Case o' The Week: A Touch of Evil on Ninth's Mind - Hernandez and Mens Rea + Actus Reus Match

 Bad mind, wrong crime?

 No time.

 United States v. Lucio Hernandez, 859 F.3d 817(9th Cir. June 15, 2017), decision available here.

Players: Per curiam decision with Judges Shroeder and Bybee, and Chief D.J. William Smith. 

  Admirable win for Deputy Federal Public Defender Alexandra Yates, Central District of California.

Facts: Hernandez drove from Arizona to California to transfer title on a car. Id. at 819. In Arizona, he (legally) purchased multiple weapons at a gun show, without any waiting period (things prohibited in California). Id. He listed Arizona as his current residence on the ATF form, though he lived in California. Id. 

  When the guns were later found by California cops in the possession of others, the ATF got a search warrant. Id. No Arizona guns were found in the search: some had been stolen, Hernandez explained, others buried in the desert. Id. 

  He was indicted with illegal transportation of firearms into his state of residence, in violation of 18 U.S.C. § 922(a)(3). Id. at 820. 

  At the government’s urging, the court gave an instruction based on Bryan, 524 U.S. 184 (1998) that may have permitted the jury to find Hernandez guilty “even if he did not know that his act of transporting guns into California was illegal.” Id. “The court rejected an instruction that would have connected the required willfulness to the act of transporting the guns into California.” Id. 

  During trial, the government introduced evidence about “straw purchasers,” and revealed several of the guns were recovered from others by police. Id. The government argued this evidence showed Hernandez’s “bad purpose;”the jury found Hernandez guilty.

Issue(s): “In order to convict Hernandez of this crime, the government was required to prove that his violation was ‘willful,’ i.e., that the defendant acted with knowledge that the charged conduct (transporting the firearms into his state of residence) was unlawful. Hernandez argues on appeal that the evidence was insufficient to prove that the specifically charged conduct was done ‘willfully.’ Moreover, Hernandez contends that because the district court allowed the government to introduce evidence of other (uncharged) criminal acts allegedly committed by Hernandez in connection with the firearms at issue, combined with a broad interpretation of the willfulness instruction contemplated by Bryan . . . ., the jury may have convicted him without finding the requisite level of culpability.” Id. at 819.

Held: “[W]e agree. We . . . reverse and remand for a new trial.” Id. at 819. “We conclude that, given the district court's broad jury instruction and the government’s theory of the case, it is not clear beyond a reasonable doubt that the jury actually found that Hernandez had willfully committed the charged conduct.” Id. at 821. “We hold that the broad jury instruction, combined with the evidence of the commission of later crimes and the government's argument to the jury, resulted in significant prejudice to Hernandez.” Id. at 824.

Of Note: This prosecution went awry when the district court rejected a defense instruction that would have required Hernandez to know his conduct was unlawful, and that he intended to disobey the law when he transported firearms purchased in Arizona to California. Id. at 823. Without that “concurrence of an evil-meaning mind with an evil-doing hand”, id. at 823, the jury could have convicted Hernandez for being an arms trafficker. As Hernandez helpfully observes, “It is a longstanding precept of the common law that a person cannot be convicted of one crime on the basis of an intent to commit another.” Id. at 823. 

  A rare and welcome mens rea win – particularly involving the comparatively low “willfulness” mental state.  

How to Use: Remember back in CrimLaw when we were taught that a crime required a match between the mens rea and charged actus reus? 

  Sometimes it feels AUSAs skipped that class. 

  Hernandez is a clean and emphatic endorsement of the proposition that the government has to prove more than intent to commit some crime or another -- there has to be intent to commit the crime charged. Id. at 823. Fair to assume Hernandez was up to various unlawful shenanigans with guns, which makes the Ninth's strict focus on the charged offense particularly potent (and per curiam to boot!). 

                                               

For Further Reading: After almost eighteen years on the Ninth, the Honorable Judge Richard Tallman is taking senior status. See Press Release here. 

  Judge Tallman replaced Judge Betty Fletcher, and will himself be replaced by one of the (now-five) Trump nominees for the Ninth.

  When will those shoes drop? Depends if Dem Senators are feeling blue (slips).  See article on nominations here.  

