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9th Circuit: Convictions and sentences reversed, documents ordered sealed, mandamus issued

United States v. Johnson, 2017 WL 4974579 (9th Cir. Nov. 2, 2017): Government failed to prove federal nexus in obstruction of justice case

In the summer of 2013, Christopher Johnson was working as a custodial deputy in the reception center of a county jail. When a pretrial detainee made unnecessary calls with the intercom system, Mr. Johnson and another deputy visited the detainee’s cell to “counsel” him. The encounter devolved into a “takedown” during which Mr. Johnson struck the inmate with his foot and knee multiple times. Mr. Johnson then wrote and submitted several reports that described the incident, but failed to mention his “kicks” and “knee strikes.” Mr. Johnson was later charged with obstruction of justice in violation of 18 U.S.C. § 1512(b)(3), which applies to misleading conduct with intent to keep information about a federal offense away from a law enforcement officer or judge “of the United States.” He moved for a judgment of acquittal, arguing that the government had failed to prove that there was a reasonable likelihood that he intended to hinder a federal officer or judge. The district court denied the motion, and Mr. Johnson was convicted.

On appeal, the Ninth Circuit held that the district court erred in denying Mr. Johnson’s motion for a judgment of acquittal, because the government’s evidence established only a “remote” or “simply hypothetical” possibility that Mr. Johnson’s reports could have reached a federal officer. The Ninth Circuit accordingly reversed Mr. Johnson’s conviction.

(Congratulations to Robert Rabe, Muna Busailah, and Michael P. Stone, of Stone Busailah LLP, Pasadena, California.)

United States v. Wallen, 874 F.3d 620 (9th Cir. Oct. 25, 2017): Subjective standard applies to claim of self-defense in Endangered Species Act Prosecution

Dan Wallen lives in “bear country.” In the spring of 2014, a trio of grizzly bear cubs were often seen in his neighborhood, frolicking in backyards, ransacking chicken coops, and “just being bears.” One day, Mr. Wallen found that two-thirds of his chickens had been killed, and that the perpetrators had left behind a tell-tale paw print. Later that day, while Wallen’s children played outside, the bears returned and headed for the chicken coop, frightening the children. Mr. Wallen tried to chase them away with his truck. A short time later the bears returned again, and Mr. Wallen chased them away with his truck once more. Later that evening, Mr. Wallen shot and killed the bears. His description of the circumstances in which he did so changed over time. Initially he claimed that he shot at one bear to frighten it. Later he acknowledged shooting all three bears as they passed through his property. Still later, he claimed that when he shot the bears his family was nearby, and two of the bears were charging at him.

The government charged Mr. Wallen with violating the Endangered Species Act, 16 U.S.C. § 1540. He was tried before a magistrate judge. At trial, he asserted that he shot the bears in self-defense, to protect himself and his family, and claimed that the bears had been charging at him when he shot them. The magistrate judge found Mr. Wallen guilty, on the ground that Mr. Wallen’s belief that he needed to shoot the bears in self-defense was objectively unreasonable.

On appeal, the Ninth Circuit held that the magistrate judge had erred in applying an objective reasonableness standard to Mr. Wallen’s good faith defense. Unlike other criminal statutes that allow for a defense of self-defense and require objective reasonableness, the Endangered Species Act refers to a “good faith belief,” suggesting a subjective standard. The Ninth Circuit noted that the subjective standard does not render the objective reasonableness of the defendant’s claim of self-defense entirely irrelevant, but provides that it may be considered only for its bearing on the plausibility of the defendant’s claimed subjective belief in the need to use force. The magistrate judge’s error was not harmless, because the objective reasonableness standard formed the core of the judge’s reasoning, and a reasonable factfinder could have found the self-defense claim plausible under the subjective standard. The Ninth Circuit accordingly vacated Mr. Wallen’s conviction and remanded the case for further proceedings.

(Congratulations to Assistant Federal Defender John Rhodes and Federal Defender Anthony R. Gallagher of Missoula, Montana.)

United States v. Preston, 873 F.3d 829 (9th Cir. Oct. 17, 2017): Cumulative effect of trial errors deprived defendant of a fair trial

Following a six-day jury trial, Christopher Preston was convicted on two counts of aggravated sexual abuse of a child in violation of 18 U.S.C. § 2241(c). On appeal, he argued that several trial errors served, either individually or cumulatively, to deprive him of a fair trial. Focusing on three groups of errors, the Ninth Circuit agreed.

The first group of errors involved improper witness testimony improperly bolstering the alleged victim’s testimony. A therapist who had treated the alleged victim testified that she believed he was telling the truth about being sexually abused. Despite being a lay (rather than an expert) witness, she also testified that allegations of sexual abuse made by her clients had “normally been true,” and that the alleged victim’s emotions were similar to those of a person who has been a victim of sexual abuse. The alleged victim’s brother testified that he found the alleged victim’s allegations of sexual abuse to be believable. And an FBI agent testified that he had told Mr. Preston that he did not believe his denials.

