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9th Circuit: Short Wins

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:

United States v. Lustig, — F.3d —, 2016 WL 4056065 (9th Cir. 2016) (search of cell phones; harmlessness in conditional plea case)

In Riley v. California, 134 S. Ct. 2473 (2014), the Supreme Court held that the Fourth Amendment requires law enforcement officers to obtain a warrant before they may search an arrestee’s cell phone. But when police arrested defendant, Riley was not yet so much as a gleam in the Supreme Court’s eye. The good-faith exception thus prevented the exclusionary rule from applying in defendant’s solicitation-of-prostitution case, with respect to the cell phones that police found in his pockets. But the search of cell phones seized from his car was another matter. Police searched those phones shortly after defendant’s arrest, but did not obtain a warrant to search them until 16 months later. On appeal the government conceded that the 16-month delay was unreasonable, and that the fruits of those searches should have been suppressed. But it argued that the error was harmless. The Ninth Circuit held that harmless error review did apply, but that its application was affected by the fact that defendant had entered a conditional plea, preserving his right to appeal the denial of his suppression motion. The pertinent inquiry in this context is whether it is clear beyond a reasonable doubt that the error did not contribute to the decision to plead guilty. Refusing to find the error harmless under this standard, the Ninth Circuit reversed the denial of the suppression motion with regard to the cell phones found in the defendant’s car, and remanded the case for further proceedings.

(Congratulations to Timothy A. Scott, Coleman, Balogh & Scott LLP, San Diego, CA)

 

United States v. Thomsen, — F.3d —, 2016 WL 4039711 (9th Cir. 2016) (fraud; restitution; Guidelines identify-theft offense characteristic)

Defendant was convicted of 32 counts of tax fraud. Two of those counts related to his fraudulent use of a passport card in his application for a mail account, purportedly in violation of 18 U.S.C. § 1546. The Ninth Circuit voided these convictions, holding that the statute does not apply to passport cards. Part of the restitution awarded against defendant was drawn from a separate case that had been dismissed. The Ninth Circuit threw out this portion of the restitution award, finding that the district court clearly erred in finding the scheme alleged in that case sufficiently related to the scheme in the case that led to defendant’s conviction. (This flaw also voided the district court’s “intended loss” finding under U.S.S.G. §2B1.1.) The district court also erred in applying an “identity theft” offense characteristic under U.S.S.G. §2B1.1(b)(11)(C), because this provision does not apply to personal tax returns. And the district court used the wrong edition of the Guidelines Manual to calculate the number of victims, leading to an ex post facto violation. The Ninth Circuit reversed defendant’s two invalid convictions, reversed his sentence, and remanded the case for resentencing.

(Congratulations to Deputy Federal Public Defender Gail Ivens, Los Angeles, CA)

 

United States v. Torres, — F.3d —, 2016 WL 3770517 (9th Cir. Jul. 14, 2016) (appeal waiver; Guidelines crime of violence enhancement)

Defendant pleaded guilty to unlawful possession of a firearm. In his plea agreement, he stipulated to the applicability of U.S.S.G. §2K2.1(a)(2), which provides for an enhancement where the defendant has two prior “crime of violence” convictions. The Guidelines language defining “crime of violence” in §4B1.2(a)(2) is the same language found unconstitutionally vague in Johnson v. United States, 135 S. Ct. 2551 (2015), as set forth in the Armed Career Criminal Act. The plea agreement also included an appeal waiver. But on appeal, the government agreed that Johnson applied to Section 4B1.2(a)(2). Accepting this concession (without squarely deciding the issue), the Ninth Circuit found that the resulting illegality of defendant’s sentence nullified the appeal waiver, and required that his sentence be vacated and the case remanded for resentencing.

(Congratulations to Assistant Federal Public Defender Rachel Korenblat, Las Vegas, NV)

 

United States v. Nosal, — F.3d —, 2016 WL 3608752 (9th Cir. 2016) (Mandatory Victim Restitution Act)

Defendant was convicted of violating the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, which imposes criminal penalties on persons who, with intent to defraud, access a protected computer without authorization. Among other things, his sentence included $828,000 in restitution to his employer, which was intended to cover its internal investigation costs and attorney’s fees, pursuant to the Mandatory Victim Restitution Act, 18 U.S.C. § 3663A. Although the district court awarded less than the amount of attorney’s fees requested, the Ninth Circuit found that the court should have reduced the fee award still further. The court vacated the attorney’s fee portion of the restitution award and remanded it with instructions that the district court reconsider the reasonableness of the amount of attorney’s fees requested.

