Case o' The Week: The Ninth's Pending Decision - Pacheco Pacheco and Statutory Interpretation

    “Deported” to Duluth? 

    A Black’s and white statutory interpretation case, for the Ninth.

United States v. Pacheco Pachecho, 2020 WL 5902923 (9th Cir. Oct. 6, 2020), decision available here.

 Players: Decision by visiting WD Ark. DJ Dawson, joined by Judges Graber and Bress. Hard-fought appeal by D. Az. AFPD Keith Hilzendeger.  

 Facts: Section 22465(A) of Title 18 prohibits sexual abuse of a ward, who is in “official detention” “pending deportation.” Id. at *1. Pacheco worked at a shelter housing unaccompanied noncitizen children. Id. He was charged under § 22465(A), for sexual contact with these minors. Id. at *2. An official testified at trial that the minors had been served with a Notice to Appear in Immigration courts, and that their cases were in the process of being adjudicated. Id.

  In reality, however, all of the minors were later placed with U.S. sponsors: none were ultimately deported. Id. 

  Pacheco’s Rule 29 motions argued the minors were not “pending deportation” within the meaning of the statute. Id. Those motions were denied and Pacheco was convicted.

 Issue(s): “To establish federal jurisdiction under the statutes of conviction, the victims must be in ‘official detention’—a term that extends to detentions ‘pending . . . deportation.’ 18 U.S.C. § 2246(5)(A). Pacheco contends that his convictions should be vacated because the government presented insufficient evidence to demonstrate that the minors were in official detention. In Pacheco's view, a person is ‘pending deportation’ only if he is awaiting actual removal from the United States following a final order of removal.” Id. at *1.

Held: “We hold that, under 18 U.S.C. § 2246(5)(A), the phrase ‘pending ... deportation’ does not require a finding of actual or inevitable removal from the United States. Instead, it is sufficient that, as here, the government had initiated removal proceedings against the minors, even though those proceedings were unresolved and the minors therefore did not face a certainty of deportation. Because the government presented testimony establishing that the minors in this case had been served with Notices to Appear in Immigration Court and were placed into removal proceedings that created the possibility of deportation, the statute’s jurisdictional element was met.” Id. at *1.

Of Note: Pacheco rejected a six-year deal before trial. He then received a nineteen year sentence after trial. This whopping 300% trial penalty is reported in a concurrently-filed mem dispo, where the big legal battles in this case are resolved. See United States v. Pacheco, 2020 WL 5910103, (9th Cir. 2020) (mem.) 

  In the mem dispo, the Ninth tolerates a government “expert” forensic examiner specializing in child abuse, and rejects a FRE 403 challenge to that “expert’s” testimony. Id. at *2. The Ninth also tolerates a six-level upward adjustment, based on aggravating circumstances. Id. 

  There are admittedly some bad facts in this case (Pacheco was HIV positive): the mem dispo reveals the story behind the opinion’s story . . .

How to Use: Like the Herrera opinion discussed last week, see blog here, , Pacheco is really statutory interpretation case. And like Herrera, the ubiquitous Bryan Garner makes an appearance in support of the Court’s interpretation. Id. at *3 (discussing Black’s Law Dictionary definition, edited by Prof. Garner).

 Pacheco offers a long discussion of the word, “pending” (and tries to distinguish a 2015 J. Reinhardt decision along the way.) The opinion’s expansive definitions of “pending” and “official detention” may have unintended consequences down the statutory interpretation pike: worth a Westlaw search to see what opportunities the case may present.                             

For Further Reading: A cop’s official statement should not an open-book test, to be tweaked after watching body camera video.

The San Francisco Police Commission has finally adopted a policy that restricts cops from viewing body cam footage before providing a statement in an officer-involved shooting, or involving an in-custody death. 

For an article describing this development (with some insights from our own ND Cal AFPD David Rizk), see New body-worn camera measures pass – after 2.5 years of negotiation with SF police union, available here. 

 

 

 

Image of Black’s Law Dictionary (edited by Bryan A. Garner) from https://twitter.com/bryanagarner/status/1134586489935933440

 

 

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

 

 

.

.

