Saturday, June 29, 2019

Case o' The Week: One Good Turn Deserves . . . a stop, a search, and a federal prosecution -- Guerrero and New Rule 12 motions on appeal

  How bad is the “good cause” appellate standard?
  By comparison, plain error looks good!

United States v. Guerrero, 921 F.3d 895 (9th Cir. Apr. 22, 2019), decision available here.

Players: Per curiam decision, with Judges Tashima, Watford, and District Judge Robreno. Hard fought appeal by CD Cal AFPD Gia Kim.

Facts: Guerrero was charged with being a felon in possession of a gun an ammo. Id. at 896. At the evidentiary hearing on a suppression motion, Guerrero, the driver, and officers testified. Id. The cops were credited, and the district court held that the driver’s failure to signal a turn provided a lawful basis for the stop. Id.
  Guerrero entered a conditional plea. Id.
  On appeal, Guerrero presented a new theory – that a driver only has to signal in California if another vehicle on the road is affected by the movement. Id. He argued that because the government had failed to introduce evidence that the alleged failure to signal affected another vehicle, the officers lacked a lawful basis for the stop. Id.
  That ground for suppression had not, however, been advanced in the district court. Id. at 897.

Issue(s): “Guerrero contends that we should align ourselves with the circuits that review untimely defenses, objections and requests for plain error.” Id. at 897.

Held:Were we writing on a blank slate, we might have been inclined to follow their lead. . . . . Nevertheless, as a three-judge panel, we may not forge our own path unless our prior precedent is clearly irreconcilable with the text and history of subsequent legislation or rulemaking.” Id. at 897-98. “[W]e cannot say that our prior precedent is clearly irreconcilable with the amended version of Rule 12. Rule 12(c)(3)’s good-cause standard continues to apply when, as in this case, the defendant attempts to raise new theories on appeal in support of a motion to suppress. Guerrero has not shown good cause for failing to present in his pre-trial motion the new theory for suppression he raises in this appeal. Nor has he challenged the district court’s rejection of the one theory that he did raise below. We therefore affirm the district court’s denial of his motion to suppress.” Id. at 898.

Of Note: It is unusual when the defense wants plain error, but that’s the case here. The nub of the fight is the standard under Federal Rule of Criminal Procedure 12(c)(3), when a party does not make a timely 12(b)(3) motion (like a suppression motion). The Fifth, Sixth, and Eleventh have held that the familiar plain error standard applies in that situation. Id. at 897. Other circuits review for the amorphous “good cause” standard. Id. In this per curiam decision, the panel sticks by Ninth precedent that concludes it is “good cause” (although there is the strong sense that they think the plain error approach is a better solution).

How to Use: Bring it in the district court, or face the “good cause” gauntlet on appeal. What motions are affected by this holding? Rule 12(b)(3) includes the following: “a defect in instituting the prosecution, including: improper venue; preindictment delay; a violation of the constitutional right to a speedy trial; selective or vindictive prosecution; and an error in the grand-jury proceeding or preliminary hearing; a defect in the indictment or information, including: joining two or more offenses in the same count (duplicity);charging the same offense in more than one count (multiplicity); lack of specificity; improper joinder; and failure to state an offense; suppression of evidence; severance of charges or defendants under Rule 14; and discovery under Rule 16.”
For Further Reading: Last week Senator McConnell filed a cloture motion on the nomination of Mr. Daniel Bress to the Ninth Circuit.  See Nomination report here. Senator Feinstein is not enthused. See Sen. Feinstein statement here   A vote on Mr. Bress’s nomination is expected after the July 4th recess. See here.

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Steven Kalar, Federal Public Defender. Website at


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Sunday, June 23, 2019

Case o' The Week: No Old Know, but Now New Knew - Benamor and Knowledge Requirements in Sec. 922(g)(1) Cases

   Taking antique shotguns for granted?
   Fine for the government.
   (Less fine with Vinnie Jones).
United States v. Benamor, 2019 WL 2375885 (9th Cir. June 6, 2019), decision available here.

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

Facts: Cops found a shotgun in a van which Benamor, a felon, had driven. Id. at *1. Benamor went to trial on § 922(g) charges. Id. at *2. 
  At trial, an agent testified the shotgun could not have been manufactured before 1915. Id. Benamor moved for a Rule 29 and for instructions that the government had to prove that he knew the gun was manufactured after 1898. Id.  The motions were denied and Benamor was convicted. Id.