The second group of errors involved the admission of Mr. Preston’s ex-wife’s testimony that, five years after he had allegedly committed the acts underlying the prosecution, she had seen him masturbating while looking at a computer image of an 8-year-old boy. The district court had admitted this evidence over Mr. Preston’s pretrial motion to preclude it pursuant to Federal Rule of Evidence 404(b). This was error, because the district court failed to find that this “other act” was sufficiently similar to the crimes charged, and because the evidence tended to give rise to unfair prejudice in violation of Federal Rule of Evidence 403.

The third group of errors involved prosecutorial misconduct. The prosecutor stressed in closing that there was “no testimony” contradicting the alleged victim’s testimony, effectively commenting on Mr. Preston’s failure to testify (and thus violating the Fifth Amendment). The prosecutor repeatedly told the jurors that the alleged victim’s allegations were “the truth,” effectively vouching for him. And the prosecutor misstated the evidence, incorrectly telling the jurors that Mr. Preston’s position was that the alleged victim was a “despicable” and “evil” person who lied “about everything for no reason.”

Because the cumulative effect of these errors was “so clear,” the Ninth Circuit found it unnecessary to decide whether any of them would call for reversal individually. All but one of the errors went directly to the key – and only – disputed issue in the case, which was whether the alleged victim was telling the truth; and the other error (the Rule 404(b) “other act” evidence) unfairly portrayed Mr. Preston as the “type of person” who would molest a child. Because the cumulative effect of these errors rendered Mr. Preston’s trial “fundamentally unfair,” the Ninth Circuit reversed his conviction and remanded the case for a new trial.

(Congratulations to Assistant Federal Public Defender M. Edith Cunningham and Federal Public Defender Jon M. Sands, of Tucson, Arizona.)

United States v. Slade, 873 F.3d 712 (9th Cir. Oct. 10, 2017): Washington second-degree assault not categorically a “crime of violence” under section 2K2.1(a)(4)(A) of the sentencing guidelines

Raqwon Slade pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). At sentencing, the district court found that his prior Washington state conviction for second-degree assault qualified as a “crime of violence” pursuant to section 2K2.1(a)(4)(A) of the sentencing guidelines, generating a base offense level of 20. Referring to its recent decision in United States v. Robinson, 869 F.3d 933 (9th Cir. 2017), the Ninth Circuit on appeal held that the Washington offense did not categorically qualify as a “crime of violence.” The government argued that a prior Ninth Circuit precedent had treated the Washington offense as a crime of violence, but the Ninth Circuit held that this precedent had been abrogated by recent Supreme Court decisions. The Ninth Circuit accordingly vacated Mr. Slade’s sentence and remanded the case for resentencing.

(Congratulations to Assistant Federal Public Defender Vanessa Pai-Thompson, of Seattle, Washington.)

United States v. Jayavarman, 871 F.3d 1050 (9th Cir. 2017): Statutes governing travel with intent to engage in illicit sexual conduct do not cover attempting to aid and abet such travel

Jason Jayavarman was convicted of (among other offenses) attempting to aid and abet an undercover FBI agent’s travel to Cambodia with intent to engage in illicit sexual conduct in violation of 18 U.S.C. §§ 2(a) and 2423(b). On appeal, Mr. Jayavarman argued, and the government conceded, that these statutes do not criminalize attempting to aid and abet travel with intent to engage in illicit sexual conduct. The Ninth Circuit agreed, and vacated Mr. Jayavarman’s conviction and sentence on this count. In addition, because Mr. Jayavarman’s sentence on the vacated count might have affected his sentences on the other count of conviction, the Ninth Circuit vacated his sentence on the other count as well, and remanded the case for resentencing.

(Congratulations to A. Cristina Weidner-Tafs and Phillip Paul Weidner, of Weidner & Associates APC, Anchorage, Alaska.)

United States v. Martinez, 870 F.3d 1163 (9th Cir. 2017): Guidelines §2L1.2(b)(2)(B) enhancement inapplicable to defendant whose initial, pre-deportation sentence included only one year of incarceration

Virginio Hernandez Martinez pleaded guilty to illegal reentry in violation of 8 U.S.C. § 1326. The district court in sentencing him applied an 8-level enhancement pursuant to section 2L1.2(b)(2)(B) of the sentencing guidelines, which applies where the defendant was ordered deported after having been convicted of a felony offense for which the “sentence imposed” was two years or more. He appealed his sentence to the Ninth Circuit. The Ninth Circuit noted that Mr. Martinez’s initial sentence for his pre-deportation felony had included only one year of imprisonment, although two additional years were subsequently added when he was caught reentering the United States on previous occasions. After examining the history of the Sentencing Commission’s related modifications and commentary, the Ninth Circuit held that the phrase “sentence imposed,” as used in section 2L1.2(b)(2)(B), should be read to refer solely to the sentence imposed before the defendant’s first order of deportation. Because Mr. Hernandez’s pre-deportation sentence included only one year of incarceration, the Ninth Circuit vacated his sentence and remanded the case for resentencing.