 

 

 

 

Case o' The Week: Ninth EDDifies Us on "Victims" - Herrera and Victims Under the Federal Sentencing Guidelines

 Corporations are “people,”

 

and government entities are, “victims.”

United States v. Herrera, 2020 WL 5405679 (9th Cir. Sept. 9, 2020), decision available here.

Players: Decision by Judge Hunsaker, joined by Judge Wardlaw and visiting Sixth Circuit Judge Cook.

Facts: Herrera pleaded open to mail fraud, relating to an unemployment-fraud scheme. Id. at *1. Herrera and his brother, and those who worked for the pair, filed fictitious claims. Id. The California Employment Development Department (“EDD”) paid out money on these fraudulent claims. Id. at *2. At sentencing, and over Herrera’s objection, his guidelines included a three-level bump for leadership role, and a two-level enhancement because there were ten ore more victims of the scheme. Id. at *2 (citing USSG § 2B1.1(b)(2)(A)(i)). Herrera was sentenced to 84 months and appealed.

Issue(s): “[ ] Herrera argues the district court erred by counting EDD as a victim for purposes of the number-of-victims enhancement imposed under § 2B1.1(b)(2)(A)(i). Whether the definition of ‘victim’ under § 2B1.1 includes a state government agency is a question of first impression in this circuit that we review de novo.” Id. at *4. “Thus, the question here is whether the definition of ‘victim’ for § 2B1.1, which does not include government entities in its list of various entities that may be counted as victims, must be interpreted to exclude government entities regardless of whether they suffer loss included in the loss calculation.” Id. at *6.

Held: “ [ ] [W]e hold that state government agencies who suffer losses that are included in the actual loss calculation under § 2B1.1(b)(1) are properly counted as victims for purposes of the number-of-victims enhancement in § 2B1.1(b)(2)(A)(i).” Id. at *8.

Of Note: This is a disappointing decision of first impression. Judge Hunsaker begins the analysis by reporting that “government entities” are not included in the list of entities that constitute “victims” in this guideline. Id. at *6. And she concedes that under “traditional statutory interpretation principles” “all omissions should be understood as exclusions.” Id. (emphasis added).

  And yet, relying on the “presumption of nonexclusive ‘include’” rule of statutory construction (from the Scalia / Garner Reading Law tome), the Ninth ends up concluding that a government entity is a victim under this guideline. Id. at *8.

  Sixty years ago, Professor Karl Llewellyn famously opined that rules of statutory construction are “conclusory explanations appended after the fact to justify results reached on other grounds.” See Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals, 521-35 (Little, Brown, 1960).   Maybe they are, maybe they aren’t, but fair to observe that these rules don’t lead to a particularly obvious result in Herrera.  

How to Use: Herrera also tolerates the imposed leadership-role adjustment in an analysis that merits mulling. James Herrera, and a co-conspirator, Ayala-Mora, were both directed by “Hessiani,” Herrera’s brother. Id. at *4. And Hererra and Ayala-Mora both received equal proceeds from the scheme. Id. Herrera, however, still was hit by a three-level “leadership” bump. Co-equal conspirators are not supposed to get leadership enhancements: the Ninth’s factual discussion of why this three-level bump survives is worth a close read if you have a client who getting nailed with this guideline.                                      

For Further Reading: Senator Mitch McConnell has vowed he will push forward on the conformation of SCOTUS nominee Amy Coney Barrett, despite the recent spate of positive COVID results among Judiciary Committee members. See AP news article here. 

  Much ink has been spilled on Judge Barrett’s views on a woman’s right to choice, on the Second Amendment, and Obamacare. How does the jurist come down on criminal law issues? For an interesting piece on that important question, see Jacob Sullum, SCOTUS Contender Amy Coney Barrett’s Mixed Record in Criminal Cases, available here. 

 

 

 

Image of EDD from https://en.wikipedia.org/wiki/Employment_Development_Department

Steven Kalar, FPD N.D. Cal. Website at www.ndcalfpd.org

 

.

 

Case o' The Week: Ninth Nod for Narrow Notice -- Cox and "Making Notice" Offering Child Porn

Notice of One? 

                          

Defendant is done.

 United States v. Sarah Cox, 2020 WL 3479648 (9th Cir. June 26, 2020), decision available here.

