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

Washington v. Shinn, No. 05-99009 (12-20-21)(Callahan w/Gould & VanDyke). In a pre-AEDPA capital habeas petition, the 9th denies petitioner’s IAC claim. The 9th concluded trial counsel did not meet the first Strickland prong (deficient performance) for failure to investigate or present certain mitigating evidence of diffuse brain damage, childhood abuse, and drug abuse. Even if counsel’s actions fell below professional standards, there was no prejudice.

The 9th notes that it is not “insensitive” to the fact that two other co-defendants do not face the death penalty: one had his conviction overturned and the other had his capital sentence vacated (and has since died). The 9th recognizes the “temptation” to bend legal sentences to equalize outcomes, but the panel must stay true to “its duty.”

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/12/20/05-99009.pdf

US v. De La Mora-Chen, No. 20-30187 (11-29-21)(Tallman w/Gould & Bumatay). The 9th affirms the district court’s dismissal of a defendant’s motion to dismiss the 1326 indictment. The defendant argued he was precluded from collaterally attacking the underlying order of removal. The defendant had raised an asylum claim which had been denied in expedited removal and he did not appeal. The 9th holds the defendant raising an asylum claim in expedited removal proceedings must exhaust administrative remedies before the defendant can collaterally challenge in a subsequent criminal case. Here, the defendant was given an opportunity to appeal the denial of his claim (no credible fear despite being kidnapped and held for ransom and maimed) and made a “considered and intelligent” decision not to. Thus, he was precluded from now collaterally attacking it in this 1326 case.

A valiant effort by Deputy Fed Defender Paul Shelton of the Fed Def Wash E (Yakima).

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/11/29/20-30187.pdf

US v. Reyes, No. 20-50016 (11-26-21)(Collins w/Hurwitz; Higginson concurring). The 9th affirmed part of the sentence but vacated and remanded for resentencing about SR conditions. At sentencing for importation of drugs, the court imposed, without notice, a special SR condition for suspicionless police searches. The court cut defense counsel’s attempt to object off and note the objection. This was enough to preserve the record. When it comes to advance notice of a special condition of SR, the 9th holds advance notice must be given. Prior precedent, US v. Wise, 391 F.3d 1027 (9th Cir. 2004), requires such notice. The 9th rejected the Government’s contention that the Supreme Court in Irizarry v US, 553 US 708 (2008) overruled Wise. In Irizarry, the Court held no advance notice is required for a variance, as it is always in play. This is distinct from a special SR condition, where the parties had no notice of imposition.

On plain error review, the 9th rejected the requirement the court had to articulate why it denied defendant’s request for a downward departure or variance.

Concurring, Higginson would require a court to always articulate any discretionary SR condition, mandatory or special.

Congrats to Doug Keller, CJA, in Cal S.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/11/26/20-50016.pdf

US v. Franklin, No. 20-30136 (11-23-21)(Boggs w/Murguia; Berzon concurring). This is an important sentencing opinion. It involves Guidelines, relevant conduct, and hearsay.  You need to read it.

The 9th considers what standard to use in reviewing the unsworn hearsay testimony of a codefendant used to increase the offense level. Reviewing almost a half century of Guidelines jurisprudence, and the cases, the 9th fashions a two-factor test: (1) whether the statement is “procedurally reliable;” or (2) whether the statement is “substantively reliable.” “Procedural reliability” cannot put the burden on the defendant to prove a negative. The defendant must have an opportunity and means to challenge the statement. “Substantive reliability” requires the statement to be reliable or consistent enough with other statements to indicate probable truth. “Procedural reliability” is reviewed de novo. “Substantive reliability” is more factual and is reviewed for “clear error.” This test is disjunctive: “or.”

At the end, a Hobbs Act robbery, the 9th upheld the use on both standards.  The 9th also found that former precedent foreclose the argument that the Hobbs Act robbery was not a COV.

Berzon concurs. She agrees with the outcome; but argues the test, as developed, requires both. At a minimum, Berzon argues the test has to be “substantively reliable.”

This is a lengthy opinion, reviewing the cases, development of case doctrines, concerns, and various tests.

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/11/23/20-30136.pdf

Ochoa v. Davis, No. 16-99008 (11-1-21)(Clifton w/Rawlinson & Collins). The 9^th affirms denial of a capital petition. AEDPA deference cuts short consideration of both guilt and sentencing issues. One such issue was Brady. A witness, who had participated in one of the aggravating offenses (a prior sexual assault), testified for the State regarding the petitioner’s involvement in the murder. This witness allegedly had implicated himself  to three separate “jailhouse informants” that he was involved in the murder. The State Supreme Court held these statements should have been disclosed, but in light of the petitioner’s confession and other evidence, the statements were not material.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/11/01/16-99008.pdf

US v. Rizo-Rizo, No. 20-50172 (10-29-21)(Bennett w/Paez & Callahan). For the misdemeanor offense of attempted illegal entry, 1325(a)(1), the 9th holds that knowledge of alienate is not an element of the offense. This is a circuit issue of first impression. The specific intent of “attempted entry” goes to whether the person specifically intended to enter the United States. See US v. Smith-Baltiher, 424 F.3D 913 (9th Cir. 2005). The 9th also distinguishes Rehaif, which construed the scope of “knowingly” as to the elements.

