US v. Garay, No. 18-50054 (9-17-19)(Schroeder w/Graber & Watson). A traffic violation led to chase led to a crash, and then the inventory search, and further warrants to investigate cell phones.  The 9^th affirmed the denial of the suppression motions, and affirmed the conviction for being a felon in possession.

Interesting facts include the 9th deciding not to decide if the defendant had in fact abandoned the car, after crashing into a ditch, and running.  The 9^th held that Byrd v. US, 138 S. Ct 1518 (2018) did not require standing for jurisdiction, and so no need to decide.

More concerning was the warrant for the cell phones, where the officers said that their experience with gun traffickers is that selfies and photos are taken and stored to facilitate sales.  Really?  The 9^th also permits “conclusory” statements on warrant affidavits so long as some facts are referenced, and relying on the experience of the officer or affiant.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/17/18-50054.pdf

US v. Schopp, No. 16-30185 (9-16-19)(Berzon w/Tashima & Fletcher).  In a production of child porn case, 18 USC 2251(a), the 9^th reverses defendant’s sentence and remands for resentencing. Applying a categorical approach, the 9^th concludes that the defendant’s prior state convictions (Alaska) for sexual abuse and sexual assault with minors do not “relat[e] to the sexual exploitation of children.” The “exploitation” has to do with visual depictions of children engaging in sexual explicit conduct and does not include conduct that lack visual depictions. As such, the prior convictions cannot serve as predicate offenses under 2251. The defendant avoided the bar of an appellate waiver because the sentence was illegal: the multiple-convictions enhancement was illegal.  The error was plain.

Congrats to Myra Sun for the win.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/16/16-30185.pdf

US v. Hong, No. 17-50011 (9-12-19)(Paez w/Clifton & England).  In this appeal from conviction for health care fraud, illegal remuneration, and aggravated identity theft, the 9^th affirmed the health care fraud and illegal remuneration convictions but reversed on the aggravated identity ones.  The 9^th found that use of a patient’s identity to falsely bill does not constitute a “use” of the patients’ identities for purposes of aggravated identity theft. 

In this case, the defendant operated an acupuncture and massage clinic. He fraudulently billed for services and got kickbacks from physical therapy companies. For the health care fraud convictions, the 9^th sidestepped the issue of error in giving a deliberate ignorance instruction because of the overwhelming evidence of actual knowledge. For the illegal kickbacks, there was sufficient evidence of the purpose of referrals and the arranging.

The reversal of the aggravated identity convictions was required because the identities were not “used” by the defendant to pass himself off as someone else or by others.

Congrats for that win, and a spirited fight on the other issues, to Carlton Gunn.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/12/17-50011.pdf

 

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

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Ramirez v. Ryan, No. 10-99023 (9-11-19)(Thomas w/Clifton; Berzon concurring and dissenting). Note: This is an Az FPD CHU case. The 9^th grants relief on the procedural bar due to Martinez IAC and remands for an evidentiary hearing on the IAC of trial counsel. The 9^th found that post-conviction representation was deficient (the State so conceded). Post-conviction counsel should have raised the IAC claim regarding trial counsel’s failure “to present or pursue evidence of intellectual disability, failed to provide relevant and potentially mitigating evidence to the psychologist … “ and submitted a psychology report with contrary facts.  On remand, petitioner should be allowed to develop evidentiary facts for the merits of his IAC claim.

The 9^th affirmed denial of the Ake claim and the unconstitutional casual nexus argument.

Berzon would grant a COA on the Atkins claim, find Martinez IAC, and remand for further proceedings.

Congrats to Paula Harms and Tim Gabrielsen of the Az FPD CHU.  

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/11/10-99023.pdf

 

Case o' The Week: Benamor, Encore - Benamor, Plain Error, and Rehaif Claims

  A felon, 

   charged with "felon in possession," 

      with a "felon in possession" prior, 

         may have known he was a felon.

United States v. Benamor, 2019 WL 4198358 (9th Cir. June 6, 2019, amend. Sept. 5, 2019), decision available here.

 

Hon. Judge Susan Graber

Players: Decision by Judge Graber, joined by Judges Bybee and DJ Harpool.  

Facts: Cops found a shotgun in a van which Benamor, a felon, had driven. Id. at *2. He went to trial on § 922(g) charges, and stipulated that he was a felon. Id. at *5. Benamor was convicted and appealed. Id. at *2.

  In the original opinion, Judge Graber denied Benamor’s challenge based on a failure to instruct on the “antique firearm” aspects of the statute. See COTW blog here. 

  Benamor then filed a petition for rehearing, arguing that – under Rehaif – there was insufficient evidence for a conviction because the government failed to prove he knew he was a felon when he possessed the old shotgun. Id. at *5. (Rehaif was decided after Benamor was convicted).

Issue(s): Under plain error review, was there "a probability that, but for the [Rehaif] error, the outcome of the proceeding would have been different"? Id. at *5. Did "this error in not instructing the jury to make such a finding affect Defendant’s substantial rights or the fairness, integrity, or public reputation at trial"? Id. 

