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In 1999, Anthony Ross was convicted in 1999 of sexual assault, a misdemeanor offense.  In 2009 he moved from D.C.  to Ohio. In 2010   he   was   indicted   for   failing   to   register   with   local   authorities pursuant  to  the  Sex  Offender  Registration  and  Notification Act (“SORNA”), which criminalizes the offense of  “travel[ing]  in interstate  or  foreign  commerce,”  and  “knowingly  fail[ing]”  to  update  [the]  registration  when  required  by  the  act  to  do  so. 18 U.S.C. § 2250(a).

Ross unsuccessfully moved to dismiss the indictment and, after entry of a conditional guilty plea, appealed. He advanced two grounds, the first based on the fact that his conviction preceded SORNA’s enactment. Ross contended that SORNA did not apply  to  those whose alleged conduct preceded the new law’s enactment because  the  Attorney  General had bypassed the “notice and comment” requirements of the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq., in defining what pre-enactment conduct ran afoul of SORNA’s registration requirements.

Ross’s second claim, which the Court of Appeals did not reach, was that SORNA’s vesting in the Attorney General the power to define (“specify”) whether a pre-SORNA conviction fell under the new law violated the constitutional  rule  against  undue delegation  of  legislative authority. (Slip Op. at 2-3). The Court of Appeals took pains to note that the latter, non-delegation claim, has sparked much recent litigation, typically adverse to the defense – albeit with a dissent by a certain judge in United States  v. Nichols, 784 F.3d  666,  667-77  (10th  Cir.  2015)  (Gorsuch, J., dissenting from denial of rehearing en banc). The panel majority (Williams and Pillard, JJ) found it unnecessary to tackle that thorny issue because resolving the first ground of Ross’s appeal was sufficient to prove error and cause the indictment to be dismissed.

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United States v. Mateo-Medina, — F.3d —, 2017 WL 76944, 2017 U.S. App. LEXIS 342, No. 15-2862 (3d Cir. Jan. 9, 2017) (plain error for district court to rely upon, at sentencing, arrests that did not result in conviction; racial disparities in arrest rates)

Maximo Mateo-Medina appealed his sentence of imprisonment for twelve months and one day for illegal reentry in violation of 8 U.S.C. §§ 1326(a) & (b)(1). The Third Circuit held that the district court erred in considering, at sentencing, arrests that had not resulted in convictions. The error was plain under controlling Third Circuit precedent: United States v. Berry, 553 F.3d 273, 281-84 (3d Cir. 2009). Notably, the opinion relies upon implicit racial bias and racial disparities in arrest rates.

Mr. Mateo-Medina pled guilty to the reentry offense. The PSR calculated his criminal history as category II based on a 2000 conviction for driving under the influence and a 2012 conviction for fraudulently applying for a passport. The PSR also listed six other arrests that had not resulted in convictions; the PSR did not describe underlying conduct.

The Guidelines range was 8-14 months’ imprisonment. “At the sentencing hearing, both the prosecutor and the defense argued for a sentence of time served, which would have been the equivalent of roughly six months, or the lower end of the Guidelines range.” The district court disagreed, and imposed a significantly longer sentence. In explaining the sentence, the district court commented on Mr. Mateo-Medina’s arrest record:

I also cannot overlook the defendant’s rather extensive . . . interaction with the criminal justice system. But there were as I counted, I believe seven [sic] arrests, two convictions in three states since 1988. So, the defendant . . . has engaged in conduct which to the Court’s view belied and made ring hollow a little bit his desire to merely come to America to seek a better life.

Continue reading →

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United States v. Yepiz et al., — F.3d —, 2016 WL 7367827 (9th Cir. Dec. 20, 2016): District court’s inscrutable rejection of defendant’s pro se letter requesting substitute counsel breached Sixth Amendment; government breached Brady v. Maryland by failing to turn over evidence impeaching key witness

Q. Is there any reason for a district judge to worry about handing a signature stamp to a staffer and authorizing her to use it to deal with improperly-filed pro se letters from represented criminal defendants?