The 9th here takes the approach to regard the offense as a regulatory one, and no presumption of scienter applies. Supporting this too is that Congress had required specific intent in other provisions of 1325; and 1326 has been held to be regulatory.

A valiant appeal by Doug Keller and Michael Marks of the Federal Defenders of San Diego.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/10/29/20-50172.pdf

1.  US v. Tat, No. 19-50034 (10-21-21)(Graber, Miller, & Hillman). The 9th vacates a conviction for false entry in bank records because, well, the entries weren’t false. They were true: money in and money out. The entries of cashier’s checks were accurate; the structuring may have had a nefarious purpose (money laundering) but that is a different offense than 18 USC 1005. The 9th affirmed another count because the payee in that entry was fictious.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/10/21/19-50034.pdf

2. McGill v. Shinn, No. 19-99002 (10-21-21)(Bybee; concurrence by Collins; partial concurrence and partial dissent by M. Smith). This is an AZ FPD CHU case. The 9th affirms denial of a capital habeas petition under AEDPA deference. The interesting issue here is the ex post facto claim, which is the thrust of M. Smith’s dissent. The defendant committed this offense shortly after Ring, but before the AZ legislature enacted a fix. He is the only petitioner in this stance. The 9th concludes the state supreme court acted reasonably when it found the new legislation was “only” procedural and not substantive. M. Smith takes its, and argues the petitioner, in that period, did not have a death penalty and could not be sentences to death.

Kudos to Jennifer Garcia for a spirited and vigorous argument (AFPD AZ CHU). The dissent hopefully will lead en banc.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/10/21/19-99002.pdf

US v. Goodall, No. 18-10004 (10-13-21)(Lee w/Graber & Vratil). It is never good when the opinion early on reads that the defendant is trying to “wiggle out” of his plea. Actually, the defendant argues his plea was illegal because US v Davis, 139 S. Ct 2319 (2019) held the residual clause of 924(c) was unconstitutional for vagueness. Here, the defendant, charged with Hobbs Act robberies, faced 70 years but under a plea faced a recommended 20 years and got a sentence of 14 years. Once Johnson and then Davis came out, he argues his sentence is illegal. Not so, says the 9th, because an illegal sentence differs from an illegal conviction as legal terms. An illegal sentence is one the parties did not anticipate and violates the law—such as above the stat max. An illegal conviction is one the parties took into account when agreeing to plead. That is, the defendant took the risk of the law changes to secure present benefits. The 7th and also the 5th and 2nd agree with this analysis. Lastly, finding for the defendant would undue many pleas and make plea benefits illusory for the govt.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/10/13/18-10004.pdf

US v. Yates, No. 18-30183 (10-8-21)(Berzonw/Miller; Bress dissenting). A majority of the 9th held that a conspiracy for bank fraud and false entry had to be vacated because the theory of a duty to accurate information was too an ethereal theory for a conviction. The other conviction had to be vacated for insufficient evidence. 

Dissenting, Bress would find the convictions supported prior precept.

Congrats to Elizabeth Daly and Steve Sady, Ore FPD (Portland). 

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/10/08/18-30183.pdf

US v. Wilson, No. 18-50440 (9-21-21)(Berzon w/Watford & Whaley). This is an interesting and important case regarding “private searches” and passing the information over to law enforcement. This involves hashtags not equaling an actual look. Google detected uploads as email attachments that were keyed to child porn. They passed the information over to law enforcement but never actually examined the uploads. The gov’t overstepped the information given because it learned new information than what was presented in the uploads attachment and the gov’t looked further.

The decision is here: 

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/09/21/18-50440.pdf

US v. Schaeffer, No. 19-30266 (9-16-21)(Bea w/Ebel & VanDyke). This is a Faretta case. The 9^th affirms the convictions and sentences of a defendant, with a long history of mental illness, who embarked on self-representation after going through four lawyers (make that seven after the case). The case does show the interplay of possible gamesmanship and the Sixth Amendment right to self-representation. The 9^th gives a paean to the right of self-representation and warns against imprisoning one with constitutional privileges. Sadly, the defendant has 40 years to ponder his right to represent himself. The interesting issue, and one of first impression, is where the court, in the Faretta colloquy, mistakes the minimum sentence. Here, with various explosive charges, the defendant faces a mandatory 40 years if the counts were found to stack. The court stated it was possible they would stack. The 9^th concluded the misstatement made no difference, although it paused with that and looked at the record (the defendant had told the court he was steadfast in wanting to represent himself and that he knew the penalties). The 9^th stresses there is not a strict checklist or script to follow. The court must advise the defendant of the dangers (and follies) of self-representation, but there is no rigid rule. The warnings were adequate here. The 9^th also upheld the court denying the request for counsel after a jury was selected: it was too late, and the court’s determination of gamesmanship was not clear error.

Susan Russell, AFPD Oregon (Portland) earns kudos for this difficult appeal.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/09/16/19-30266.pdf