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United States v. McIntosh et al., — F.3d — (9th Cir. Aug. 16, 2016): Appropriations rider bars Department of Justice from spending funds to prosecute marijuana distributors who comply with state laws (for now)

Ever wonder how it’s supposed to work when state laws permit something that federal law prohibits? Ever worry that such a situation could give rise to a mess of eleven consolidated cases raising complex issues of supremacy, standing, separation of powers, and legislative interpretation? Your worries were unfounded: There were only ten.

The Department of Justice prosecuted these ten marijuana distributors, all of whom claimed to be in compliance with their respective states’ marijuana laws, under the federal Controlled Substances Act. The defendants moved to enjoin their prosecutions, pointing to a rider to an omnibus appropriations bill specifying that none of the funds appropriated for DOJ could be used to prevent states that have legalized marijuana from “implementing” their marijuana laws. Their motions were denied, and they took interlocutory appeals. The Ninth Circuit first addressed jurisdictional matters. Interlocutory appeals are seldom permitted in criminal cases, but here the court found that they were authorized by 28 U.S.C. 1292(a), which vests circuit courts with jurisdiction over orders refusing injunctions. (The court was careful to note that this trick will not work most of the time: district court orders “relating solely to requests to stay ongoing federal prosecutions” are not appealable, but here what the defendants actually sought was not to stay their prosecutions but to enjoin DOJ from spending funds in violation of the rider.) The defendants had standing, because they faced the imminent concrete injury of incarceration, and they were appropriate parties to vindicate separation of powers concerns — which are, after all, ultimately intended to protect individual liberty.

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A unanimous panel of the D.C. Circuit (Millett, Ginsburg, Sentelle, JJ), vacated a 230-month sentence of incarceration, coupled with 96 months of supervised release, imposed following appellant’s conviction of a 21 U.S.C. § 841 PCP trafficking offense. After rejecting several merits-based arguments, including another thorough discussion of Rule 404b), F. R. EVID., standards (see this column’s recent blog on United States v. Burnett, _ F.3d _ (D.C. Circuit, No. 13-3075, July 8, 2016), the Court of Appeals found plain error in the Trial Judge’s conclusion that Dante Sheffield’s 2007 local conviction for attempted robbery justified a Career-Offender enhancement under the Sentencing Guidelines.

Writing for the panel, Circuit Judge Millett noted that the Government – to its credit – agreed that the sentence enhancement was mistaken. (Slip Op. at 26). Judge Millett explained that “[t]he Guidelines define ‘crime of violence’ as a state or federal offense that is punishable by imprisonment for a term exceeding one year, and that: ‘(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” (Id.) (quoting U.S.S.G. § 4B1.2(a)). The first clause is commonly known as the “elements” clause and the other is often referred to the “residual clause.” (Slip Op. at 26) (citing Welch v. United States, 136 S. Ct. 1257, 1261 (2016)). But here, Judge Millett noted, the Trial Judge had “never specified which clause of the “crime of violence” definition it believed applied to Sheffield’s attempted robbery conviction. Nor did the Presentence Report or the government’s sentencing memorandum.” (Slip Op. at 26).

It is the Government that has the burden of proving any facts that may be relevant in sentencing under United States v. Price, 409 F.3d 436, 444 (D.C. Cir. 2005), but here it introduced no evidence into the district court record specifically demonstrating that the attempted robbery was a crime of violence under the “elements clause.” (Slip Op. at 26-27). Nor did Sheffield’s prior conviction fall under the “residual clause,” for a host of decisions under the Armed Career Criminal Act’s (“ACCA”) identically-worded residual clause (18 U.S.C. § 924(e)(2)(B)), had found that statute unconstitutionally void for vagueness. (Slip Op. at 27-28) (citing, inter alia, Johnson v. United States, 135 S. Ct. 2551 (2015); In re Sealed Case, 548 F.3d 1085,1089 (D.C. Cir. 2008)).

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A criminal defendant has a right to testify in his own defense. But exercising that right carries risks. He could make a bad impression. The government could conduct a damaging cross-examination. And if the jury’s verdict necessarily reflects a flat rejection of his testimony, he could be deemed to have sought to obstruct justice through perjury, triggering a sentence enhancement under Section 3C1.1 of the Sentencing Guidelines. But if that enhancement is too readily applied, it could “chill” defendants from giving even non-perjurious testimony, and thereby unduly infringe upon their right to testify. To guard against this, the Ninth Circuit held, in United States v. Castro-Ponce, 770 F.3d 819 (9th Cir. 2014), that the enhancement may not be applied unless the district court expressly finds that: (1) the defendant gave false testimony, (2) on a material matter, (3) with willful intent. In Mr. Herrera-Rivera’s meth-possession sentencing the district court imposed the enhancement without making these findings, instead merely noting that it found his version of events “tenuous at best.” Finding that the clear rule of Castro-Ponce was breached, the Ninth Circuit found plain error and vacated Mr. Herrera-Rivera’s sentence. Notably, the court rejected the government’s argument that Mr. Herrera-Rivera’s substantial rights were not affected because the sentence fell below the Guidelines range, noting that the Supreme Court recently stated, in Molina-Martinez v. United States, 136 S. Ct. 1338, 1345 (2016), that “[w]hen a defendant is sentenced under an incorrect Guidelines range—whether or not the defendant’s ultimate sentence falls within the correct range—the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error.”

