Wednesday, June 29, 2022

US v. David, No. 20-50274 (6-15-22)(Bumatay w/Bress & Gleason).  Fed R Crim P 11(b)(1)(N) requires the court to inform the defendant of any appellate waiver.  In particular, Rule 11 requires that the court must address the defendant personally in open court. In this appeal, the defendant argues the failure of the court to personally address, and inform, him of the waiver during his change of plea was cause to make the waiver unenforceable. Under plain error, the 9th upheld the waiver. The defendant was questioned about the plea, specifically told of the waiver, and the plea was voluntary and informed.


US v. Manaku, No. 20-10069 (Per curiam w/Clifton, Nelson, & Collins; concurrence by Collins). Fed R Crim P 41(f)(1)(c ) requires a complete copy of a warrant to be left. It wasn’t. Only the first page was left. Defendant argues this clear violation of Rule 41 requires suppression. The trial court disagreed. The 9th affirms the denial of suppression.

Despite clearly violating Rule 41, the 9th holds denial of suppression was not warranted. The failure was not fundamental (clear constitutional violations). Rather, the violation was “technical,” and suppression only occurs if (1) the defendant was prejudiced; or (2) there was a deliberate disregard of the rule. Neither occurred here. The error was due to carelessness.

Concurring, Collins would find that the Supreme Court had overruled the requirement a warrant be produced on demand, as defendant had requested here, but only requires it to be left at the end of the search or leaving. With that, Collins concurs in the judgment that the failure was unintentional.


US v. Mathews, No. 19-56110 (6-13-22)(Forrest w/Kelly & M. Smith). The petitioner gets relief under Davis, 139 S. Ct.2319 (2019). A conviction under 18 USC 844(i) (property-damage destruction) is not a categorical “crime of violence” for 924c(3). The destruction could be to one’s own property and not solely the property of another. While the district court tried to use past precedent to divine congressional intent (an explosive bomb seems a COV), a categorical approach must be applied. The 9th joins the 4th, 6th, and 10th Circuits.

Congrats to Kara Hartzler, Fed Defs of San Diego.


1. US v. Tagatac, No. 21-10133 (6-10-22)(Nelson w/Bybee & Bolton). Hawaii’s second-degree robbery statute is divisible. Thus, the defendant’s conviction for the robbery is a “crime of violence,” and the court did not err in sentencing him as a career offender. Hawaii’s statute makes each subdivision a separate offense; and jury instructions require unanimity on the acts.

2. US v. Merrell, No. 20-30183 (6-10-22)(Hurwitz w/Sung; dissent by Boggs).  The First Step’s amendment of 924( c)(1) applies if a sentence imposed before passage was vacated and remanded. The sentencing slate had been wiped clean.

Dissenting, Boggs argues the text does not allow retroactive application, even if the sentence was vacated. Words, not possibly what Congress intended, controls.



US v. Mendez, No. 20-30007 (6-7-22)(McKeown w/Christen & Miller).  The 9th affirms a conviction under 18 USC 2251(a), which criminalizes conduct that leads a minor to engage in sexually explicit acts to produce a visual depiction. Here, placing a camera in the eye of stuffed animal to film an unaware teenage girl masturbating was clear conduct that fell within the scope of the statute. The appeal concerns “use” because the defendant did not coerce, persuaded, or entice the victim.  The 9th’s focus is on the conduct of the defendant and not the victim. The defendant’s acts “used” the victim. The 9th lines up with the numerous other circuits in this perspective.


US v. Werle, No. 20-36005 (6-3-22)(M. Smith w/Tashima & Nguyen). In Rehaif, the govt must prove the defendant knew he was a felon when he possessed a firearm. Here, the district summarily dismissed the 2255 because the court felt he did on the record. The 9th reversed. First, petitioner can overcome procedural default given the overwhelming weight of precedent. Second, though petitioner was sentenced previously to more than a year in prison and acknowledged he was convicted of felonies, such facts do not conclusively show he knew his status to the degree needed for summary dismissal. He may not have pled guilty to being a felon in possession had he been advised of the govt’s burden to meet the Rehaif knowledge element. This is remanded for an evidentiary hearing.