Issue(s): “Because firearms manufactured in or before 1898 do not qualify as ‘firearms’ under § 922, Defendant argues that the district court erred by refusing to instruct the jury that, to convict, they had to find that Defendant knew that his firearm was manufactured after 1898.” Id. at *1. 
  “Although Defendant’s shotgun was old, it was not ‘antique’ within the statutory definition, because it was manufactured after 1898. Defendant does not dispute that his shotgun met § 921(a)(3)’s definition of a firearm. Yet he argues that the government was required to prove his knowledge that the shotgun lacked the antiquity that would have placed it beyond § 922(g)’s reach.” Id. at *2.

Held: “Every circuit to address the ‘antique firearm’ exception in the criminal context has held that the exception is an affirmative defense to a § 922(g) prosecution, not an element of the crime.” Id. at *3. 
  “We affirm.” Id. at *1.

Of Note: In addition to the “antique” holding, Benamor also has an interesting Confrontation Clause analysis. Id. at *4. In the guise of “effect upon a witness,” the AUSA elicited incriminating hearsay statements from Benamor’s landlord to the cop. Id. The AUSA then argued this hearsay in closing. 
  The Court finds a Confrontation Clause / Crawford error (although it declines to reverse). Id. at *5. Nonetheless, Benamor is useful to brush-back when an AUSA smuggles testimonial hearsay through an “effect on the hearer” theory.

How to Use: Benamor is, respectfully, wrong – at least as it recounts the elements of a federal gun case.
  Quoting the (now erroneous) Ninth’s en banc decision in Nevils, Judge Graber explains that “To convict someone under § 922(g)(1), the government must prove three elements:
  (1) the defendant was a felon;
  (2) the defendant knowingly possessed a firearm or ammunition; and
  (3) the firearm or ammunition ‘was in or affecting interstate commerce.’” Id. at *2.
  At least as of Friday, that list is missing an element. In the Rehaif decision delivered June 21st, Justice Breyer writes that in a § 922(g)(1) prosecution, “the word ‘knowingly’ applies both to the defendant’s conduct and to the defendant’s status. To convict a defendant, the Government therefore must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.” Rehaif v. United States, 2019 WL 2552487, at *2 (emphasis added), available here.
  Did Benamor’s indictment allege that he knew that he was a felon? Was the jury instructed that it had to find that Benamor knew he was a felon? Was there any evidence in this trial that Benamor knew of his status as a felon? No, no, and most likely, no.
   The Benamor decision happens to have a nice little discussion of “knowledge” in the context of § 922(g)(1) cases. See id. at *2 (discussing Beasley, 346 F.3d 930, 934 (9th Cir. 2003)); id. at *3 (discussing Staples). Glom these “knowledge” cases onto Rehaif’s “knew status” element –much mischief awaits.     
For Further Reading: Our gun cases are getting a hard Rehaif review this weekend. While mulling, remember the recent Ninth Circuit win in Bain. In Bain, Judge Tashima booted a deficient plea that was missing facts supporting an essential element -- a fact pattern that now resonates with hundreds of federal gun cases after Rehaif. See Bain blog entry here.
  Consider also James, 987 F.2d 648 (9th Cir. 1993) (reversing when gov’t failed to prove FDIC element in bank robbery trial), available here 

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


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Monday, June 17, 2019

Kirkpatrick v. Chappell, No. 14-99001 (6-13-19)(Bea w/Wardlaw & Christen). The 9th affirmed the denial of a capital habeas. The case presented a convoluted procedural history, where the petitioner waived claims, and issues of petitioner’s competency were raised. At the original panel hearing the case had Reinhardt and Kozinski. In this opinion, the 9th held that aggravating evidence that the petitioner had threatened a neighbor and even poisoned dogs did not have a substantial or injurious effect on the jury’s decision. The 9th additionally held that petitioner failed to present clear and convincing evidence that rebutted the California Supreme Court’s finding that petitioner waived his state habeas exhaustion petition.

Hard fought appeal by Patricia Young and Mark Drozdowski, Deputy FPDs, FPD Cal Central (Los Angeles).