(Congratulations to Deputy Federal Public Defender James H. Locklin and Federal Public Defender Hilary Potashner, of Los Angeles, California.)

United States v. Doe, 870 F.3d 991 (9th Cir. 2017): Threat of retaliation justified sealing district court filings referencing defendant’s cooperation

“John Doe” pleaded guilty to importing methamphetamine into the United States, and provided law enforcement with valuable information about nine members of an international drug cartel. In recognition of his cooperation, the government filed a motion to reduce his sentence pursuant to section 5K1.1 of the sentencing guidelines. Because Mr. Doe’s cooperation exposed him to possible retaliation, the government moved to seal its motion, but the reference to section 5K1.1 in the titles of the government’s filings appeared on the public docket. For this reason, Mr. Doe moved to strike the docket entries and replace them with “more generic descriptions.” The district court denied the motion, concluding that Mr. Doe had failed to overcome the First Amendment presumption of public access to court documents. Mr. Doe filed another motion, this time asking the district court to at least redact references to section 5K1.1 and substantial assistance. The district court denied the motion. Mr. Doe appealed to the Ninth Circuit.

The Ninth Circuit noted that the public has the right to access court documents pursuant to both the First Amendment and the common law, but that right is qualified, and may be overcome by a compelling governmental interest. The Ninth Circuit found that Mr. Doe had identified two compelling interests for sealing the documents revealing his cooperation. First, Mr. Doe presented evidence (and the government agreed) that members of the drug cartel might harm him or his family if they learned of his cooperation. Indeed, a recent report issued by the Committee on Court Administration and Case Management of the Judicial Conference of the United States confirmed that court dockets had frequently been used to identify cooperators, triggering retribution. Second, failure to seal the documents threatened to impede the government’s ongoing investigation. Redaction was not an adequate alternative means of protecting these interests – in fact, doing so would only serve to “flag” the pertinent filings and “signal Doe’s cooperation.” The Ninth Circuit accordingly reversed the district court’s orders and remanded the case “for sealing.”

(Congratulations to Kurt D. Hermansen of San Diego, California.)

United States v. Barragan, 871 F.3d 689 (9th Cir. 2017): RICO conviction not a “crime of violence” or “controlled substance offense” under Guidelines §4B1.1(a)

Francisco Gutierrez was convicted of conspiracy in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO). The district court sentenced him as a “career offender” pursuant to section 4B1.1(a) of the sentencing guidelines, which applies to defendants with priors who are convicted of a “crime of violence or a controlled substance offense.” On appeal he argued, and the government conceded, that his RICO offense did not qualify as a “crime of violence or a controlled substance offense.” The Ninth Circuit summarily agreed, vacated Mr. Gutierrez’s sentence, and remanded the case for resentencing.

(Congratulations to Sanjay Sobti, of the U.S. Law Center, Corona, California.)

United States v. D.M., 869 F.3d 1133 (9th Cir. 2017): Resentencing under amended sentencing guideline may incorporate “fast-track” departure awarded at initial sentencing

In 2012, D.M. pleaded guilty to possession of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). In 2014, the Sentencing Commission reduced the base offense level for certain drug convictions by two levels, and made the amendment retroactive. D.M. moved the district court to apply the amendment and reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). The district court denied the motion, reasoning that D.M.’s sentence could not be reduced because the court was not permitted to include D.M.’s “fast-track” departure – i.e., the downward departure he received at his initial sentencing in return for agreeing to plead guilty quickly – in the resentencing, and without including that departure, the guidelines amendment did not lead to a sentence lower than the one he had received initially.

On appeal, the government argued that the case was moot because D.M. had been released from custody. The Ninth Circuit disagreed, noting that D.M.’s supervised release term continued to run, and the district court could still “modify D.M.’s term of supervised release.” Turning to the merits, the Ninth Circuit held that the district court erred in concluding that D.M. was ineligible for a sentence reduction. The governing provision of the sentencing guidelines, section 1B1.10(b), bars district courts from resentencing a defendant to term of imprisonment below the “minimum of the amended guideline range, but specifically permits a lower sentence to be imposed where the “term of imprisonment imposed” at the defendant’s initial sentencing reflected a “substantial assistance” downward departure. The Ninth Circuit (adopting the reading advocated by both D.M. and the government) held that the phrase “term of imprisonment imposed” should be construed to cover other forms of departure as well, including “fast-track” departures like the one D.M. received. The Ninth Circuit acknowledged that section 1B1.10(b) was not a model of clarity on this point, but noted that if the guideline were ambiguous, its ambiguity would have to be resolved in the defendant’s favor pursuant to the Rule of Lenity.