A. Yes. Bad things can happen if such a letter is mishandled.

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United States v. Williams, — F.3d —, 2016 WL 7046754 (9th Cir. Dec. 5, 2016): Eliciting of arrestee’s gang affiliation in uncounseled interrogation at county jail violated Miranda v. Arizona

(2:30 a.m., county jail, outside of holding cell) Deputy sheriff: So sorry to disturb you at this late hour, Mr. Gilton, but we at the county jail are committed to ensuring that your stay here is a pleasant one, free of midnight shankings and so forth. Are you by any chance a member of the Fillmore/Central Divisadero Playas gang? Mr. Gilton: “Yeah, I hang out there, put me where I’m from.”

Perhaps Mr. Gilton only intended by his answer to ensure that his stay at the county jail was indeed a pleasant one. But as it turned out, his admission to gang membership was used to support a RICO charge, in which his gang was identified as the “enterprise.” The district court agreed with Mr. Gilton’s argument that the elicitation of this incriminating statement without Miranda warnings violated his right to be free of compelled self-incrimination, and granted his motion to suppress the statement. The government appealed the suppression order under 18 U.S.C. 3731. The Ninth Circuit affirmed. Gang membership may be relevant to jail security issues, but it is also plainly incriminating in respect to RICO charges, other federal criminal charges, Sentencing Guidelines enhancements, state murder charges, et cetera. Under the objective totality-of-the-circumstances test applied by the Ninth Circuit, a reasonable officer would have known that his question was likely to elicit a response that would be incriminating. Because the test is an objective one, it did not matter that at the time of the interrogation Mr. Gilton had been charged with murder but not with any gang-related charge. And the Miranda exceptions that the government invoked were inapplicable. The “booking questions” exception – which normally covers such (generally) innocuous matters as name, address, height, weight, and eye color – did not apply to a question so likely to elicit incriminating information. And under the circumstances – the deputy “retrieved Gilton from a locked holding cell around 2:30 a.m.—hours after Gilton arrived at the jail” – there was no basis for invoking the “public safety” exception, which applies to “volatile situation[s]” involving possible threats. The Ninth Circuit thus affirmed the district court’s suppression order. (One judge dissented, arguing that both of the exceptions were applicable.)

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United States v. Lin, — F.3d —, 2016 WL 6678368 (9th Cir. Nov. 14, 2016): District court erred in looking to underlying conduct, rather than specific statute of sex-trafficking conspiracy conviction, in setting Guidelines base offense level

Okay, so here’s the awkward part: Section 2G1.1(a)(1) of the United States Sentencing Guidelines specifies that the base offense level for a sex-trafficking conviction is 34 if the “offense of conviction” is 18 U.S.C. 1591(b)(1). What’s awkward about that, you ask? Just this: Section 1591(b)(1) does not identify an “offense of conviction.” Rather than defining an offense, it’s one of those subsection-(b) provisions that sets a minimum sentence for people who commit “an offense under subsection (a)” in a particular way. (Specifically, a 15-year minimum for people who commit sex trafficking by certain means, or with people under 14 years old.) How may this circle be squared? The district court’s solution was to look to the underlying conduct, and determine whether it fit the specifications in Section 1591(b)(1). In this case that meant that Mr. Lin, who was actually convicted under 18 U.S.C. 1594(c) – conspiracy to commit sex trafficking, which has no mandatory minimum – was subject to Section 2G1.1(a)(1), because his underlying conduct fit the specifications of Section 1591(b)(1). This approach served to more than double Mr. Lin’s base offense level, from the default level of 14 up to 34. But the Ninth Circuit rejected this approach, holding that a sentencing court should in this context look no further than the offense of conviction. The Ninth Circuit reasoned that, had the Sentencing Commission intended to direct sentencing courts to look to the underlying offense conduct, it would have told them to do that, rather than telling them to look to the “offense of conviction.” Awkwardness aside, the Ninth Circuit reasoned, the better interpretation of Section 2G1.1(a)(1) is that it “only applies to defendants who are subject to a fifteen-year mandatory minimum sentence under 18 U.S.C. 1591(b)(1).” Because Mr. Lin was convicted under Section 1594(c), which expressly states that it has no minimum sentence, it was harmful error to sentence him under Section 2G1.1(a)(1). The court vacated Mr. Lin’s sentence and remanded the case for resentencing.