Players: Decision by visiting DJ Gwin, N.D. Ohio, joined by Judges R. Nelson and Bress.  

Facts: In August 2015, under the “Kik” username “JadeJeckel,” Sarah Cox exchanged texts with a man named, “Hennis.” They discussed plans to murder a mother and sexually abuse the children. Id. at *1. Roughly four months later, the pair exchanged texts again and discussed child porn. Id. at *2. Cox then used Kik to send to Hennis two Dropbox links, one of which contained child porn. Id. In the text conveying the links, Cox called them “goodies for daddy.” Id. Hennis was arrested: searches lead to Cox. Among other counts, she was charged with “making a notice offering child pornography,” in violation of 18 U.S.C. §§ 2251(d)(1)(A), 2256. Id. 

  Cox’s trial defense was that she was not, “JadeJeckel.” Id. Over her objection, the district court admitted the August 2015 texts about the murder of a mother and rape of children, as FRE 404(b) evidence. Id. 

  Cox was convicted after a jury trial. Id. She was sentenced to over 21 years in prison. See news article here.  

Issue(s): “On appeal, Cox argues that a one-to-one communication cannot be a ‘notice or advertisement’ of child pornography under 18 U.S.C. § 2251(d)(1). She argues that the statute requires ‘something more than a one-on-one exchange.’ Because her communication ran only to Hennis, she argues there was insufficient evidence for her § 2251(d)(1) conviction.” Id. at *3. 

   “Whether 18 U.S.C. § 2251(d)(1)’s ‘notice provision applies to one-to-one messages is an issue of first impression in this circuit.” Id.  

Held: “Based on the plain statutory language, we hold that one-to-one communications can satisfy the legal definition of ‘notice’ under 18 U.S.C. § 2251(d)(1). Applying this construction to the instant case, we conclude that a rational trier of fact could find that Cox made a notice offering child pornography when she sent a one-to-one electronic message linking to a Dropbox account that contained child pornography.” Id. at *8.

Of Note: The Ninth’s second holding tolerates the admission of texts sent four months before the charged conduct. Id. at *7. Whatever the FRE 404(b) problems with this holding, the FRE 403 balancing is of particular concern. Id. at *8. District Judge Gwin concedes that, “As to the danger of unfair prejudice, the August 2015 messages included prejudicial evidence. In the August 2015 messages, Cox and Hennis discussed murdering a mother to steal a child and their desire to kidnap, enslave, and rape children. But other-act evidence in sex-crimes cases is often emotionally charged and inflammatory, and this does not control the Rule 403 analysis.” Id.

  Worry about Cox’s tolerance of “emotionally charged and inflammatory” “other-act” evidence when mulling the defense of sex cases: the regrettable texts preceding the charged conduct may more dangerous than the main case itself.   

How to Use: This disappointing rule of first impression in the Ninth reads “notice offering child pornography” broadly to include this case’s one-to-one text (instead of a more-natural reading, that would limit “notice” to a larger audience). In a thin silver lining, the Ninth warns that this does not mean that all “one-to-one communications” will be violations of the “notice” statute. Id. at *6. Instead, this limited holding affirms a conviction only on the facts in Cox’s case. Id. What remains is an admittedly tricky distinction to pull off, but one that may remain available in future “notice” cases.  

                                               

For Further Reading: Hidden below the pandemic headlines and behind the news of Black Lives Matter protests lurks a troubling development: the resurrection of the long-moribund Sentencing Guideline Commission. 

  For years the Commission has been unable to promulgate punitive new Guideline amendments, for want of a quorum. D.C. buzz, however, suggests that happy hiatus may now be drawing to a close. See Concerns Mount Over Possible Trump Picks For Influential Crime Panel, available here. 

Image of “Notice” sign from https://www.amazon.com/Notice-Thank-Noticing-This-Funny/dp/B0051V3082

Image of the USSC seal from https://www.ussc.gov/

  

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

.

Case o' The Week: Headings and Shoulders Above the Crowd - "Exploitation" predicates for federal child porn offenses

 Brave case of first impression brings intellectually-rigorous analysis to – challenging – sentencing fact pattern.