(Congratulations to Dennis P. Riordan, Riordan & Horgan, San Francisco, CA)

 

United States v. Grovo, — F.3d —, 2016 WL 3443691 (9th Cir. 2016) (restitution in child porn cases)

In United States v. Galan (discussed in a prior post), the Ninth Circuit held that a district court awarding restitution against a defendant convicted of a child porn offense must “disaggregate” the losses caused by the victim’s original abuser from the losses caused by the individual child-porn defendant. Because the district court failed to do that, the Ninth Circuit vacated the restitution order and remanded the case for recalculation of restitution.

(Congratulations to Stephen R. Hormel, Hormel Law Office, LLC, Spokane, WA)

 

United States v. Cisneros, — F.3d —, 2016 WL 3435389 (9th Cir. Jun. 22, 2016) (Armed Career Criminal Act)

Is Oregon burglary a “violent felony” for purposes of the Armed Career Criminal Act, 18 U.S.C. § 924(e)? Nope. Unlike the “generic” offense, it extends to booths, vehicles, boats, and aircraft, and the statute is indivisible. Because the district court therefore erred in enhancing the defendant’s sentence under the Act, the Ninth Circuit vacated his sentence and remanded the case for resentencing.

(Congratulations to Assistant Federal Public Defender Brian C. Butler, Medford OR)

 

United States v. Beecroft, — F.3d —, 2016 WL 3240304 (9th Cir. 2016) (Excessive Fines Clause)

Defendant was convicted for participating in an extensive mortgage fraud conspiracy. The district court sentenced her to three years in prison plus millions of dollars in restitution. Among these millions of dollars was a $107 million forfeiture penalty in connection with a conspiracy count. The defendant challenged this portion of the sentence under the Excessive Fines Clause. The Ninth Circuit agreed. Although defendant’s crimes were serious, the $107 million was more than 100 times greater than the maximum allowable fine, and more than 5,000 times greater than the low end of the Guidelines range. In short, there was a “tremendous disconnect” between the forfeiture amount and the legally available fine. Because the forfeiture “vastly outpace[d] the otherwise available penalties for [defendant’s] criminal activity,” the Ninth Circuit found that it was plain error in violation of the Excessive Fines Clause. The court vacated the forfeiture award and remanded the case for reconsideration of the appropriate amount of the forfeiture.

(Congratulations to Angela H. Dows, Premier Legal Group, Las Vegas, NV)

 

United States v. Davis, — F.3d —, 2016 WL 3245043 (9th Cir. 2016) (en banc) (Marks rule, Fair Sentencing Act)

The en banc court needed to decide “how to interpret the Supreme Court’s fractured opinion in Freeman v. United States, which addressed whether a defendant sentenced pursuant to a Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement is eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2).” But before it could do that, it had to decide a broader question: Just what is the rubric for applying a “fractured” Supreme Court decision? The “mother case” is Marks v. United States, 430 U.S. 188 (1977), which held that  “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” But lower courts have struggled to determine whether the “narrowest grounds” relates to the reasoning of the various opinions, or instead to the ultimate results. Under the “reasoning” approach, a “narrowest ground” exists only when one opinion is a “logical subset” of other concurring opinions – i.e., a “common denominator of the Court’s reasoning.” Under the “results” approach, by contrast, the narrowest ground is the rule that would “produce results with which a majority of the Justices from the controlling case would agree.” Acknowledging that its precedent on the question had not been “a model of clarity,” the Ninth Circuit definitively opted for the “reasoning” approach. Applying this approach to Freeman, the court held that none of the plurality and concurring opinions was a logical subset of the others, and thus there was no “narrowest ground.” It followed that the only thing binding about the case was the result, and that the Ninth Circuit was free to follow the most “persuasive” among the plurality and concurring opinions. Finding the Freeman plurality opinion most persuasive, the court adopted that opinion’s view that even when a defendant enters into a Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement, the judge’s decision to accept the plea and impose the recommended sentence is likely to be based on the Guidelines – and when it is, the defendant should be eligible to seek § 3582(c)(2) relief. Because the district court therefore erred in denying defendant’s request for § 3582(c)(2) relief under the Fair Sentencing Act on the ground that defendant was ineligible for relief, the Ninth Circuit reversed the district court’s order and remanded the case.