This holiday miracle brought to you by our faithful friend, the categorical approach.

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United States v. Soto-Zuniga, — F.3d — (9th Cir. Sep. 16, 2016): Drug-bust defendant entitled to discovery relating to constitutionality of checkpoint seizure, and to government’s investigation of drug-smuggling operation

A lot has happened since 1976. Bell-bottoms have gone out of fashion, and come back again, sort of. The original members of Menudo have begun contemplating collecting retirement benefits. People without aluminum foil under their hats have begun talking about taking pictures with their telephones, and about the government watching us more or less all the time. And maybe, just maybe, the San Clemente checkpoint has become unconstitutional. At least, held the Ninth Circuit, Hector Soto-Zuniga should have been permitted to conduct discovery to find out.

The Border Patrol agents who stopped Mr. Soto-Zuniga at the San Clemente checkpoint thought he looked nervous. You know the rest: Referred to secondary, more looking nervous (including a “bounding” carotid artery), smell of marijuana, car search, drugs (in this case, methampetamine) found behind the driver’s seat. The government charged possession with intent to distribute. Mr. Soto-Zuniga filed a motion challenging the constitutionality of the checkpoint, accompanied by a motion seeking discovery of “statistics regarding the number and types of arrests and vehicle searches” conducted at the checkpoint. His point was this: Generally, a search or seizure is unreasonable and violates the Fourth Amendment unless it rests on individualized suspicion of wrongdoing. The Supreme Court has carved out an exception to this rule for “checkpoint” searches that serve “special needs, beyond the normal need for law enforcement.” In 1976 the Supreme Court held, in United States v. Martinez-Fuerte, 428 U.S. 543 (1976), that the San Clemente checkpoint was a constitutional suspicionless seizure because it served the “special” purpose of immigration control. But Mr. Soto-Zuniga wanted to show that the checkpoint has morphed into a “general law enforcement” tool, the primary purpose of which is to detect “ordinary criminal wrongdoing” – which would render it unconstitutional. The district court denied the motion, satisfying itself with an evidentiary hearing at which a Border Patrol agent assured the court that “upwards of 90 percent of arrests” at the checkpoint were “immigration related.” The Ninth Circuit found this insufficient, noting that the district court “made its decision as if in part blindfolded, considering only one version of the evidence.” Pursuant to Federal Rule of Criminal Procedure 16(a)(1)(E), Mr. Soto-Zuniga was entitled to data within the government’s possession “material to preparing the defense,” and in light of his particular Fourth Amendment defense, the discovery that he sought fit the bill.

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United States v. Carey, — F.3d — (9th Cir. Sep. 7,2016): 9th Circuit applies “plain view” principles to recognize “plain hearing” doctrine with respect to wiretaps

“Welcome to the AT&T Teleconspiracy Center. You have entered the code for the Escamilla conspiracy. At the tone, please clearly state your name, aliases, and role in the conspiracy. Then press pound.”

Nope, it doesn’t work like that. Under the Wiretap Act, 18 U.S.C. 2510-22, the government gets an order permitting it to tap calls linked to a specified conspiracy. They listen. If all goes according to plan, they hear and record the participants in that conspiracy discussing the nefarious deeds identified in the order. But what if they wind up hearing an entirely different cast of characters discussing an entirely different set of nefarious deeds? Finders keepers? Not exactly, says the Ninth Circuit.

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United States v. Dahl, ___ F.3d ___, 2016 WL 4394538, 2016 U.S. App. LEXIS 15171 (3d Cir. No. 15-2271, Aug. 18, 2016).