(Congratulations to Thomas P. Matthews, Law Office of Thomas P. Matthews, San Diego, CA)

(Dan Kaplan is an Assistant Federal Public Defender in Phoenix, Arizona.)

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United States v. Benally, — F.3d —, 2016 WL 4073316 (9th Cir. 2016): Involuntary manslaughter is not a “crime of violence”

Depending on who you believe, defendant either coldly knelt down, aimed, and shot his neighbor through the heart, or recklessly shot him by accident while the two were playing a “drunken game” with a rifle. The jury went with version two, convicting him of the lesser-included offense of involuntary manslaughter. The second count in the indictment was for use of a firearm during a “crime of violence” in violation of 18 U.S.C. 924(c), where the purported “crime of violence” was the homicide. Defendant’s counsel objected to the jury being instructed that involuntary manslaughter was a “crime of violence,” arguing that reckless crimes do not qualify. But the government produced a Ninth Circuit case, United States v. Springfield, 829 F.2d 860 (9th Cir. 1987), that held that involuntary manslaughter is a crime of violence, and the district court found that Springfield was controlling. This was a mistake, because – as the government acknowledged on appeal – Springfield had been abrogated by Leocal v. Ashcroft, 543 U.S. 1 (2004), and its Ninth Circuit progeny, which have established that reckless crimes are not “crimes of violence” pursuant to Section 924. The Ninth Circuit accordingly held that Springfield is no longer good law, that involuntary manslaughter is not a “crime of violence,” and that defendant’s Section 924(c) conviction and associated 10-year consecutive sentence must be vacated.

(Modesty prevents this blogger from identifying the attorney to whom congratulations might be directed.)

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Mutt: I’m looking for my quarter I dropped. Jeff: Did you drop it here? Mutt: No, I dropped it two blocks down the street. Jeff: Then why are you looking for it here? Mutt: Because the light is better here! Jeff: [question mark hovers over head]. It has a point, the question mark hovering over Jeff’s head: Why orient your search to where the light is better, as opposed to where you’re more likely to find what you want? And yet it appears that some circuit courts, faced with the question of whether a district court may contradict affirmative jury findings that appear to limit the court’s sentencing discretion, have looked where “the light is better” – i.e., where there is an abundance of very familiar, sort-of-but-not-really-on-point precedent – rather than the obscure corner where the answer lies. Not so the Ninth Circuit. Continue reading →

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For short (and short-ish) summaries of recent (and recent-ish) 9th Circuit criminal defense wins in involving cell phone searches, restitution, fraud, appeal waivers, crimes of violence, violent felonies, the Excessive Fines Clause, the Marks Rule, the Fair Sentencing Act, fictitious financial instruments, conspiracy, minor role, supervised release conditions, forcible medication, attempted illegal reentry, home searches, guilty plea colloquys, confrontation, the Assimilative Crimes Act, the Court Interpreter’s Act, mail fraud, and perjury, click on “continue reading” below: Continue reading →

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A unanimous panel of the D.C. Circuit (Tatel, Srinivasan and Pillard, JJ), found error and vacated for lack of jurisdiction a 36- month term of imprisonment imposed on an appellants who had violated his conditions of supervised release by committing another felony offense.

One would hope that Brian Marsh, who had completed his 63-month sentence for drug dealing and was on a four year term of supervised release, would have stayed out of trouble. Alas, that was not to be: nine months before his supervised release was to end, Mr. Marsh was indicted, arrested, and detained for new trafficking offenses. He pled guilty to those charges and was sentenced – in both instances after his original term of supervised release had expired. That new term brought Mr. Marsh a 150-month term and another five years of supervised release.

Doubtless displeased with Mr. Marsh’s misadventures, the Government successfully petitioned for revocation of his earlier supervised release. The trial judge who presided over Marsh’s first case agreed. Mr. Marsh thus found himself tagged with an additional 36 months of imprisonment, to commence after serving the new charges. (The 36-months was the statutory maximum under 18 U.S.C. § 3583(e)(3).)

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A unanimous panel of the D.C. Circuit (Kavanaugh, Srinivasan and Pillard, JJ), found error and vacated a 12 year and seven month sentence imposed on one of several appellants who were found guilty of a 21 U.S.C. § 846 heroin trafficking offense. After rejecting several merits-based arguments, including a thorough discussion of Rule 404b), F. R. EVID., standards, the Court of Appeals examined the three appellants’ sentencing claims. One of those issues struck home: the contention raised by Appellant Burnett that the Trial Judge had mistakenly based the sentence in part on drug distributions that occurred before Burnett joined the conspiracy.