Congrats to Houston Goddard of the Fed Def of E WA and Idaho (Spokane).


Sunday, May 22, 2022

US v. Randall, No. 20-10339 (5-20-22)(Bumatay w/Bress; dissent by Wardlaw). In sentencing issues of first impression concerning receiving and distributing child porn, the 9th holds (1) 2G2.2(b)(3)(B) does not require the defendant to actually receive “valuable consideration” for a sentencing enhancement; and (2) 3014(a)requires a $5000 fine per offense rather than the nature of offense.

Dissenting, Wardlaw argues that 3014(a) differs markedly from 3013, which requires an assessment per conviction, and must be interpreted differently.

There are Circuit splits on both issues: (1) 6th (has to receive) vs 5th (no receipt); (2) 3rd (fine for each conviction) vs 2d (offender and nature of offense)

1. Martinez v. Shinn, No. 21-99006 (5-16-22)(per curiam w/McKeown, Fletcher, & M. Smith)(an AZ FPD CHU case). The 9th denies the request for a COA to challenge the denial of a Rule 60(b) motion. The 9th agrees that Mitchell provides the court with authority to allow discovery to develop a claim under Rule 60. However, the development has to be for an extraordinary change and the changes alleged here – a Napue claim and Pena-Rodriguez – were not prejudicial or not extraordinary.


2.US v. Allen, No. 21-10060 5-16-22)(Ikuta w/Lucero & VanDyke). COVID does not justify the closure of visual public access to a suppression hearing and trial. The constitutional right to a public trial was violated when the court only allowed audio. Visual is critical. The court could have struck a balance, but its total ban on visual presence was too broad. While the right to access is not absolute, for example in national security cases, there were other measures the court could have used to balance.


Congrats to Lisa Ma, AFPD FPD Cal N (Oakland).


US v. Davis, No. 10066 (5-13-22)(Lucero & concurrences by VanDyke and Ikuta). The 9th rejects a Rehaif challenge to being a felon in possession. The review is for plain error, and the 9th finds the defendant could not show prejudice and there was knowledge of his felony status. 

The sentence was vacated and remanded. The 9th accepts the gov’t’s concession that Bautista applies. Bautista held a state drug statute was categorically over broad as a prior. The statute was for AZ but it applies for Nevada.

The concurrence  join the majority because of the concession, but questions such a reliance. The concurrence bemoans the complexity of the categorical approach and cautions against over reliance on Bautista.

Monday, May 02, 2022

1)    US v. Rosenow, No. 20-50052 (4-27-22)(Forrest w/Callahan; dissent by Graber).                Interesting opinion affirming conviction and sentence on attempted exploitation of a         child and possession of child porn. The issue is whether Yahoo and Facebook acted as         government agents in tracking down images and messages. The government knew of         the concerns of the providers, and implicitly encouraged them to investigate and turn         over evidence. The majority however found they were acting as private entities.                 Dissenting, Graber concludes they were acting as agents. Graber also questions whether      the test of implicitly acting is outdated and needs to be reconsidered.

The decision is here:

2)    US v. Phillips, No. 20-10304 (4-29-22)(Korman w/Paez & Friedland). This is a similar case to above – a private person (here an ex-fiancé) turning over child porn. Law enforcement told the fiancé to show only the officer the files she had opened. In this way, she was not acting as a quasi-agent but as a private citizen and there was no state action.

The decision is here:

Jessup v. Shinn, No. 18-16820 (4-21-22)(Graber w/Murguia & Fitzwater)(AZ FPD case). The 9th reverses a grant of resentencing under Miller. Under AEDPA deference, the 9th found the state supreme court reasonable in its holding the state trial judge weighed and balance a natural life sentence with one where there was a possibility of release.