The decision is here:

Sunday, June 16, 2019

Case o' The Week: Error Plain Here Government's Bain -- Bain, Rule 11 Plea requirements, and Armed Bank Robbery

 A closed knife just won't cut it.
United States v. Bain, 2019 WL 2426145 (9th Cir. June 11, 2019), decision available here.

 Players: Decision by Judge Tashima, joined by Judge M. Smith and DJ Piersol.  

 Facts: Bain, a heroin addict, robbed several banks without a weapon. Id. at *1. At the last bank, he accidentally pulled a closed pocket knife from his pocket, along with a plastic bag for the loot. Id. 
  (Bain later explained he did not intend to cause fear or intimidate the teller with the knife. Id.)
  Bain plead open to unarmed and (for the bank with the knife) armed bank robbery. Id. The defense didn’t object to the sufficiency of the plea for the armed robbery count. Id. 
  Bain was sentenced to 197 months on the armed robbery count, and 137 months (concurrent) on the unarmed robbery counts. Id. at *2.

Issue(s): “On appeal, Bain contends that the district court violated Federal Rule of Criminal Procedure 11(b)(3) by entering judgment on Bain’s guilty plea without a sufficient factual basis for the plea. During the robbery, which Bain admitted committing, Bain inadvertently placed a closed pocket knife on the bank’s counter while pulling a plastic bag out of his pocket.” Id. at *1.
  “[T]he only issue before this Court is whether there was a sufficient factual basis to meet the statutory requirement of ‘puts in jeopardy the life of any person by the use of a dangerous weapon or device.’ More specifically, we focus on what constitutes the “use” of a dangerous weapon during a bank robbery.” Id. at *3.

Held:We hold that this action did not ‘put[ ] in jeopardy the life of any person by the use of a dangerous weapon,’ which is a requirement for armed bank robbery under 18 U.S.C. § 2113(d). Because the district court committed plain error in accepting Bain’s guilty plea without a sufficient factual basis, and the error affected Bain’s substantial rights, we reverse Bain’s conviction for armed bank robbery, vacate his sentence, and remand for further proceedings.” Id. at *1.

Of Note: Judge Tashima explains that on these facts, the “silent presence of a knife on the counter” was not “obvious and forceful,” so the knife wasn’t “used” for the robbery. There was not, therefore, a sufficient factual basis for the plea. Id. at *4.
   So, does that count now go away? 
  Sadly, no: the Ninth presumes that jeopardy has not attached. The government can take that count to trial, reduce it to an unarmed bank robbery charge, or dismiss it. Id. at *5 & n.6. 
  Query how a trial on this charge would survive a Rule 29 motion, if these facts didn’t cut Rule 11 mustard for the Ninth? Maybe a jury would disbelieve Bain’s account about the knife – although tough to imagine how the government would thread this element’s needle, after this decision by the Ninth.

How to Use: There are two interesting appellate nuggets in Bain. First, Judge Tashima engages in a helpful “substantial rights” analysis as part of the “plain error” issue. Id. at *4. He concludes that, but for this Rule 11 mistake, Bain would have gone to trial – so he earns a plain error reversal for this Rule 11(b)(3) problem. Id.
  Bain is also helpful for the idea that sentences become “unbundled” when one count is reversed, requiring an entirely new sentencing package on remand. Id. at *5.
For Further Reading: Last week, Judge Carlos Bea announced his plans take senior status upon the “nomination, confirmation and appointment of his successor.” See article hereJudge Bea was nominated to the Ninth by President George W. Bush. See article here

The Honorable Judge Carlos Bea
Judge Bea’s spot is President Trump’s ninth, Ninth, slot – with Patrick Bumatay rumored to be a lead candidate for the position. See Washington Times article here 

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


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Thursday, June 13, 2019

Gouvela v. Espinda, No. 17-16892 (6-12-19)(Berzon w/Wardlaw & Rawlinson).  The 9th affirms habeas relief arising from granting a mistrial without manifest necessity. 

In a state manslaughter trial, the jury came back with a verdict.  Before the verdict was read, the jury expressed concern about a “menacing looking” man seated on the prosecutor’s side of the courtroom. The jurors, being questioned, said that this did not affect the verdict. Yet the court granted a mistrial, because there was nothing it could do.