(Congratulations to Nathaniel Garrett, San Francisco, CA)

 

United States v. Murphy, — F.3d —, 2016 WL 3201582 (9th Cir. 2016) (fictitious financial instruments)

In 2001, defendant began diverting income from his osteopathic medical practice to a trust. The adjusted gross income listed on his tax returns began to plummet, eventually reaching “less than $0,” while the trust reported income of between $700,000 and $1 million, virtually all of which was offset by claimed deductions. The IRS sought collection. Defendant attempted to pay with “bonded promissory notes” that purported to direct payment from the U.S. Treasury. (To those who have represented “sovereign citizen” clients, these facts should sound familiar.) He was convicted of (among other things) presenting fictitious financial instruments, in violation of 18 U.S.C. § 514. The Ninth Circuit vacated his Section 514 convictions and remanded for a new trial on these counts, holding that the district court plainly erred by failing to instruct the jury that the financial instruments had to appear to be issued under the authority of the United States, as required by the statute.

(Congratulations to Benjamin Lee Coleman, Coleman & Balogh LLP, San Diego, CA)

 

United States v. Loveland, — F.3d —, 2016 WL 3156308 (9th Cir. 2016) (conspiracy)

The Ninth Circuit is perplexed. The government had a “good case” against defendant for possession of methamphetamine with intent to distribute. But they didn’t charge him with that. They charged him with “conspiracy to do that.” Having made that charging decision, the government was obligated to prove the existence of an agreement beyond a reasonable doubt. It did not. It produced evidence of defendant buying large quantities of meth from others, presumably for the purpose of resale, but failed to prove that his resale would be pursuant to an agreement, tacit or otherwise, between him and his suppliers. As far as the record showed, after the suppliers sold defendant the meth, “he could have flushed it down the toilet for all they cared.” The Ninth Circuit vacated defendant’s conviction for insufficiency of the evidence.

(Congratulations to James K. Ball, Manweiler, Manweiler, Breen & Ball PLLC, Boise, ID)

 

United States v. Quintero-Leyva, 823 F.3d 519 (9th Cir. 2016) (guidelines “minor role” reduction)

Defendant pleaded guilty to importation of methamphetamine. At his sentencing, he argued for a “minor role” reduction under U.S.S.G. §3B1.2(b). The district court denied it. About a year later, the Sentencing Commission passed Amendment 794, which specified factors district courts should consider in applying Section 3B1.2. On appeal, defendant argued that these factors undermined the district court’s refusal to give the reduction. The Ninth Circuit held that the Amendment was intended as a “clarifying amendment,” such that it applied retroactively to defendant’s sentencing. Because it was unclear whether the district court considered all of the factors enumerated in the Amendment, the Ninth Circuit reversed defendant’s sentence and remanded the case for resentencing.

(Congratulations to Devin Burstein, Warren & Burstein, San Diego, CA)

 

United States v. LaCoste, 821 F.3d 1187 (9th Cir. 2016) (supervised release conditions)

Defendant pleaded guilty to conspiracy to commit securities fraud. He got 60 months in prison plus three years of supervised release. Among his supervised release conditions were one prohibiting him from using the internet without prior approval from his probation officer, and another precluding him from living in specified counties upon his release from prison. The Ninth Circuit vacated these conditions. The internet-use condition was overbroad, prohibiting any use of the internet without prior approval from the probation officer, notwithstanding the fact that the internet is “vital for a wide range of routine activities in today’s world.” The residency restriction was inadequately explained and geographically overbroad. The Ninth Circuit remanded the case, noting that more narrowly-drawn and fully-explained versions of these conditions might be acceptable.

(Congratulations to Robert Warren Rainwater, Rainwater Law Group, Portland, OR)

 

United States v. Lee, 821 F.3d 1124 (9th Cir. 2016) (career offender guideline)

Do the California crimes of battery against a custodial officer (Cal. Penal Code § 243.1) and attempting to deter an executive officer (id. § 69(a)) qualify as “crime[s] of violence” as defined by the residual clause of the career offender guideline, U.S.S.G. §4B1.2(a)(2)? Nope. The former can be accomplished by even “the least touching,” and the latter requires no more than “de minimis force.” Because the defendant had thus erroneously received the enhancement, the Ninth Circuit vacated his sentence and remanded the case for resentencing.

