Published on:

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.)

Published on:

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.

Published on:

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.

Published on:

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.

Published on:

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 →

Published on:

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).

Published on:

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.

Published on:

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)).

Published on:

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.)

Published on:

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.)