The 9th held there was. The court could have instructed, taken steps, or assured the jury about matters.  The verdict had not been recorded yet.  The petitioner had the right to a trial.  And, all the parties, including the court, felt that it would be an acquittal. Thus, because of the protections of the double jeopardy clause, the granting of habeas relief was affirmed.

On appeal, the state raised a jurisdictional argument. The state argued that 28 U.S.C. § 2241 does not cover double jeopardy writs.  The strength of the argument was summed up by the opinion’s conclusion why the 9th had not previously addressed this point: “Our gap on this point is understandable, as it is rare that we are asked to address an argument so transparently without merit.” (8).

Oh yes, what was the sealed verdict the jury had returned before the mistrial?  “Not Guilty.”

Congrats to Peter Wolff, FPD Hawaii, for the win.

The decision is here:

Tuesday, June 11, 2019

US v. Bain, No. 17-10107 (6-11-19)(Tashima w/M. Smith & Piersol). The 9th reverses a plea to armed bank robbery, vacates the sentence, and remands.  The 9th concludes that defendant’s inadvertent placing of a closed pocket knife on a bank counter, while he was pulling a plastic bag out of his pocket, did not constitute “use” of a dangerous weapon.  The error was plain and affected substantial rights.

Congrats to Tonya Peterson, CJA in Az (Phoenix), for the win.

The decision is here:
US v. Yong, No. 17-16017 (6-7-19)(Cardone w/Berzon & Friedland). This habeas revolves around petitioner’s efforts to vacate his misdemeanor guilty plea to operating an unlawful sports betting operation.  The petitioner argued before the district court and on appeal that his guilty plea was coercive and that pervasive government misconduct made the plea involuntary.  The 9th affirms the district court’s denial of the petition.

The petitioner and others, including his son, were charged with felonies regarding illegal sports betting operations. The defendants filed a motion arguing for suppression of evidence for Fourth Amendment violations and for government misconduct.  Subsequent to the motions, but before the ruling, the petitioner and others entered a group plea. One of the stipulations was that the charges against petitioner’s son would be dropped.  Petitioner went through the rule 11 colloquy and was sentenced to five years unsupervised probation, forfeiture of certain property, and agreement to leave the United States for five years.  Two defendants pressed forward, and the district court suppressed the evidence.

The 9th reviewed the jurisprudence on pleas, group pleas, coercion, and evidence of misconduct. The 9th concluded that there could only be an involuntary plea here if, at the time of the charges, no probable cause existed to bring charges against the son. The 9th concluded there was (the grand jury indicted). The plea further was not involuntary when the petitioner knew of the allegations of misconduct, and struck a deal regardless.

The decision is here:

US v. Benamor, No. 17-50308 (6-6-19)(Graber w/Bybee & Harpool). Who has the burden to prove a firearm was manufactured after 1898? Not the government! It is an affirmative defense carried by the defendant.

The defendant is a prohibited possessor.  He was found with a shotgun and ammo. At trial, on 922(g)(1), the prosecution proved that the defendant was (1) a felon; (2) he knowingly possessed a firearm; and (3) the firearm affected interstate commerce.  At the close of evidence, the defendant moved for acquittal and also asked for a jury instruction. The defendant argued that the 921(a)(3) exception defining a firearm – does not include an antique firearm manufactured before 1898 – was an element of the offense. The prosecution did not present evidence that the shotgun was manufactured after 1898. The court denied the motion and declined the jury instruction.

On appeal, the 9th affirmed.  The defendant first focused on a categorical defense and a mens rea defense.  The defendant argued that under a categorical approach, the statute was overbroad; however, the categorical approach does not apply here in this criminal prosecution, where the elements are set out. A conviction can establish certain factors that are not themselves elements of the offense.  The 9th held too that Staples, involving a mens rea of knowing a weapon was automatic, does not apply. Staples involved a general provision involving automatic weapons and not a distinct clause which is an exception.

This leaves the defense of an antique firearm. The 9th held that precedent in this circuit and others characterized the exception as an affirmative defense.  The defendant failed to produce any evidence that the firearm was that old to justify giving an affirmative defense instruction much less finding insufficient evidence.