Image of “evil hand” t-shirt from https://rlv.zcache.com/warning_i_have_an_evil_hand_that_has_a_mind_t_shirt-recd06010b5eb4765937db6a9aadf3b81_k2gr0_324.jpg

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

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Case o' The Week: Ninth (Sai)Pans specific intent requirement. - Ye and Mens Rea for Passport offense

It's a Winn-Win situation . . . (for the government).

United States v. Ye, 2015 WL 4153634 (9th Cir. July 10, 2013), decision available here.

Players: Decision by Judge Friedland, joined by Judges Clifton and N.R. Smith.  

Facts: Ye, a Chinese citizen, overstayed her visa in Saipan and gave birth a child.

Hon. Judges Michelle Friedland and N.R. Smith

Id. The child’s place of birth made her a U.S. Citizen entitled to a U.S. passport. Id. Ye and her husband could have obtained a U.S. passport for the child if they both applied in person, or if one parent signed a notarized authorization statement. Id. This notarized statement, however, would have caused (unspecified) problems for the father of the child in China -- so the father’s brother traveled to Saipan, posed as the father, and executed the child’s passport application. Id. Both the brother (the child’s uncle) and Ye, the mother, were charged with conspiracy to violate 18 U.S.C. § 1542, providing false information in a passport application. Id. Ye was convicted after trial.

Issue(s): “[Ye] argues that the district court’s jury instructions erroneously failed to condition her convictions on a finding that she intended to violate the passport laws.” Id. at *1.

Held: “We hold that the crimes for which Ye [were] convicted are not specific intent crimes, so her challenges to the jury instructions fail.” Id. at *1. “We now join our sister circuits and hold that, consistent with [the Supreme Court’s decision in] Browder, a conviction under the first paragraph of 18 U.S.C. § 1542 does not require specific intent.” Id. at *3.

Of Note: “But wait,” you ask: “in ’78 didn’t the Ninth hold that a district court ‘correctly instructed the jury’ that ‘an act is done willfully if done voluntarily and intentionally with the specific intent to do something the law forbids’ – under the same paragraph of this statute?” 

You remembered correctly. Id. at *3, citing Winn. 

However, Judge Friedland distinguishes Winn because that was a “sufficiency of the evidence” case, “so its approval of the ‘willfully’ jury instruction is best understood as stating that the instruction had not improperly reduced the government’s burden of proof.” Id. at *3. That’s a pretty close reading of precedent to avoid the Miller v. Gammie bar on flipping a prior panel (though the Ninth admittedly gets a little boost from Justice Sotomayor, who had as a judge made the same fine distinction). Id. at *3 & n.2. Another unfortunate salvo in the attack on our beloved and beleaguered federal mens rea requirements.

How to Use: It’s an old (and fair) gambit to intentionally add small errors to a declaration, ask a witness to interlineate and correct them when they object, and then later argue that the witness must have read the document carefully before signing because errors were caught and fixed. Here, the government used that trick: DHS agents intentionally inserted errors in interview read-backs to Ms. Ye, to trigger corrections and later prove the accuracy of the translators. Id. at *5. That strategy helped the government fend off a Crawford attack on the translators in Ye, and it was reported without criticism by Judge Friedland. Sauce for the goose, sauce for the gander: point to this passage when a D.J. gives you grief for your investigator’s use of that technique.

                                               

For Further Reading: Many people in prison “really don’t need to be there.” A quote from Justices Kennedy and Breyer? Well, yes, probably, but this week the insight is from House Speaker John Boehner. See article here. 

Last week Mr. Boehner endorsed the SAFE Justice Act, welcome legislation that narrows the use of mand mins, encourages alternative sentences, and has a number of other reforms. 

Meanwhile, Senate Whip Cornyn (R-Texas) suggested that a bi-partisan sentencing overhaul deal may be announced as soon as next week. Seearticle here.  

Throw in the historic first Presidential visit to a federal prison, NYT article here,  and maybe this will be the long overdue Summer of Change?   

Image of the Honorable Judge Michelle Friedland from http://www.trbimg.com/img-5456e441/turbine/la-apphoto-bonds-steroids-appeal-baseball-jpg-20141102

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

Case o' The Week: A Profitable appeal - Anderson and restitution orders

  The Ninth wants a criminal defendant to pay a huge software company’s profits.