Keith Hilzendeger, AFPD FPD AZ (Phoenix), valiantly represented the petitioner.

The decision is here:

US v. McCarron, No. 20-10072 (4-18-22)(O’Scannlain w/Miller & Lee). Affirming an enticement case under 18 USC 2422, the opinion goes through each element, in the light most favorable to the gov’t, to show there is sufficient evidence to support conviction. The interesting issue is that proposed “hypothetical” lurid meetings will achieve “the mental state of assent” with a minor rather than an actual attempt to engage in sexual conduct with a minor.

US v. House, No 20-30169 (4-15-22)(per curiam)(concurrences by Graber, Christen, and Wu). In a drug sentencing case, the 9th reversed and remands a prior MT marijuana conviction as categorically overbroad. It affirms the cocaine prior as not categorically overbroad under plain error.

Although a per curiam opinion, there were three concurrences. All bemoan the complications of a categorical approach. Graber discusses the “explicit/evident” distinction; Christen discusses the “implied/implicit” distinction. Wu suggests and discusses the “reasonable probability” approach for cocaine over breadth analysis.

Congrats to Evangelo Arvanetes, Fed Defenders of MT (Billings).

US v. Irons, No. 20-30056 (4-11-22)(Collins w/Fletcher; Watford dissents). The issue concerned a 924(c) charge of using a firearm “in furtherance” of drug trafficking. The defendant conceded PWID drugs but contested a conspiracy charge and the firearm charge. As to the firearm, he argued the firearm was under the mattress for safekeeping as he would sell it back to the person whom he bought it from when he returned from out of state. It was not therefore used to further drug trafficking. Two issues of note: First, regarding a supplemental jury instruction in response to a jury note, Fed R Crim P 30(d) requires an objection be made. A prior objection, or submitted instruction, is not sufficient. Thus, review is for “plain error.” Two, the error here is plain. The supplemental instruction implied that a “connection” was sufficient. This is error. Using a firearm is not just connected but must be “in furtherance.” It must facilitate, advance, or promote an action. No witness saw the defendant use, brandish, or show the firearm.  In looking at the error in hindsight, see US v. Henderson, 568 US 266 (2013), the error is plain. An unpublished opinion that supported the district court is not persuasive.

Watford dissents, arguing any error was harmless.

Congrats to AFPD Dennis Carroll, FPD Ofc Wa W (Seattle).

Sunday, February 13, 2022

US v. Hansen, No. 17-10548 (2-10-22)(Gould w/McKeown & Restani). It isn’t everyday one gets the 9th to declare a statute unconstitutional. AFPD Carolyn Wiggins (Cal E Sacramento) and the ACLU et al did so here. The statute is 8 USC 1324(a)(1)(A)(iv), which criminalizes encouraging or inducing an alien to reside in the United States. The 9th held the statute was facially overbroad, and so vacates the two convictions.

The 9th analyzes the statute and agrees with defendant it encompasses substantial protected speech related to immigration. The 9th rejected the gov’t’s argument the statute is narrowly construed to prohibit speech integral to criminal conduct, specifically solicitation and aiding and abetting. The 9th adopted the reasoning of a prior opinion, US v. Sineneng-Smith, 910 F.3d 461,485 (9th Cir. 2018)(Sineneng-Smith I), because, while it was vacated by the Supremes on other grounds, 140 S. Ct 1575 (2020), its analysis is still persuasive. The panel here goes through the statute. It finds a plain legitimate sweep, but the statute also sweeps in substantial protected free speech related to immigration. For example, encouragement for an undocumented immigrant to reside in the United States is protected. There are other examples, such as advice in the face of natural disasters, legal advice, advising about social services, or the consequences of overstaying a visit. The expanse of legitimate speech is far greater than the narrow legitimate criminal conduct. The government’s promise to use it only legitimately is unpersuasive.

The other convictions -- the defendant conducted mail and wire fraud through a program touting adult adoption for undocumented immigrants -- were affirmed in a memo.