The 9th did find a confrontation clause violation. The agent has elicited information from the landlord about the defendant having a very old firearm. This testimony violated the confrontation clause.  However, it was harmless.

The decision is here:

Friday, June 07, 2019

Case o' The Week: Ninth Gets Flight Right - Brown, Flight, and Reasonable Suspicion

 “Innocent” flight, a Fourth delight.
United States v. Daniel Derek Brown, 2019 WL 2364504 (9th Cir. June 5, 2019), decision available here.

Players: Decision by Judge McKeown, joined by District Judge Gaitan, Jr. Concurrence by Judge Friedland.  

Facts: An anonymous YWCA resident told an employee they saw a man with a gun. Id. at *2. The employee – who never saw the gun – called 911. The employee who called 911 repeated the resident’s description: “a young, black man of medium build with dreadlocks, a camouflage jacket, and red shoes.” Id. No suspicious or criminal activity was alleged by the resident, or in the 911 call.
  Police saw Brown, who matched the description. They followed him: he ran. Brown was stopped, searched, and a gun, drugs, and money were found. Id.
  Brown moved to suppress, arguing there was no reasonable suspicion under Terry for the stop. Id. The motion was denied.

Issue(s): “Recognizing that an officer may only ‘conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot,’ Wardlow, 528 U.S. at 123, 120 S.Ct. 673, we must consider whether the officers' stop of Brown met this standard.” Id. at *2.

Held: “We reverse.” Id. at *2.
   Here, the lack of facts indicating criminal activity or a known high crime area drives our conclusion. The Metro officers who stopped Brown took an anonymous tip that a young, black man ‘had a gun’—which is presumptively lawful in Washington—and jumped to an unreasonable conclusion that Brown's later flight indicated criminal activity. At best, the officers had nothing more than an unsupported hunch of wrongdoing. The government’s effort to rest reasonable suspicion on the tip and Brown's flight fails to satisfy the standard established by Terry and Wardlow. The combination of almost no suspicion from the tip and Brown's flight does not equal reasonable suspicion.” Id. at *2.

Of Note: Critical to Brown’s win was the fact that the tip was from an unidentified tipster (through the identified employee, who called 911). Use Brown to rebuff government attempts to bolster anonymous tipsters who feed their tips through identified callers – it doesn’t work that way. Id. at *3 (“Even though [the YWCA employee] identified herself, the actual source of the tip—the resident—remained anonymous.”)

How to Use: Wait – Brown fled.
   And won?
  Judge McKeown provides a very thoughtful explanation that flight is just a factor – not an automatic end to the suppression analysis. As she writes, “No one disputes that once the Metro officer activated his patrol car lights, Brown fled. But the Supreme Court has never endorsed a per se rule that flight establishes reasonable suspicion. Instead, the Court has treated flight as just one factor in the reasonable suspicion analysis, if an admittedly significant one.” Id. at *4.
  In a particularly fascinating discussion, Judge McKeown makes some welcome and common sense observations about Brown’s race, and how that fact must enter into the “flight” analysis: “Given that racial dynamics in our society—along with a simple desire not to interact with police—offer an ‘innocent’ explanation of flight, when every other fact posited by the government weighs so weakly in support of reasonable suspicion, we are particularly hesitant to allow flight to carry the day in authorizing a stop.” Id.
  (Didn’t help the government that Seattle PD is under a consent decree for race-based policing issues). Id. at *5 &n.2.
   Brown is a must-read for any case involving suppression issues and flight.
For Further Reading: When a black person flees the police, should race matter in the reasonable suspicion analysis?
  Of course.
  As the Massachusetts Supreme Court has explained, “[W]here the suspect is a black male stopped by the police on the streets of Boston, the analysis of flight as a factor in the reasonable suspicion calculus cannot be divorced from the findings in a recent Boston Police Department (department) report documenting a pattern of racial profiling of black males in the city of Boston.”
  For a succinct analysis of the landmark Warren decision, see article here

Steven Kalar, Federal Public Defender. Website at


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Thursday, June 06, 2019

US v. Brown, No. 17-30191 (6-5-19)(McKeown w/Gaitan; concurrence by Friedland). The 9th suppresses evidence for an illegal stop.  The police received an anonymous tip that a black man was carrying a gun, and a description of what he was wearing. The call came from a YWCA.  The police spotted the defendant, who was African American. The police car slowly followed him, and then Brown ran. The police caught up with him, and upon a Terry stop, found a gun.  Further searching drugs.  The 9th suppressed for lack of reasonable suspicion being afoot. There was no indication that illegal activity was taking place, or that threats were being made, or that a crime occurred. The defendant did flee when the police spotted him.  The 9th though would not let flight by itself be a determining factor given the lack of other indicia.