  (And it’s a good thing). United States v. Anderson, 2013 WL 6670793 (9th Cir. Dec. 19, 2013), decision available here.

 

Players: Decision by Judge Callahan, joined by Judge Fernandez and Chief DJ Vance. Hard-fought appeal by ND CJA attorney John Jordan.

Facts: Anderson sold (unauthorized) copies of Adobe software online. Id. at *1. Activation codes were hand-written on the disk in permanent marker. Id. He sold about $70,000 worth of the software, was discovered by Adobe, and was ultimately prosecuted for criminal copyright infringement. Id. at *2. At trial, Anderson explained that he thought these disks were legal backup copies. Id. The parties disputed a “willful infringement of copyright” jury instruction, and the jury later sent a note questioning the meaning of “willful.” Id. at *4-*5. Anderson was convicted and the district court imposed $247,144 in restitution. Id. at *3.

Issue(s): “[  ]Anderson . . . appeals his conviction for criminal copyright infringement . . . .. Anderson contends that the district court erred: (1) by giving an incorrect jury instruction on willfulness; (2) by allowing the government to introduce evidence of uncharged acts of infringement; and (3) in calculating restitution.” Id. at *1.

Held: “Applying the willfulness standard for criminal copyright cases as recently clarified in . . . Liu, 731 F.3d 982 (9th Cir.2 013), we conclude that the jury instruction was flawed but did not rise to the level of plain error. We also find that the evidence of uncharged acts was properly admitted as intrinsic to the charged conduct, and accordingly, we affirm Anderson’s conviction. Nonetheless, consistent with . . . Fair, 699 F.3d 508 (D.C. Cir. 2012), and . . . Chalupnik, 514 F.3d 748 (8th Cir. 2008), we conclude that the district court erred in failing to award restitution reflecting the victim's actual loss, which consisted of the victim’s lost profits on sales of authentic copies that would have taken place if not for Anderson’s conduct.” Id.

Of Note: The district court erroneously calculated restitution by multiplying the number of copies of Adobe disks sold, by the retail value of the disks. Id. at *10. The Ninth embraces out-of-circuit authority for copyright restitution cases and reverses. Restitution for criminal copyright should focus on the victim’s loss, not the defendant’s gain – and “in most cases, that will consist of the copyright owner’s lost profits on sales that would have taken place if not for the infringing conduct.” Id. at *12. Anderson is a useful, rigorous application of restitution – a “back of the envelope approach simply will not do.” Id. “Speculation and rough justice are not permitted.” Id. at *13. Turn to Anderson to put some bite in restitution fights.

How to Use: In addition to a good restitution holding, the Court in Anderson also offers helpful language on the mens rea requirement for criminal copyright infringement. Id. at *7. The government in Anderson inexplicably used an old instruction that allowed for conviction if Anderson knew his acts “may” infringe upon copyrights. Id. “May” won’t cut it: the word is “vague” and rendered “the first sentence of the instruction incorrect to the extent that it suggests that Anderson could be convicted without knowing that he was violating Adobe’s rights.” Id. at *7. Because this was plain error review, this erroneous instruction didn’t earn a reversal – but the good mens rea language is still useful for copyright cases.  

                                               

Executive Committee, A.O. US Courts (new Chair Judge Traxler, not pictured)

For Further Reading: The Hon. Sarah S. Vance, Chief Judge of the E.D. La., sat on the Anderson panel. Chief Judge Vance is one of the eight members of the Executive Committee of the Administrative Office of the United States Courts (CJ Vance is to the far left, in front, in red). See article here. 

   The significance? It is the Executive Committee who ultimately determines the funding of the Defender Service account – a subject of much interest to those committed to the defense of indigent clients in federal court. See, e.g., E.C. Letter re: CJA Rate Cut, here. 

Image of Adobe symbol from http://www.sjsu.edu/at/ec/pics/adobe-systems-incorporated.png?ox=  

 Image of the (2012) Executive Committee from http://www.uscourts.gov/FederalCourts/UnderstandingtheFederalCourts/AdministrativeOffice/DirectorAnnualReport/annual-report-2012/support-for-the-judges-and-court-staff.aspx

Steven Kalar, Federal Public Defender ND Cal FPD. Website at www.ndcalfpd.org

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