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

Bolin v. Davis, No. 16-99009 (9-15-21)(Bress w/McKeown & Nguyen). Under AEDPA deference, the 9^th affirms denial of a habeas petition. The 9^th held no IAC for not pursuing a change of venue based on pretrial publicity. The 9^th also found no possibility of IAC, under AEDPA, when new counsel for the sentencing phase failed to seek a continuance to develop additional mitigation. Under the facts, the new counsel and investigators had about two months to take up mitigation. They made efforts at interviewing and examining records. However, even assuming ineffective mitigation, the panel concluded that no “fair-minded jurist” could find prejudice. The “other” evidence was cumulative or would not change the outcome. This held true for the compelling evidence of childhood abuse. However, the result would have been the same. The 9^th would not find per se IAC for failure to call an expert. The other evidence, such as brain injury, mental health issues, and military service, was not strong enough.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/09/15/16-99009.pdf

1. Jurado v. Davis, No. 18-99009 (9-10-21)(Thomas w/Graber & Clifton). AEDPA deference results in the 9th affirming this capital petition. This even applies to a double jeopardy claim. The state court dismissed a “special circumstances” charge, and the petitioner immediately pled to the remaining charges. However, the dismissal was reversed, and the petitioner then withdrew his plea. The California Supreme Court found no double jeopardy, and while the 9th thinks it is a close call, under AEDPA, the decision is not unreasonable. Other evidentiary issues, such as admission of a videotaped deposition, were not unreasonable.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/09/10/18-99009.pdf

2. Ervin v. Davis, No. 16-99010 (9-10-21)(Owens w/Gould & Forrest). This is a Batson remand in a capital case given Flowers v. Mississippi, 139 S. Ct2228 (2019). The record is replete with questionable rulings, and nonsensical reasons for striking jurors. The 9th remanded for the district court to employ a “holistic” approach to various factors, such as statistical evidence, disparate questioning by the prosecutor, side by side juror comparisons, prosecutorial misrepresentation of the record, and other factors.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/09/10/16-99010.pdf

US v. Green, No. 20-50257 (9-8-21)(Callahan w/Hurwitz; partial concurrence and partial dissent by Paez). In a Supervised Release (SR) revocation appeal, the 9th holds a defendant violated one of his SR conditions when he “patronized” a website offering free pornography. The defendant had pled guilty to a CP charge. One of his condition was not to “patronize any place” where sexually explicit materials or entertainment are the primary materials. The defendant clicked on a free porn website. He argues on appeal he had to purchase goods or services for patronization. The 9th rejects this argument, given the court’s oral instructions and the common understanding of the digital world.

Paez, dissenting, finds the panel’s opinion overbroad. The district court had prohibited viewing images or videos depicting sexually explicit conduct. The defendant violated that condition. The panel did not need to conclude that clicking on a website is patronizing it. Further, to Paez, the approach is wrong. The condition is not sufficiently clear. The definition of “patronize” does not support a mere clicking. The district court could have prohibited visiting any website; it didn’t. The panel should not rewrite the condition.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/09/08/20-50257.pdf

US v. Juliano, No. 20-35395 (9-3-21)(VanDyke w/Bea & Bress). It is not IAC for counsel to fail to anticipate enactment of legislation. This is a habeas petition. The petitioner entered into a plea for a drug offense under which the gov’t would only file one enhancement. The petitioner got a benefit, along with a 240-month mandatory sentence. Several months later, the First Step Act was enacted and signed. The 9th cautioned against second guessing under Strickland whether counsel should have waited; the petitioner did get a benefit and the passage of the First Step Act was anything but smooth.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/09/03/20-35395.pdf

US v. Pollard, Jr., No. 20-15958 (8-27-21)(Nelson w/Jack; concurrence by Forrest). To my reading, this is a dangerous habeas opinion regarding “futility.”

This is a Rehaif issue. The petitioner pled to being a felon-in-possession in 2017. In Rehaif v. US, 139 S. Ct. 2191 (2019), the Court required the gov’t to prove a defendant knew he was a felon at the time of the firearm possession. After Rehaif, petitioner filed a 2255.

The majority holds the petitioner did not fulfill the cause prong for procedural default for habeas relief (p.5). He SHOULD have raised the claim because the challenge had been circulating for years, even if it was routinely and expectedly denied by all circuits. The majority distinguishes between a “novel” claim and a “futile” claim. The majority announces the Court does not recognize futility. The petitioner here fails the “cause” prong for procedural default. He also fails prejudice. The latter is meaningless with the first prong being denied.