Writing for the panel, Circuit Judge Kavanaugh explained that “[t]he Sentencing Guidelines limit the relevant conduct that may be attributable to a co-conspirator: (1) The acts must be in furtherance of the conspiracy to which the defendant agreed; and (2) the acts must be reasonably foreseeable to the defendant.” (Slip Op. at 18) (citing United States v. Childress, 58 F.3d 693, 722 (D.C. Cir. 1995)). Further, Judge Kavanaugh pointed out that “when calculating a sentence, a district court may not attribute to a defendant conduct that occurred before he joined the conspiracy.) (Slip Op. at 21) (emphasis original) (citing U.S.S.G. § 1B1.3, Application Note 3).

Burnett conceded that his counsel below had failed to raise that claim. As a result, the issue was governed by a plain error standard: “The Supreme Court recently explained that plain error in the Guidelines calculation context means this: A defendant must demonstrate ‘a reasonable probability that, but for the error, the outcome of the proceeding would have been different.’” (Slip Op. at 21) (quoting Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016) (internal quotation marks omitted)). Moreover, “[i]n the sentencing context, a defendant who demonstrates that he was sentenced under an incorrect Guidelines range will typically have demonstrated a reasonable probability that the outcome of the proceeding would have been different but for the error.” (Slip Op. at 21) (citing Molina, 136 S. Ct. at 1345).

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The D.C. Circuit, in an exhaustive opinion discussing the federal wiretap laws and other issues frequently encountered in narcotics prosecutions, reversed one appellant’s conviction because an FBI agent who testified as a “two-hatted expert,” offering expert and lay opinion testimony, was erroneously allowed to offer his lay opinion as to the meaning of otherwise ambiguous or innocent-sounding phrases overheard in intercepted communications in which that appellant had spoken with various alleged co-conspirators.

In United States v. Henry Williams, the Government prosecuted several individuals for engaging in a cocaine trafficking conspiracy. Among other issues, Williams argued on appeal that the trial judge should not have allowed the “case agent” to have rendered his “lay opinion,” purportedly offered under Rule 701, Fed. R. Evid., of what Williams supposedly was talking about in a number of wiretapped conversations. Under the guidelines laid down in United States v. Hampton, 718 F.3d 978 (D.C. Cir. 2013), a decision rendered after the underlying trial, the Circuit panel (Rogers, Pillard and Wilkins, JJ) found error solely as to Williams. (Slip Op. at 32-46). The court rejected Williams’ claim that the Trial Judge had erred in failing to grant his motion for judgment of acquittal, however, and remanded the case, because a reasonable juror could have concluded that the evidence pointed to his guilt. (Id. at 46-50).

Williams, the panel explains, follows both Hampton and earlier Circuit precedent – as well as decisions in recent decisions in sister Circuit Courts of Appeals – expressing discomfiture with the Government’s use of case agents as so-called “summary” experts. (Slip Op. at 36-37) (citing, inter alia, Hampton, 718 F.3d at 983, United States v. Moore, 651 F.3d 30, 57 (D.C. Cir. 2011), and United States v. Miller, 738 F.3d 361, 373 (D.C. Cir. 2013)). First, Williams points out, “‘there is no way for the court to assess whether it [the agent’s opinion] is rationally based on the witness’s perceptions, and second because the opinion does not help the jury but only tells it in conclusory fashion what it should find.’” (Slip Op. at 36) (quoting Hampton, 718 F.3d at 981) (internal citation omitted). Second, merely having listened to all the wiretapped communications and investigated the case was an inadequate basis for admitting the testimony, the panel commented, “because its lack of specificity invited ‘the risk that he was testifying based upon information not before the jury, including hearsay’ and left the jury with ‘no way of verifying his inferences or of independently reaching its own interpretations’ as FRE 701 requires.” (Slip Op. at 36) (quoting Hampton, 718 F.3d at 982-83) (internal citation omitted). Third, “‘[j]udicial scrutiny of a law-enforcement witness’s purported basis for lay opinion is especially important because of the risk that the jury will defer to the officer’s superior knowledge of the case and past experiences with similar crimes.’” (Slip Op. at 36) (quoting Hampton, 718 F.3d at 981-82) (internal citation omitted)

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In April, May and June the Third Circuit vacated convictions in three cases. The first, United States v. Lopez, addresses prosecutorial misconduct (Doyle error); the second, United States v. Vasquez-Algarin, addresses law enforcement misconduct (Fourth Amendment/forced entry); the third, United States v. Dennis, addresses trial court error (failure to give an entrapment instruction) in the larger context of reverse-sting stash house operations. Each opinion touches on policy concerns raised by the legal issues; the majority and Judge Ambro’s concurrence in Dennis are particularly worth reading for anyone litigating stash house cases. The three cases were decided by three non-overlapping panels of judges.

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