Congrats to AFPD Wiggins and the ACLU.

The decision is here:

Wednesday, February 09, 2022

US v. Mendoza, No. 19-50092 (2-8-22)(Bea w/Berzon & Nguyen). 

A conspiracy/RICO/924c win – insufficient evidence.  The 9th vacates convictions and orders judgments of acquittal. The defendant was alleged to have been in a California gang: Canta Ranas. He admitted involvement, but said he withdrew 8 years prior. He acknowledges a meth addiction, and argued the sporadic contacts were simply to buy drugs for his own use. For example, out of 21,000 texts/calls the government had between the gang members, only 4 involved the defendant. The context was of a buyer for own use. Lacking direct evidence as to any agreement, there was also a lack of evidence presented of “prolonged and actively pursued course of drug sales” that would lead to an inference. This was true even in the light of evidence most favorable to the government. This lack holds for the conspiracy and RICO counts. It also undercuts the gun charge. An all too rare conspiracy win.

A great win for Ethan Balogh, CJA.

 US v. Schlenker, No. 20-30141 (2-1-22)(Paez w/M. Smith & Nguyen).

Keith Hilzendeger provided this blurb:  The defendant here pleaded guilty to second-degree murder and a § 924(c) count in 2016.  After the Ninth Circuit held that second-degree murder wasn’t a crime of violence, he sought a declaration from the court that filing a § 2255 motion to challenge the § 924(c) conviction wouldn’t be a breach of the plea agreement.  The district court dismissed the declaration for lack of jurisdiction under the Declaratory Judgments Act.  The Ninth Circuit affirmed, because the declaratory judgment action was just an end-run around the § 2255 process.  Moral of the story here – if you want to know if certain litigation will breach the plea agreement, you have to take the risk and start that litigation. 

A hard-fought battle by Alan Zarky, AFPD in Tacoma.

Saturday, January 29, 2022

US v. Saini, No. 19-50196 (1-24-22)(Bennett w/Bybee & Bataillon). An “intent to defraud” under 18 USC 1029(a)(3)and (4) requires “an intent to defraud and heat.” This means the government must prove the defendant had the intent to deprive a victim of money or property by deception. The reading is supported textually and it is unambiguous. While the instruction was error, it was harmless.

The decision is here:

US v. King, No. 21-10002 (1-25-22)(Gould w/Bennett & Nelson). Compassionate Relief under the First Step Act does not apply to offenses before Nov. 1, 1987. They can gain relief only if BOP moves.

The decision is here:


US v. Orrock, No. 19-10388 (1-26-22)(Bumatay w/Bade & Berman).The 9th clarified the statute of limitations for tax evasion: 26 USC 7201. The SL runs from the last act necessary to complete the offense – tax deficiency or evasion, whichever is later. This is the approach of the other circuits. Evasion of assessment and evasion of payment are two sides of the same coin, and that coin is taxable. It depends which side was used last.

The decision is here:

US v. Ceja, No. 20-50204 (1-26-22)(Kelly w/M. Smith & Forrest). The 9th affirmed convictions and sentences for a drug conspiracy. The 9th found the oral waiver of jury trial was “knowing and voluntary.” There was a Spanish interpreter and the colloquy was adequate. The court did not err in granting new counsel, finding the reason for the request (a better deal) was not a basis. The defendant was a career offender as the prior matched categorically.

The decision is here:


Tuesday, January 25, 2022

US v. Flucas, No. 19-10065 (1-21-22)(Rawlinson; concurrence by Schroeder; dissent by Bybee). This is a jury instruction appeal.  The defendant was convicted of transportation of a minor with intent to engage in criminal sexual activity in violation of 18 USC 2423(a). The defendant (a father who sexually abused his daughters) moved from Oregon to California. He argued he did so because of a better job opportunity, and not to engage in sexual activity. The jury instruction read the government had to prove beyond a reasonable doubt that “a dominate, significant, or motivating purpose” was to engage in sexual activity. The issue focused on “motivating” which was added to the instruction at the second trial. The 9th affirmed the convictions; holding there was no abuse of discretion. The instruction followed precedent and aligned with other circuits.