(Congratulations to Ethan A. Balogh, Coleman & Balogh LLP, San Francisco, CA)

 

United States v. Onuoha, 820 F.3d 1049 (9th Cir. 2016) (forcible medication)

Defendant was suspended from his job as a TSA screener at LAX for making inappropriate comments to a female passenger. He quit. Then he called a TSA checkpoint and said the airport should be evacuated. Then he called the LAX police and his supervisor and told them to evacuate the airport because he was going to “deliver a message” to America and the world. Et cetera. Eventually he turned himself in and told police that he only intended to send a “message,” not to threaten anyone. The district court granted the government’s motion for a competency evaluation. The evaluation found that defendant was delusional and incompetent to stand trial. The court committed him to custody to determine whether his competency could be restored. Doctors diagnosed him with schizophrenia and prescribed specified doses of the anti-psychotic Haldol. The government moved for an order for involuntary medication. The court granted the motion and defendant took an interlocutory appeal. The Ninth Circuit reversed. The governmental interest was strong, in light of defendant’s conduct. But there was a risk of serious side effects, particularly at the doses specified, and the prescribed course did not appear to be consistent with the community standard of care. Because the district court clearly erred in finding that the recommended course of medication was in defendant’s best medical interest, the Ninth Circuit remanded for further analysis.

(Congratulations to Deputy Federal Public Defender Brianna Fuller Mircheff, Los Angeles, CA)

 

United States v. Parnell, 818 F.3d 974 (9th Cir. 2016) (Armed Career Criminal Act)

Does armed robbery have as an element the “use, attempted use, or threatened use of physical force against the person of another”? Not in Massachusetts. Any force, however slight, may qualify. Non-violent purse-snatching can qualify. Because the district court therefore erred in enhancing defendant’s felon-in-possession sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e), on the premise that his Massachusetts armed robbery prior qualified as a “violent felony,” the Ninth Circuit vacated his sentence and remanded the case for resentencing.

(Congratulations to Robert K. Schwartz, Federal Defender Services of Idaho, Boise ID)

 

United States v. Argueta-Rosales, 819 F.3d 1149 (9th Cir. 2016) (attempted illegal reentry)

Defendant was charged with attempted illegal reentry into the United States in violation of 8 U.S.C. § 1326. At his bench trial, he presented evidence that he crossed into the country in a “delusional state,” believing that he was being chased by Mexican gangs, and with the specific intent only to place himself in the protective custody of United States officials. The district court found the evidence plausible but essentially irrelevant, reasoning that the statute only requires the government to prove that the defendant knew he was crossing into the country and that he was not privileged to do so. The Ninth Circuit disagreed, noting that it had held that a previously deported alien who enters the country with the intent only to be imprisoned, and not to “enter the country free from official restraint,” is not guilty of attempted illegal reentry. The Ninth Circuit vacated the conviction and remanded the case for a new trial.

(Congratulations to Doug Keller, Federal Defenders of San Diego, Inc., San Diego, CA)

 

United States v. Hernandez-Lara, 817 F.3d 651 (9th Cir. 2016) (crime of violence sentencing enhancement)

Defendant was convicted of illegal reentry under 8 U.S.C. § 1326. The government appealed his sentence, arguing that his California burglary conviction should have triggered an enhancement under U.S.S.G. §2L1.2(b)(1)(C), which incorporates the “crime of violence” definition from 18 U.S.C. § 16. But the Ninth Circuit had previously held that Section 16(b) (the subsection that the government argued was applicable) is void for vagueness, pursuant to the Supreme Court’s holding and reasoning in Johnson v. United States, 135 S. Ct. 2551 (2015). It followed that the “crime of violence” definition in Section 2L1.2(b)(1)(C) was likewise void for vagueness. The Ninth Circuit affirmed the unenhanced sentence.

(Congratulations to Alfredo M. Morales, Law Offices of Morales & Leaños, San Jose, CA)

 

United States v. Lundin, 817 F.3d 1151 (9th Cir. 2016) (search of home)

Every so often, a circuit court issues an opinion that starts with a sentence like this: “Around 4:00 a.m. on April 23, 2013, three northern California law enforcement officers approached [defendant’s] home without either an arrest warrant or a search warrant.” When this happens, think: Good Fourth Amendment Holding Imminent. The officers were following up on a woman’s claim that the defendant had kidnapped her several hours earlier. After knocking, they heard “crashing noises” from the backyard. They ran to the back, arrested defendant, put him in a patrol car, then searched his home and found guns (which, as a felon, he could not lawfully possess). The district court granted defendant’s suppression motion, and the government took an interlocutory appeal under 18 U.S.C. § 3731. The Ninth Circuit affirmed the suppression order. The fact that the agents heard “crashing noises” after knocking on defendant’s door did not create exigency, because they were already acting unreasonably by encroaching upon the curtilage of his home and knocking without a warrant at 4:00 a.m. with the intent to arrest him. The “protective sweep” doctrine did not apply, because defendant was already safely in the patrol car when they searched his home. And the “inevitable discovery” doctrine does not apply “when officers have probable cause to apply for a warrant but simply fail to do so.” The Ninth Circuit remanded the case for further proceedings.