Held: “[T]he third and fourth prongs of the plain-error test are not met. Here, there is no probability that, but for the error, the outcome of the proceeding would have been different. . . . When Defendant possessed the shotgun, he had been convicted of seven felonies in California state court, including three felonies for which sentences of more than one year in prison were actually imposed on him. The felonies included one case in which Defendant sustained convictions for being a felon in possession of a firearm and a felon in possession of ammunition; he was sentenced to five years and eight months in prison. Defendant spent more than nine years in prison on his various felony convictions before his arrest for possessing the shotgun. At a minimum, the prior convictions for being a felon in possession of a firearm and being a felon in possession of ammunition proved beyond a reasonable doubt that Defendant had the knowledge required by Rehaif and that any error in not instructing the jury to make such a finding did not affect Defendant’s substantial rights or the fairness, integrity, or public reputation of the trial.” Id. (italics in original).

Of Note: In the amended opinion, Judge Graber recounts the many ways in which she believes the government could have proved the Rehaif “knowledge” element (although, it bears noting, it did not). Specifically, the Court emphasizes Mr. Benamor’s previous felon in possession convictions (which Judge Grabers deems enough to “prove beyond a reasonable doubt” that Benamor knew of his status as a felon). This particular prior is an unfortunate criminal history for Mr. Benamor, but note that the opinion is not a per se rule for all felons with Rehaif claims. Depending on your client’s felony priors, a bit of light may still shine through this dark decision.

How to Use: Judge Graber seems tempted to hold that the mere fact of an old-school Old Chief stip to a felony prior “end[s] the discussion as to Defendant’s knowledge of his status as a felon.” Id. at *5. A close read of the opinion, however, reveals that the Ninth does not actually so hold. See id. 

  If your client does not have the regrettable fact of Benamor’s previous “felon in possession” conviction (and Benamor’s seven felony priors), don’t quite fold the tent yet on the Rehaif claims now perking in the Ninth – plain error will require a case-by-case analysis.

                                               

For Further Reading: Plain confused by plain error? For a very helpful outline written by experienced federal defense counsel, see “Plain-Error Review from Top to Bottom, or Slaying the Four-Headed Hydra,” available here.

Image of the Hon. Judge Susan Graber from https://usdchs.org/oral-histories/our-collection/susan-p-graber/

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

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1.     US v. Waggy, No. 18-30171 (9-5-19)(Graber w/Owens; dissent by Tashima). When does free speech become harassment? In this case, the 9^th, in a divided panel, affirms the conviction for telephone harassment under the Assimilative Crimes Act for numerous calls. The defendant, a Marine veteran, called the VA Center (where he had been barred for disruptive behavior) and complained about, well, everything; stating he owned the land and facilities, he made statements about defending himself, seizing property, and laced his diatribe with vulgarities directed at the secretary to the director. Charged and convicted of telephone harassment, the 9^th affirmed because the state statute was sufficiently constitutionally cabined: requiring specific intent to threaten and harass and not just to express speech.

Tashima dissent, arguing that the statute criminalizes speech – vulgar and rough and harassing – but public and political speech nonetheless.

Matt Campbell of the Fed Def of E. Wash. & Idaho (Spokane) mounted a spirited defense and raised interesting First Amendment issues.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/05/18-30171.pdf

2.     Clark v. Chappell, No. 14-99005 (9-5-19)(per curiam w/Callahan, Ikuta, & Owens). The 9^th affirmed the denial of habeas in this pre-AEDPA capital case, except for issue 2, which is remanded. Issue 2 concerned a juror declaration that during the punishment phase of the case, the juror consulted with a minister. The 9^th remanded for reconsideration in light of Godoy v. Spearman, 861 F.3d 956 (9^th Cir. 2017). Godoy sets a two-step framework for juror improper contact. The court must determine whether the contact was possibly prejudicial. If so, the contact is then deemed presumptively prejudicial, and the next step is for the state, bearing a heavy burden, to show that it was harmless. On remand, applying the test, the district court must determine if the contact was “sufficiently improper” and “raised a credible risk of affecting the outcome in the case.”

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/05/14-99005.pdf

Ward v. US, No. 17-35563 (9-3-19)(Paez w/Bea & Royal). The 9th affirms a mandatory ACCA sentence. The 9th concludes that a prior Minnesota state conviction for aiding and abetting a simple robbery is a “violent felony” under Stokeling v. US, 139 S.Ct. 544 (2019).  As required by Stokeling, the minimum force required includes an “amount of force necessary to overcome a victim’s resistance.” The 9th’s prior distinction between “substantial” and “minimal” force is erased by Stokeling’s test. 

Tough loss in a spirited categorical fight by Melissa Weinberg, Deputy Defender, Federal Defender Services of Idaho (Boise).

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/09/03/17-35563.pdf