The district court sentenced William Dahl as a career sex offender under U.S.S.G. § 4B1.5, having decided that Dahl’s two prior Delaware convictions for unlawful sexual contact with minors qualified as “sex offense convictions” under 18 U.S.C. § 2426(b)(1)(B)).

Section 4B1.5 applies when a defendant has a prior “sex offense conviction,” which includes “any offense [covered by 18 U.S.C. § 2426(b)(1)] … perpetrated against a minor.” Section 2426(b)(1)(B), in turn, encompasses any “conviction” for a state sex offense “consisting of conduct that would have been an offense” under listed federal statutes.

As in any good defense-oriented discussion of a sex offense involving a minor, your blogger will gloss over the facts. The legal issue was whether the district court should have done the same. Specifically, the issue was whether the “categorical approach” applies in determining whether Dahl’s state convictions qualify as “sex offense[s]” under § 2426(b)(1). The “categorical approach,” as many readers of this blog will know, requires courts to look only to the elements of the predicate offense, rather than to the facts underlying the conviction, to determine whether the offense supports a recidivism enhancement. E.g., Descamps v. United States, 133 S. Ct. 2276, 2283 (2013). Thus the enhancement does not apply if it is possible to commit the predicate offense with conduct that would not merit the enhancement, even if the defendant’s own conduct would. Continue reading →

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A rational actor should not be overeager to join “Brothers of the  Struggle”  or  “Gangster  Disciples” (“BOS”), primarily comprised of a group of servicemen with too much idle time on their hands who were stationed at Ramstein Air Force Base in Germany. BOS is said to be related to  the  Gangster  Disciples, an  American  gang  with  roots  in  Chicago  and  corresponding individual “sets,” or local groups, around the world. (The BOS group was said to engage in fistfights but supposedly didn’t engage in other criminal activities.) “Initiation” in BOS meant that a new  member would be beaten up in a “jump-in,” during which  approximately six  BOS members would  hit the initiate for about six  minutes, striking blows between  the  neck  and  the  waist. The initiate could not defend himself in any way. During jump-ins initiates were asked repeatedly if they wanted to proceed. If the initiate declined, the initiation ended; otherwise if the initiate acceded, it continued. After a jump-in, the new member would be  hugged,  kissed  on  the  cheek, shown the BOS handshake,  and  taken out  to  celebrate. In the past, about fifteen to eighteen jump-ins had occurred and no one had been hospitalized or injured.

Rico Williams changed the rules of the “game” during Army Sergeant Juwan Johnson’s hazing. Williams was an ex-serviceman who was living at Ramstein as a dependent of his wife, who was also an Airman. Williams struck Johnson several times in the face during a jump-in that nine, not the usual six, BOS members joined in. As events transpired, the hazing continued, even though Johnson kept saying he was all right, and went on after Johnson had fallen to the ground and was kicked by members. Although Johnson never lost consciousness, he died within hours of the beating. (The sad details are at pages 3-4 of Circuit Judge Griffith’s majority opinion.)

Williams was charged under the  Military  Extraterritorial Jurisdiction  Act of  2000 (“MEJA”),  which  provides  federal jurisdiction  over  crimes committed  by a civilian  accompanying  the  Armed Forces  outside  the United  States (18 U.S.C. § 3261 et seq.), with second degree murder on an American installation. In addition he was accused of witness tampering (18 U.S.C. § 1512(b)(3)).  (Slip Op. at 5-6). An autopsy revealed “blunt force injuries”  to  Johnson’s  brain  and heart, which the Government’s medical expert opined had caused Johnson’ death. The defense medical expert, in turn, asserted that the cause of death was sickle-cell  trait,  a typically  asymptomatic  genetic condition,  and  that  “superficial  blunt  impact  injuries” were merely a “contributing” cause of death. (Slip Op. at 5). Williams was convicted of the murder count and received a 22-year sentence and a concurrent ten-year sentence on one of the tampering counts. (Id. at 6-7).

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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.