(Congratulations to Geoffrey A. Hansen, Chief Assistant Federal Public Defender, San Francisco, CA)

 

United States v. Nickle, 816 F.3d 1230 (9th Cir. 2016) (guilty plea colloquy; confrontation)

Defendant agreed to plead guilty to one drug charge involving 50 grams of meth. He told the judge that some of the things in the government’s offer of proof were untrue, but he also admitted that he conspired with others to buy 50 grams or more of meth, in Montana. The judge pressed him for more details. The defendant added a reference to “other states.” Unsatisfied, the judge refused to accept his guilty plea. At trial, the government called three cooperating witnesses who claimed to have been part of the Montana-and-beyond meth conspiracy. Their plea agreements stated that the government might move to reward their cooperation with a sentence reduction under Federal Rule of Criminal Procedure 35. Defendant asked for leave to cross-examine these witnesses about their plea terms, but the district court refused to allow it, noting that no Rule 35 motions had been filed. Defendant was convicted and got 30 years. The Ninth Circuit first held that the district court erred in rejecting defendant’s guilty plea. The court had before it the government’s offer of proof and defendant’s admission – and that, notwithstanding defendant’s failure to provide more details, was sufficient under Federal Rule of Criminal Procedure 11(b). The district court erred again in refusing to let defendant cross-examine the government’s witnesses about their guilty pleas. The plea terms were relevant to the witnesses’ credibility, and the fact that the government was keeping the Rule 35 motions in its pocket while they testified only made these terms more relevant. The Ninth Circuit vacated defendant’s convictions and remanded the case for trial before a different judge.

(Congratulations to Palmer A. Hoovestal, of Hoovestal Law Firm, PLLC, Helena MT)

 

United States v. Reza-Ramos, 816 F.3d 1110 (9th Cir. 2016) (Assimilative Crimes Act)

Defendant, a non-Indian, was convicted of first degree premeditated murder on an Indian reservation in southern Arizona. He was also convicted, in connection with the same homicide, of felony murder, on the theory that the homicide occurred in connection with a burglary. The Ninth Circuit affirmed the first-degree murder conviction, but went on to address the felony murder conviction, just in case the first-degree murder conviction were to be tossed out in a future proceeding. The court vacated the felony murder conviction, holding that the district court erred in incorporating Arizona’s third-degree burglary statute as a predicate felony under the Assimilative Crimes Act, 18 U.S.C. § 13(a), because the federal murder statute, 18 U.S.C. § 1111, leaves no “gap” for a state-law crime to fill.

(Congratulations to Assistant Federal Public Defender M. Edith Cunningham of Tucson, AZ)

 

United States v. Werle, 815 F.3d 614 (9th Cir. 2016) (Armed Career Criminal Act)

The Armed Career Criminal Act, 18 U.S.C. § 924(e), provides that a defendant with three prior “violent felony” convictions faces a 15-year mandatory minimum sentence if convicted of violating 18 U.S.C. § 922(g), possession of a firearm by a felon. Defendant argued that his prior conviction for the Washington crime of felony riot should not be counted as a “violent felony” because it does not necessarily require the use of violent physical force. The Ninth Circuit agreed, found that the statute is not “divisible” such that the particular application of it could be upheld, and vacated the enhancement.

(Congratulations to Matthew Campbell of the Federal Defenders of Eastern Washington & Idaho, Spokane, WA)

 

United States v. Lara, 815 F.3d 605 (9th Cir. 2016) (search of cell phone)

Ever have guests arrive unannounced? Awkward. But after being convicted on state drug charges, defendant agreed to a probation term requiring him to submit his person and property to search at any time, by any law enforcement or probation officer, with or without a warrant, probable cause, or reasonable suspicion. One day probation officers arrived at his home, unannounced, to conduct a search. They spotted a cell phone in plain view, searched it, and found evidence of weapon possession. Facing a federal felon-in-possession charge, defendant moved to suppress, arguing that the search was unlawful. Nonsense, argued the government; He waived his Fourth Amendment rights, plus it was reasonable, plus we acted in good faith. The Ninth Circuit disagreed. Defendant’s agreement to the search term is only one factor bearing on reasonableness; it is not dispositive, and the search term did not clearly extend to a cell phone. The search was unreasonable, particularly when the Supreme Court’s discussion of the intrusiveness of a cell phone search in Riley v. California, 134 S. Ct. 2473 (2014), is considered. And the good-faith exception to the exclusionary rule did not apply, because the governing precedent on which the government might have relied at the time was at best unclear.