Dissenting, Bybee argued that “motivating” differed from “dominating or significant purpose,” and the terms were not synonymous or interchangeable.

Concurring, Schroeder takes the dissent to task for relying on a 70 year old Supreme Court case with different issues; not recognizing courts routinely treat “significant” as interchangeable with “motivating;” and finally making the assumption the addition of “motivating” alone resulted in a conviction by the second jury. This cannot be presumed and is unknowable.

The decision is here:

US v. Castellanos-Avalos, 20-30181 (1-18-22)(M. Smith w/Paez & Nguyen). This is a question of exhaustion. The 9th reversed the dismissal of the indictment charging the defendant with a 1326. The dismissal was based on failing to advise the defendant in immigration proceedings about voluntary departure. The 9th notes that under US v. Palomar-Santiago, 141 S. Ct 1615 (2021), a court may not “excuse” exhaustion of administrative remedies and that a defendant must meet all the statutory requirements under 1326(d). This calls into question the 9th’s framework. The panel, though, sidesteps the issue. Here, the defendant had sought judicial review and received it. There is no basis for dismissing the indictment for such a failure. 

The decision is here:

Sanders v. Davis, No. 17-16511 (1-13-22)(Paez w/McKeown; dissent by Miller).  The 9th finds IAC in a capital sentencing phase and remands. The 9th finds IAC even though the petitioner had instructed counsel not to mount an argument for LWOP in the penalty phase. The majority concluded counsel’s minimal mitigation investigation and failure to adequately inform and advise petitioner was deficient. The majority also found prejudice. The majority concluded the petitioner likely would have allowed presentation of mitigation and there was a reasonable likelihood one juror might have changed their mind.

In so concluding, the majority read the Supremes’ decision in Landrigan, which concerned a defendant instructing counsel not to mount a penalty defense, as requiring a waiver to be knowingly and informed.

Dissenting, Miller agrees counsel was IAC in his investigation. Miller also finds the evidence may have convinced one juror. Miller dissents because he does not read the Supremes in Landrigan as requiring a “knowingly and informed” waiver. Miller argues the petitioner would not have changed his mind and was emphatic in his stance.

The decision is here:

 1.  US v. Lonich, No. 18-10298 (1-10-22)(Bress w/Hurwitz & Corker). In a complex fraud appeal, the 9th finds no Sixth Amendment speedy trial violations. The issue arose from a superseding indictment in 2016 that extended charges originally filed in 2014. The 9th avoided the constitutional “spillover” challenge by concluding no Speedy Trial violation occurred. The 9th also rejected the jury instructions challenge to “knowingly” used in the money laundering instruction. Using “knowingly” went to transactional acts (general intent) and not to the specific intent of knowledge of proceeds. The 9th vacated and remanded the sentence because the record did not support the enhancement for failure of the financial institution which extended the loans.

The decision is here:

2.    US v. Buck, No. 18-17271 (1-11-22)(Bress w/Callahan & Gilman). In a habeas, the 9th holds that assaulting a mail carrier with intent to steal mail, and placing the carrier’s life in jeopardy by using a dangerous weapon, is categorically a crime of violence. It requires intentional wrongdoing. It qualifies as a crime of violence under 924(c)(3)(A).

The decision is here:

3. US v. Ponce, No. 21-30009 (2-11-22)(Christen w/McKeown & Bade). The 9th vacates the denial of a petition for early termination of SR. The district court used the incorrect standard of “exceptional or extraordinary circumstances.” This is error. The correct standard allows far greater discretion, using phrases like “conduct of the defendant” and “in the interests of justice.” The 9th’s standard is correctly set forth in US v. Emmett, 749 F.3D 817 (9th Cir. 2014).

Congrats to AFPD Angela Chang of the Fed Def Services of Idaho.

The decision is here: