Valley’s pricest private counsel sitting chummily at the USAO’s table.

                                               

For Further Reading: Professor Kerr has an interesting, albeit somewhat self-promoting, analysis of Nosal II in a Washington Post piece here. 

A very thought-provoking op-ed comes from Harvard Law Professor Noah Feldman, available here. 

Image of Judge McKeown and Chief Judge Thomas from http://www.usdmootcourt.com/wp-content/uploads/2013/03/mclennon_judges_2010.jpg

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: Welcome Clarity on Vagueness - Dimaya and Extension of Johnson to the Immigration (Civil) Context

Our Johnson Messiah: Due Process Dimaya.

  Dimaya v. Lynch, 2015 WL 6123546 (9th Cir. Oct. 19, 2015), decision available here.

Players:  Decision by Judge Reinhardt, joined by Judge Wardlaw. Dissent by Judge Callahan. Big win for Prof. Andrew Knapp, Southwestern Law School, with amicus help from Sejal Zota of Nat’ Immigration Project of Nat’ Lawyers Guild, for amici Immigrant Legal Resource Center, Immigrant Defense Project.

Facts: Dimaya was admitted to the US as an LPR. Id. He was twice convicted

Hon. Judge Stephen Reinhardt

of Cal. Penal Code Sec. 459, first degree burglary. Id. 

Under the Immigration and Nationality Act (“INA”), a conviction for an “agg felony” makes a petitioner like Dimaya subject to removal. Id. An Immigration Judge (“IJ”) held that Cal burgs are “crimes of violence,” and thus agg felonies, under the INA’s cross-reference to 18 USC § 16(b). Id. The IJ found Dimaya removable and ineligible for relief. Id. 

That decision was upheld by the Board of Immigration Appeals.

Issue(s): “Petitioner James Garcia Dimaya seeks review of the Board of Immigration Appeals' (BIA) determination that a conviction for burglary under California Penal Code Section 459 is categorically a ‘crime of violence’ as defined by 8 U.S.C. § 1101(a) (43)(F), a determination which rendered petitioner removable for having been convicted of an aggravated felony. During the pendency of petitioner's appeal, the United States Supreme Court decided Johnson . . . 135 S.Ct. 2551 . . . (2015), which held that the Armed Career Criminal Act's (‘ACCA’) so-called residual clause’ definition of a “violent felony” is unconstitutionally vague. In this case, we consider whether language similar to ACCA’s residual clause that is incorporated into § 1101(a)(43)(F)’s definition of a crime of violence is also void for vagueness.” Id. at *1.”

Held: “We hold that it suffers from the same indeterminacy as ACCA's residual clause and, accordingly, grant the petition for review.” Id.

Of Note: The most obvious impact of Dimaya is immigration – but this quickly bleeds into “crimigation.” 

Head’s up: crimigation is our job. 

After Padilla, criminal defense counsel have an affirmative obligation to accurately advise their clients on immigration consequences. See generally Rodriguez-Vega blog entry here. After Johnson and Dimaya, are you sure that case is still an agg felony, as you advise your criminal client? 

Read Dimaya, read Rodriguez-Vega, get spooked, then hit the Nat’l Immigrant Justice Center. See CJA Immigration Help Link here.  (Or try to hire immigration counsel– hiring an immigration attorney now on the CJA dime is much cheaper than paying for CJA habeas counsel later).  

How to Use: Dimaya will be the Ninth’s most important decision of the year. 

Here’s the rationale for that bold claim. If Johnson’s Due Process “vagueness” holding applies in a mere civil context (like the INA), id. at *2, the Supreme’s decision surely must apply to all criminal (albeit non-statutory) provisions. Johnson is our new hammer, and with Dimaya the whole world looks like a nail. USSG § 4B1.2(b) (CareerOffender); § 2K2.1 (felon in possession); § 2L1.2 (illegal reentry); USSG §7B1.1(1)(1) (Supervised Release Violations)– all have vulnerable “crime of violence” definitions, and all are now up for grabs.

Throw in due process challenges to statutes like 18 USC § 3142(f)(1)(A) (Bail Reform Act), the Hobbes Act, Section 924(c) offenses, and ACCA, and much welcome mischief awaits.

And don’t forget the thoughtful Dimaya analysis by Judge Reinhardt, specifically equating the ACCA “crime of violence” provision with the Section 16(b) “crime of violence” definition for the due process analysis, id. at *3 - *6 (analysis that cries out for logical extension to other “crime of violence” definitions).

Dimaya is the foundation upon which much good law will soon be built: a Very Big Case.

Prof. Andrew Knapp, Southwestern School of Law

                                               

For Further Reading: Dimaya was held in immigration detention, without bond, for five years. It was only after the Ninth appointed Prof. Knapp as pro bono counsel, and a “dedicated group of idealistic Southwestern law students took over [Dimaya’s] representation, was [Dimaya] finally able to obtain his release on bond.” 

For an article describing the moving human story behind this case, see here.  

Image of the Honorable Judge Stephen Reinhardt from http://manythingsconsidered.com/?p=6088

Image of Professor Andrew Knapp from https://media.licdn.com/mpr/mpr/shrinknp_400_400/p/4/000/15f/35f/1640659.jpg

Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org

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