(Congratulations to Deputy Federal Public Defender Alexandra Wallace Yates of Los Angeles, CA)

 

United States v. Lemus, — F.3d —, 2016 WL 3524925 (9th Cir. 2016) (sufficiency of evidence of drug quantity)

(In a bar) Confidential informant to defendant: Know anyone who can sell me one-ounce quantities of meth? Defendant: I have a pound for sale. (Later, on the phone) Informant: I just want two ounces. Defendant: I’m going to tell the guy…the bags have to be torn up. (Later, at arranged time and place) Informant: Got my two ounces? Defendant: We only sell it by the pound. Unsavory business practices, perhaps, but the FBI was more interested in pursuing a charge of possession with intent to distribute. After the aborted transaction, agents followed defendant to his house, but did not conduct any search or observe any actual drugs. After his arrest, defendant said he was only joking about having meth. Unamused, the jury convicted him of possession with intent to distribute. The evidence of defendant’s statements about the drugs was sufficient to support his conviction, says the Ninth Circuit. But it was not sufficient to support the finding that he possessed at least 50 grams of meth. No drugs were ever seized or tested for purity. The government presented evidence of the purity levels involved in 30 controlled purchases made in the area over an eight-year period, but it would be “a bridge too far” to permit the jury to extrapolate from these cases, which had nothing to do with this defendant, to his case. The court threw out the drug quantity finding and remanded for the government to seek resentencing based on the lowest quantity category in the Sentencing Guidelines.

(Congratulations to Deputy Federal Public Defender Michael Tanaka of Los Angeles, CA)

 

United States v. Murguia-Rodriguez, 815 F.3d 566 (9th Cir. 2016) (Court Interpreters’ Act of 1978)

The defendant was a native Spanish speaker who understood spoken English “about 60 percent.” After his conviction on drug and weapon charges, the district court convened a sentencing hearing at which a court interpreter was initially present. The defendant told the judge that he preferred to conduct the hearing in English. The judge asked him whether he wanted the interpreter to stay. He replied: “She can stay.” The judge pressed him to let the interpreter go, noting that she “has other duties,” and asked whether he was comfortable proceeding in English. He responded: “I am comfortable proceeding in English.” The judge let the interpreter leave. The court of appeals held that this violated the Court Interpreter’s Act of 1978, which provides that a waiver of the right to an interpreter must be made expressly and on the record, after opportunity to consult with counsel, and after the judge has explained the nature and effect of the waiver. On this record there was no valid waiver, and the judge erred by urging the defendant to let the interpreter leave. (The court did not consider harmlessness, because the government had not argued it.) The court vacated the defendant’s sentence and remanded the case for a new sentencing hearing.

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

 

United States v. Eglash, 813 F.3d 882 (9th Cir. 2016) (mail fraud)

Funny how perceptions differ. Defendant’s self-perception: Near invalid, unable to stand or sit for any length of time or walk more than 200 yards; “almost home bound.” The perception of the undercover Social Security Administration agents who visited his coffee shop, after the agency had granted his application for disability: Healthy, active, athletic, “personable,” “gregarious,” and “very pleasant.” Excellent as a Zagat review; less so as an assessment of a disability claim. Defendant was convicted of several counts of mail fraud in violation of 18 U.S.C. § 1341. One of those counts, however, was flawed. A mail fraud count requires (1) a scheme to defraud and (2) a use of the mail to execute the scheme. A mailing from the government to the fraudster may qualify, if it is part of the scheme. But one of these counts should not have, because it was a mere summary of defendant’s disability application that did not advance the scheme or call for any action by defendant. The court reversed defendant’s conviction on that count.

(Congratulations to Theresa DeMonte of Seattle firm Calfo Harrigan Leyh & Eakes)

 

United States v. Johnson, 812 F.3d 757 (9th Cir. 2016) (U.S.S.G. §3C1.1 perjury enhancement)

To apply the perjury enhancement of U.S.S.G. § 3C1.1, the district court must expressly find the defendant gave (1) false testimony, (2) on a material matter, (3) with willful intent. Because the district court here applied the enhancement without expressly making these findings, the court remanded the case for the district court to do so.

(Congratulations to Jerald Brainin of Los Angeles, CA)

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