Concurring, Friedland stressed that carrying a concealed weapon is legal in Washington. The concurrence notes that guns are a problem in this country, and police can investigate, but they have to act in conformity with the law. 

The concurrence further stressed that the record does not indicate that then police stopped the defendant because he was African American.

The decision is here: 

Monday, June 03, 2019

US v. Knotek, No. 17-55572 (6-3-19)(Paez w/Parker & Clifton). This is an extradition habeas. The 9th held that the government could extradite a US citizen to serve a two decades old sentence because, well, it could. The government has authority under 18 U.S.C. § 3196, which governs US citizens and extradition. The government has discretion to ship its citizens to foreign countries so long as a treaty does not forbid it. The treaty with the Czech Republic allows it. It is up to the government to exercise discretion. It did so here. Moreover, the conviction, for attempted extortion, is an offense in both countries.

The defendant’s arguments regarding constitutionality was rejected by the 9th. This follows the Sixth Circuit and other circuits. The government has discretion.

The defendant also lost in arguing that the attempted extortion was without merit and that he had a “claim of right” defense. That is, he pointed out the economic harm to the “victims” that might befall. The 9th found that there was a reasonable basis to find attempted extortion.  This is not unreasonable.

A hard fought effort with a lot of treaty and statutory fine print by Sonam Henderson and Kathryn Young, AFPDs In Cal Central (LA). Extradition matters are always tough sledding.  

The decision is here:
US v. Graves, No. 16-50276 (5-30-19)(Clifton w/Paez & Katzmann). The 9th vacates a life sentence under 851 and remands for resentencing. The 9th found one of the prior drug convictions to be overbroad and nondivisible. The statute is California Penal Code 4573.6 (2007), which is inmate drug possession. This statute includes drugs not in the federal drug statute, and has a single set of elements for the offense — thus it cannot be a categorical match. Since it cannot be a predicate, then the mandatory sentence of 851 must be vacated.

The case is remanded for resentencing even though the district court stated a life sentence would be appropriate under 3553. The defendant had not submitted a sentencing memo nor submit to a PSR interview because he was facing a mandatory life sentence. The district court should get to consider the submissions.

Congrats to counsel Devin Burstein and Jeremy Warren of San Diego.

The decision is here:
US v. Johnny Ellery Smith, No. 17-30248 (5-28-19)(Callahan w/Clifton; Fisher concurring). This is an Indian jurisdiction case. The defendant, an enrolled member of the Warm Springs tribes, was charged in federal court within two state counts for fleeing or attempting to elude a peace officer. He was not charged in tribal court. 

Defendant argues (1) that the Assimilative Crimes Act (ACA) does not apply to Indian Country. He acknowledges precedent but argues that these courts merely assumed applicability and did not directly address it. (2) Even if ACA applies, defendant argues, it is jurisdictionally barred because he could have been prosecuted under tribal law. (3) Lastly, the Major Crimes Act occupies the field of federal jurisdiction for Indian criminal defendants.

The 9th rejects all these arguments. It holds that ACA applies through 18 U.S.C. §§ 7 and 1152. The 9th concludes it does, even assuming other courts, including the Supremes, had never grappled with the issue. The 9th finds jurisdiction under its own analysis of the statutes and from the circuit’s prior precedent.

The 9th holds too that if ACA applies, it is subject to exceptions in the Indian Country Crimes Act. Namely, (1) if an offense is committed by one Indian on another Indian, or property of another Indian; (2) if the defendant had already been punished by the tribe; and (3) if treaty stipulations bar such prosecutions. None of these exceptions apply here. The 9th finds that federal jurisdiction for Indian on Indian crime does not involve victimless offenses, such as occurred here. Further, if a tribe could have brought a charge does not mean there is a bar. The tribe had to charge. Finally, the Major Crimes Act does not bar the charge. Congress extends exclusive federal jurisdiction for certain offenses; it did not preclude ICCA jurisdiction for other offenses. 

