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).