The concurrence agrees there is no prejudice. The concurrence states the panel need not decide cause because of the failure of prejudice. Also, the concurrence “disagree[s] that Supreme Court precedent dictates the majority’s broad futility-can-never-be-cause rule.” (p. 14). A difference between a claim is futile because a particular court rejects it and one where every circuit for a sustained period has rejected the claim. See Reed v. Ross, 468 US 1, 17 (1984).

To my reading, this decision has far reaching consequences for trial practice and for habeas. Read it and be concerned.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/27/20-15958.pdf

US v. Bartley, No. 20-30034 (8-20-21)(Tashima w/Boggs & Berzon). Can a “Son of God” pack a pistol?  The 9th says “No” under 922(g)(4), which prohibits a person found to be mentally defective or committed to a mental institution from possessing a firearm. In 2011, on a DUI charge, the defendant had been found incompetent.  Diagnosed with schizophrenia, he was restored and released. He then pled to the DUI. In the present proceeding, he was charged with possessing a firearm. He had been acting strangely, shouting, and pointed a gun at a witness. On appeal, he argued the 2011 state competency proceeding did not possess sufficient due process protections; the competency determination was not an adjudication or commitment as it did not require both mental defect and dangerousness; and the statute violates his Second Amendment rights. The 9th rejects the arguments. The state proceeding had sufficient due process protections.  For the second argument, the statute is plain as to a finding of “mental defect” or mental institution. The restoration at a state hospital also fits a mental institution. The 9th rejects the Second Amendment argument as the prohibition falls within a lawful regulatory scheme. It is not unconstitutionally burdensome.

Theodore Blank, AFPD, FPD Services of Idaho, fought hard for the defendant.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/20/20-30034.pdf

US v. Ferguson, No. 19-10228 (8-17-21)(Bumatay w/Thomas & Bress). The 9th affirms a conviction despite a Rule 11 change of plea colloquy error. The defendant made an unauthorized forceful withdrawal from a bank, otherwise known as bank robbery. He pled guilty to bank robbery and conspiracy.

At the COP, which lasted but 10 minutes, the magistrate judge neglected to ask whether the plea was voluntary and whether it was a result of threats or coercion.

Under plain error review, the 9th concluded the error failed to affect substantial rights. The other Rule 11 requirements were all met. In the presentence report, the defendant admitted guilt and expressed remorse. There was no indication of mental issues or of being unaware. The defendant is healthy, held various jobs, and was competent. During the proceeding, he never indicated this plea was anything but voluntary.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/17/19-10228.pdf

1. Hubbard v. US, No. 20-16094 (8-11-21)(per curium w/Nguyen, Owens, and Friedland). The 9th dismisses for lack of subject matter jurisdiction under the Innocence Protection Act (IPA). The petitioner was a serviceman whom a court martial sentenced to life imprisonment for murder and other offenses. The conviction was with no physical evidence. Petitioner sought DNA testing under the IPA. The statute does not state the IPA applies to a court martial. Moreover, the court martial court is dissolved.  Habeas allows the case to be remanded to a federal court if relief is granted. This is not available here.

The per curiam court all concurs (Friedland) with the  per curiam opinion. The concurrence urges Congress to amend the IPA to apply to the military.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/10/20-16094.pdf

2. Jones v. Davis, No. 18-99003 (8-12-21) (Friedland w/Bybee & Lee). On habeas, the 9th reverses the granting of a claim and remands for other claims. The 9th holds the conditioning of a petitioner’s testimony in the guilt phase of a capital case on psychiatric issues to a psychiatric evaluation is not error. It was reasonable under the circumstances.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/12/18-99003.pdf

US v. Prigan, No. 18-30238 (8-16-21)(Murguia w/Boggs & Berzon). The 9th joins six other circuits in holding that a Hobbs Act robbery is not a COV under USSG 4B1.2(a). The six other circuits are the 3d, 4th, 6th, 7th, 10th, and 11th.

Congrats to Fed Defenders Colin Prince and Matt Campbell of Wa E (Spokane).

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/16/18-30238.pdf

US v. Bachmeier, No. 20-30019 (8-13-21)(R. Nelson w/Rawlinson & Christen). The 9th affirms a conviction for a threatening communication to a state judge in violation of 18 USC 876(c). The defendant had threatened a state judge in a state proceeding earlier. He then sought a name change and drew the same judge. He sent a letter asking to dismiss and refile because he had said she could not be impartial because he had stated he intended to kill her family. The threatening was addressed to the Kenai Court House on Alaska but inside had the case caption.

The 9th held a jury could see this was a threat to a person. It was not an amorphous entity but could be found to be a person.

The 9th did find the jury instruction to be error. The model instruction tracks the statute to require the defendant to “knowingly” send a threat. Case law and the Supreme Court require the subjective intent that he knew the letter would be taken as a threat. Although error, it was harmless because the letter could only be taken as threat.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/13/20-30019.pdf