Fisher concurs. He agrees that ACA applies. However, rather than find ACA as a general law applicable, subject to ICCA,; he would find it applicable through ICCA. Either way, ACA applies.

Valiant argument by AFPD Conor Husby of FPD Oregon (Portland). The defense arguments are worth pondering in view of the special jurisdiction addled and respect for tribal sovereignty. 

The decision is here:


Sunday, June 02, 2019

Case o' The Week: Ninth's Not Life-Affirming - Graves and the Categorical Analysis of Section 851 Priors

We dig Graves.
United States v. Graves, 2019 WL 2293421 (9th Cir. May 30, 2019), decision available here.

Players: Decision by Judge Clifton, joined by Judges Paez and Court Int’l Trade Judge Katzmann.

Facts: Graves was charged with meth and marijuana offenses. Id. at *1. Before trial, the government gave notice under 21 USC § 851 of its intent to seek a life sentence based on two drug priors. Id. One of those convictions was for Cal. Penal Code § 4573.6, “inmate drug possession.” Id. The district court held that the priors qualified as “felony drug offenses” that triggered the enhancement.
  Graves was found guilty, and under the Section 851 enhancements, sentenced to the mandatory-minimum term of life. Id. 
  The District Court then went on to conduct a separate § 3553 analysis, to “perfect the record and to make clear that if the court were to exercise discretion, if it had any to impose a sentence at less than life, it would not.” Id.

Issue(s): “[  ] Graves challenges the life sentence imposed by the district court after it concluded he had two prior felony drug offenses under 21 U.S.C. § 841(b)(1)(A), mandating a sentence of life imprisonment. The district court concluded that his two prior convictions, including for a violation of California Penal Code § 4573.6, qualified as predicate felony drug offenses.” Id. at *1. 
  “Graves argues the district court erroneously concluded his . . . § 4573.6 conviction qualified as a felony drug offense because the statute is both overbroad and not divisible.” Id. at *2.

Held: We conclude that Graves’ section 4573.6 conviction does not qualify as a predicate offense and therefore vacate his sentence and remand for re-sentencing.” Id. at *1. “There is no dispute that section 4573.6 criminalizes controlled substances under California law that are not regulated under federal law, so the statute is overbroad . . . .We therefore must determine if the statute is also divisible.” Id. at *2.
  “We conclude that the statute is not divisible based on the plain text, state court decisions, and the contrast to convictions under the California Health and Safety Code.” Id. at *3. “We conclude . . . that California Penal Code § 4573.6 is not a divisible statute and therefore cannot be a categorical “felony drug offense” triggering a “mandatory term of life imprisonment” under 21 U.S.C. § 841(b)(1)(A) (2016).” Id. at *4.

Of Note: In Graves, the government and the district court again try the old “belt and suspenders” approach to sentencing. 

Even if the original mand-min sentence was legally incorrect, the district judge assures us, the judge still would give a life sentence. Seizing this assurance, on appeal the government argued it was unnecessary to vacate the life sentence, because the D.J. “perfect[ed] the record” and promised that a life sentence would still be imposed under the Section 3553 factors. (Notably, the district court reached this decision despite the fact that the defendant had not participated in a PSR interview, or submitted a sentencing memorandum, due to the mandatory life term.) Id. at *4.
  Yet again, the Ninth rejects this effort to inoculate against appellate review, vacates the sentence, and remands for a fresh new sentencing (hopefully with some First Step Act love thrown in). Id. at *4.

How to Use: Does the categorical approach even apply to Sec. 851 priors? The government argued that it was “far from clear” that it does. Id. at *2 & n.3. Judge Clifton “was not convinced,” and the Court “resort[s] to the categorical approach in this context.” Id. at *2. 
  To the extent it was in question, Graves seals the deal: Section 851 priors are subject to the familiar categorical analysis approach.  
For Further Reading: Under the First Step Act of 2018 (“FSA,”) Mr. Graves may be looking at mandatory term far below “life.” 
   For a thoughtful piece touting the FSA, see The First Step Act is a Major Step for Sentencing Reform, by former Sentencing Commission Chair, Judge Patti Saris, available here.

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



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