United States v. Schopp, 938 F.3d 1053 (2019), decision available here.

 

The Hon. Judge Marsha Berzon

Players: Decision by Judge Berzon, joined by Judges Tashima and W. Fletcher. 

  Big win on issue of first impression for former CD Cal AFPD Myra Sun.  

Facts: Schopp pleaded guilty to production of child porn, pursuant to a plea agreement. Id. at 1057.

  The agreement had an appellate waiver. Id.

  Schopp admitted in the agreement that he had two Alaska state priors relating to the sexual assault and abuse of a minor. Id. (Note that neither state offense involved the production of child porn).

  At sentencing, the parties both urged a sentence of thirty-five years (the mand-min if one of the priors counted as federal “sexual exploitation of children.”) The district court rejected the recommendations and instead sentenced Schopp to life. Id.

  Had the multiple-prior enhancement not been applied (based on the state convictions), Schopp’s range would have been 25 to 50 years. Id.

  Schopp appealed, challenging whether his prior state convictions qualified as federal sexual exploitation predicates.

Issue(s): “Our question is whether the meaning of the term ‘relating to the sexual exploitation of children’ in § 2251’s enhancement provision should reflect the elements of the substantive crimes described in the same “[s]exual exploitation of children” statute.” Id. at 1056. “Under the Taylor categorical approach, we begin by defining the generic federal offense — “sexual exploitation of children.” We have yet to define the offense in a precedential opinion, so this is a matter of first impression.” Id. at 1059.

Held: “We hold that Schopp’s prior Alaska convictions are not offenses ‘relating to the sexual exploitation of children’ under § 2251(e), so the district court improperly applied the sentencing enhancement.” Id. at 1056-57.

  “All of the offenses described in § 2251 concern visual depictions of children engaging in sexually explicit conduct, with ‘sexually explicit conduct’ defined in a separate statute . . . . We accordingly hold that the federal generic definition of ‘sexual exploitation of children’ is defined within § 2251 as the production of visual depictions of children engaging in sexually explicit conduct, or put simply, the production of child pornography.” Id. at 1061.

  “[W]e hold that Schopp’s prior Alaska convictions are not a categorical match to the generic federal offense of ‘sexual exploitation of children’ and cannot serve as predicate offenses for purposes of the multiple-conviction enhancement under § 2251(e).” Id. at 1063. “[W]e REVERSE Schopp’s sentence and REMAND for resentencing.” Id. at 1069.

Of Note: Schopp is a characteristically thoughtful Berzon opinion. The Judge carefully explains the statutory interpretation that leads the panel to reject the government’s (expansive) “priors” theory. The analysis relies heavily on the section heading for the Section 2251 statute: “sexual exploitation of children.” Id. at 1059.

  Add the Schopp arrow to your “statutory analysis” quiver: if a statute’s section heading is in play, Schopp is the case to consult. See id. at 1060 & n.3.  

How to Use: Schopp is a must-read for any porn-production case with potential priors in play. It is also an intriguing decision for its rejection of the appellate waiver. See id. at 1058. As Judge Berzon explains, “Because Shopp’s appeal goes to the legality of his sentence, it is permitted despite his appeal waiver.” Id.

The Hon. Sentencing Commissioner and
District Judge Charles Breyer

  In NorCal, District Judge (and Sentencing Commissioner) Charles Breyer is (correctly) reading this “illegal sentence” exception into every plea agreement. Really, shouldn’t all plea agreements contain this (required) exception to appellate waivers?

                                               

For Further Reading: Last week Judge Danielle Hunsaker, of Oregon, cleared the Senate Judiciary Committee (with relatively little opposition from Democrats). See article here.  Her nomination by President Trump to the Ninth Circuit now awaits a Senate floor vote.

  After her likely confirmation, Judge Hunsaker will hold the seat vacated by Judge O’Scannlain. See article here. 

Image of the Honorable Judge Marsha Berzon from  https://www.youtube.com/watch?v=i39zEPuZr7c

Image of the Honorable Charles Breyer from https://twitter.com/LADailyJournal/status/972173100220538881

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

.

.

Case o' The Week: Ninth Needles Government - Hong and "Use" in Section 1028A

Judge Paez drives the point home, in a case of first impression.

United States v. Hong, 2019 WL 4315165 (9th Cir. Sept. 12, 2019), decision available here.

Players: Decision by Judge Paez, joined by Judges Clifton and D.J. England. Big win for former CD Cal AFPD Carlton Gunn.   

Facts: Hong owned and operated massage and acupuncture clinics. Id. at *1. He gave his patients’ Medicare-eligibility info and identities to physical therapy companies, who then billed Medicare. Id.

  In reality, however, the clients received massage and acupuncture (not covered by Medicare), and essentially no physical therapy (covered by Medicare). Id. at *2. Hong received the majority of the Medicare payments. Id. Notably, this is what the patients wanted – they came seeking massage and acupuncture, not physical therapy. Id.

  Hong was charged, tried, and convicted of fraud and kickback counts, and of two counts of aggravated identity theft. Id. at *3. “The government alleged that Hong used the names and Medicare-eligibility information of patients to submit, with the help of his co-schemers, claims for benefits without lawful authority.” Id. at *7.

Issue(s): “Hong argues there was insufficient evidence of aggravated identity theft [because] . . . this fraudulent billing does not constitute a ‘use’ of the patients’ identities within the meaning of the aggravated identity theft statute.” Id. “[This] argument presents a new question for our court: whether the fraudulent billing demonstrated in this case constitutes a ‘use’ of the patients’ identities under section 1028A.” Id.

Held: “Hong provided massage services to patients to treat their pain, and then participated in a scheme where that treatment was misrepresented as a Medicare-eligible physical therapy service . . . Neither Hong nor the physical therapists ‘attempt[ed] to pass themselves off as the patients.’ . . . . Hong’s fraudulent scheme ran afoul of other statutes—namely, health care fraud and unlawful remunerations—but not section 1028A. We hold that Hong did not ‘use’ the patients’ identities within the meaning of the aggravated identity theft statute. Accordingly, we reverse Hong’s [agg ID] convictions . . . . .” Id. (citations omitted).

   “Hong participated in and, through kickbacks, profited from a health care fraud scheme. His conduct, however, falls short of aggravated identity theft as it is contemplated in the statute. We therefore reverse Hong’s convictions for aggravated identity theft and remand for resentencing.” Id. at *9.   

Of Note: Section 1028A is the infernal “agg ID theft” statute. Carrying a two-year mand-min, it is a charge frequently abused by the government. See, e.g., United States v. Bercovich, 615 Fed.Appx. 416 (9th Cir. 2015), mem. (permitting § 1028A counts where identities were used with the person’s active consent). Hong is thus particularly welcome -- a rare appellate limitation for this generally boundless offense.

  In Hong, Judge Paez carefully analyzes the word “use” in the agg ID statute, and recounts with approval the approaches of the First and Sixth Circuits (both of which reject § 1028A charges in this context). Hong, 2019 WL 4315165 at *7-*8.

  Beware of the boundaries of Hong’s new rule –convictions can be upheld where there was impersonation or forgery. Id. at *8 & n.8. Nonetheless, any limit is a good limit: Hong helps.

How to Use: Must one argue all defense theories when moving for a Rule 29 dismissal? When that didn’t happen in Hong, the government argued that several appellate theories were waived. See id. at *5 (discussing Graf). 

  Federal trial attorneys should read Hong’s Rule 29 discussion carefully: if we articulate a specific Rule 29 theory at trial, our appellate comrades will thank us later if we try to articulate them all.

                                               

For Further Reading: Az Appellate AFPD Keith Hilzendeger found a hen’s tooth: a full week’s calendar staffed by Ninth judges. See Ninth Circuit calendar here.  No visiting judges, no D.J.s, see blog entries here, just Western appellate judges. 

  This feat was made possible with the influx of Trump-nominated jurists: Judges Miller, Bennett, and Bade all sat on this Pasadena calendar.

Image of acupuncture from https://www.relaxoncloud9.com/pins-needles/2018/6/4/9-facts-about-acupuncture

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

.

Case o' The Week: Ninth Rejects Gov't Position on Elements (yet Defense Takes the Dive!) - Carey, Statutory Interpretation, and Affirmative Defenses

“[I]f Carey looks before he leaps, he might see that the two decisions are not, as he claims, irreconcilable.”

  United States v. Carey, 2019 WL 2998728 (9th Cir. July 10, 2019), decision available here.

 Players: Decision by Judge M. Smith, joined by Judge Schroeder and SD NY DJ Rakoff.

   Hard-fought appeal (with admirably sophisticated statutory challenges) by AFPD Reed Grantham, Eastern District of California Federal Public Defender.

Mr. Austin Lee Carey

Facts: Carey was found suspended, high in a Yosemite tree. Id. at *1. He had a harness, wingsuit, and parachute – gear used for “BASE” jumping. Id. 

  Carey was rescued and charged with misdemeanors, including 36 CFR § 2.17(a)(3), “delivering a person by . . . airborne means . . . except pursuant to . . . a permit.” Id. at *2.

  In its pretrial brief the government explained that the government had to prove beyond a reasonable doubt that Carey did not have a permit. Id.

  The government failed to so prove in the bench trial: Carey moved for a Rule 29 acquittal. Id. The motion was denied in a written order by the Magistrate Judge.  Id.

Issue(s): “The dispute on appeal is . . . straightforward: Carey contends that § 2.17(a)(3)’s permit exception is an element of the offense, and thus that the government had to prove the nonexistence of a permit beyond a reasonable doubt, while the government argues that it is an affirmative defense for which Carey bore the burden of proof.” Id. at *3.

Held: “In summation, § 2.17(a)(3)’s permit exception is best understood as an affirmative defense under McKelvey . . . , not an element of the offense under Vuitch. We therefore conclude, like the magistrate judge and the district court, that Carey had—and did not meet—the burden of proof at trial.” Id. at *8.

Of Note: Don’t dismiss this parachute-permit case as a minor misdo opinion. Carey is an important decision on statutory analysis and affirmative defenses.

  On appeal Carey persuasively argued that the Supreme Court’s 1971 Vuitch decision required the permit issue to be treated as an element: after all, it was embedded in the regulation itself.

  The government (less-persuasively) turned to the 1922 McKelvey case from the Supremes, arguing that the permit was just an affirmative defense.

  In a decision of first impression, Judge M. Smith unfortunately agrees with the government, finds no conflict between these two SCOTUS decisions, and gives the nod to the old McKelvey approach as applied to this regulation.

  The Ninth assures us that this outcome is straightforward (though the Court struggles through many pages of analysis to finally get to the government’s position). 

  Carey merits a close read when affirmative defenses are in dispute – the McKelvey / Vuitch tension remains, and other regs or statutes may produce a different outcome for the element / affirmative defense debate.   

How to Use: Wait – how’d the Ninth get to this issue? Recall that the AUSA assured the Magistrate Judge that the government bore the burden of proving the lack of a permit. How does the government now win on appeal? Because government concessions are not (necessarily) waivers or forfeitures -- what would be plain error for the defense is just a misstep for the government. 

  The Ninth explains that the Court is “not obliged . . . to hold the government to this [trial] position, because even if a concession is made by the government, we are not bound by the government’s ‘erroneous view of the law.’” Id. at *3 (quotations and citations omitted).

   This is an aggravating rule, and one that will not save every mistake by an AUSA, but beware of the government’s “second bite at the appellate apple” as as you mull trial strategies.

                                               

For Further Reading: During the trial proceedings, the Magistrate Judge read an article about Mr. Carey in the Fresno Bee -- and then cited it in his written order denying the Rule 29 motion! Id. at *9. (Imagine if a jury’s guilty verdict form referenced a newpaper article not in evidence . . . .)

   The article’s hearsay recitation contained deeply prejudicial information that was not part of the bench trial. Despite this “troubling” reliance on facts not on evidence, the Ninth just “admonish[ed] [the Magistrate Judge] in the future to be more circumspect in referencing or considering facts not properly admitted into evidence.” Id. at *11.

  The Ninth then upheld the denial of Carey’s recusal motion. Id.

  The Fresno Bee article that was read and cited by the M.J. (with videos of Mr. Carey plummeting off of Yosemite peaks) is available here.  

Images of Austin Carey from https://www.fresnobee.com/news/local/article166303332.html

Image of Fresno Bee from https://www.bigvalleynews.com/index.php/news/local-news/1066-ken-riddick-promoted-to-president-and-publisher-of-fresno-bee 

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

.

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

.

Case o' The Week: Convictions resist a battery of challenges - Kirkland and "Explosive Devices"

  “Batteries not included."

   Ruins Christmas mornings.

  (Convictions? Not so much).

United States v. Kirkland, 2018 WL 6186513 (9th Cir. Nov. 28, 2018), decision available here.

Players: Decision by Judge Watford, joined by Judges Fisher and Friedland. Hard-fought appeal by former CD Cal AFPD Carl Gunn.

Facts: Cops found a box when they searched Kirkland’s home. It contained a radio frequency receiver that could be used to detonate a device, a detonator, and shotgun shells that could provide an explosive charge. Id. at *1. Missing were eight batteries needed to make a functional bomb. Id. At trial, a government expert testified that the box could be made a bomb in minutes, by inserting batteries and by connecting the detonator. Id. Kirkland was convicted of being a felon in possession of a destructive device, and of possessing an unregistered destructive device. Id.

Issue(s): “On appeal, Kirkland challenges the sufficiency of the evidence to support his convictions, on the ground that the device he possessed does not qualify as a ‘destructive device.’ He also argues that his sentence should not have been enhanced under the ‘destructive device’ provision of the Sentencing Guidelines, U.S.S.G. § 2K2.1(b)(3)(B), as that enhancement turns on the same definition of ‘destructive device.’” Id. “He challenges only the sufficiency of the evidence to support the jury’s finding that he possessed a combination of parts ‘from which’ an explosive bomb could be ‘readily assembled.’ In his view, a conviction under subsection (C) requires proof that the defendant possessed every component necessary to construct a functional weapon. Under Kirkland’s reading of the statute, he would be entitled to a judgment of acquittal because the device in question needed eight C-cell batteries to operate, and the government did not introduce any evidence establishing that he possessed such batteries.” Id. at *2.

Held: “We do not think the statute can be read in the manner urged by Kirkland. Nothing in the text of § 921(a)(4)(C) states that a defendant must possess every component necessary to render a partially constructed device capable of detonating. The statute requires only that the defendant possess a combination of parts from which a functional device ‘may be readily assembled.’ As used in this provision, the term “readily” means quickly and easily: The combination of parts possessed by the defendant must be capable of being assembled into a functional device within a short period of time and with little difficulty—measures that may depend on the expertise of the defendant constructing the device. That requirement does not categorically exclude situations in which the assembly process entails the acquisition and addition of a new part.” Id.

  “At the end of the day, regardless of which components are missing from the device, the ultimate question will be the same: Can the missing parts be obtained quickly and easily, and if so, can they quickly and easily be incorporated to render the device functional?” Id. at *3.

Of Note: Gunn’s at war. More specifically, the Ninth contends that Carl Gunn’s urged interpretation was “at war with Congress’s purpose” in enacting the “combo of parts” provision of this statute. Id. at *3.

  Maybe so, maybe not, but – as the defense warned -- this decision leaves “intractable line-drawing” problems for future cases. If this box had batteries, but no detonator, would that be a bomb that is “readily assembled?” What if it was missing the radio frequency receiver? What if the parts were, but it had not been wired?

  All of these scenarios are now “inherently factbound issues that juries will have to resolve on a case-by-case basis.” Id. at *3.

How to Use: Judge Watford flags an important exception to the Kirkland holding: a destructive device needs explosive material. Id. at *3. That wasn’t at issue here, because the shotgun shells were the explosive component of this device. Id.  

  Note this important Kirkland exception to the bits and bobs theory of conviction: a bomb needs something that goes boom.

                                               

For Further Reading: Will President Trump’s appointments remake the Ninth? Perhaps less than is assumed. 

  For an interesting article on the actual numbers, see a Brookings report here. 

Image of “batteries not included” from http://christophergamboa.com/tag/clean-eating/

Steven Kalar, Federal Public Defender Northern District of California. Website at www.ndcalfpd.org

.

.