(Congratulations to James Fife of Federal Defenders of San Diego, Inc.)

United States v. Ocampo-Estrada, 873 F.3d 661 (9th Cir. Aug. 29, 2017): Government failed to show that California drug prior qualified as a “felony drug offense”

Luis Ocampo-Estrada was convicted of conspiracy to distribute methamphetamine. At sentencing, the district court noted that Mr. Ocampo had previously been convicted of a violation of California Health & Safety Code section 11378, which prohibits the possession of certain controlled substances for sale. The district court found that this prior qualified as a “felony drug offense” under 21 U.S.C. § 841(b)(1)(A), triggering a twenty-year mandatory minimum sentence. The Ninth Circuit disagreed. It was undisputed that the California statute was overbroad – i.e., that it covered more than the federal generic definition of a “felony drug offense.” But the statute is “divisible”: It lists separate offenses, rather than merely separate means of committing a single offense. Accordingly, the government could use the “modified categorical approach” to attempt to prove that Mr. Ocampo was convicted of an offense falling within the federal generic definition. The government tried to prove this, but failed. The documents that the government proffered failed to show which controlled-substance element Mr. Ocampo pleaded guilty to in connection with his section 11378 conviction. The Ninth Circuit vacated Mr. Ocampo’s sentence and remanded the case for resentencing.

(Congratulations to Devin Burstein of Warren & Burstein, San Diego, California.)

United States v. Robinson, 869 F.3d 933 (9th Cir. Aug. 25, 2017): Washington second-degree assault not a “crime of violence” under section 2K2.1 of the sentencing guidelines

Robby Robinson was convicted on two counts of being a felon in possession of firearms in violation of 18 U.S.C. § 922(g)(1). At sentencing, the district court found that Mr. Robinson had previously pleaded guilty in Washington state court to a felony count of second-degree assault. The court found that this conviction constituted a “crime of violence” within the meaning of section 2K2.1 of the sentencing guidelines, elevating the offense level to 22. The Ninth Circuit held that the district court erred in treating the Washington offense as a “crime of violence.” The Washington offense is overbroad, because it can be committed without the use of violent physical force against another person. And the Washington statute is indivisible, because a jury need not find that the offense was committed in any of the various ways specified in the statute. It followed that the Washington statute defines a single crime that does not necessarily involve the use of violent physical force. The court accordingly vacated Mr. Robinson’s sentence and remanded the case for resentencing.

(Congratulations to Lynn C. Hartfield of Denver, Colorado.)

In re Zermeno-Gomez, 868 F.3d 1048 (9th Cir. Aug. 25, 2017): District courts must follow published circuit precedent regardless of whether mandate is stayed

A post appearing on this blog on June 13, 2017 covered the Ninth Circuit’s opinion in United States v. Sanchez-Gomez, 859 F.3d 649 (9th Cir. 2017) (en banc), in which the court held that district courts may not employ a policy of presumptive five-point shackling of all pretrial detainees. Soon after that opinion issued, the government obtained a stay of the mandate pending the filing of a petition for certiorari in the Supreme Court. Soon after that, magistrate and district judges in the District of Arizona began taking the position that because the mandate in Sanchez-Gomez was stayed, they were not obligated to follow the opinion’s holding. The Office of the Federal Public Defender for the District of Arizona disagreed, and filed a petition for a writ of mandamus in the Ninth Circuit seeking an order directing the district’s judges to comply with Sanchez-Gomez. The Ninth Circuit granted the writ, holding that the magistrate and district judges had clearly erred in failing to recognize that a published circuit decision is binding upon the lower court regardless of whether the mandate is stayed. As of this writing, the government’s petition for certiorari in Sanchez-Gomez is still pending.

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

United States v. Brito, 868 F.3d 875 (9th Cir. 2017): “Term of imprisonment” in statute and guideline governing retroactive sentencing guidelines amendments includes time spent in state custody

In 2012, a district court sentenced Gilbert Brito to 76 months of imprisonment for possession of heroin with intent to distribute. In 2014, the Sentencing Commission reduced by two levels the offense level applicable to his conviction. Mr. Brito filed a motion pursuant to 18 U.S.C. § 3582(c)(2) asking the district court to reduce his sentence to 66 months. But there was a hitch: The original 76-month sentence had factored in a four-month credit for time served in state custody. Could the reduced sentence also factor in this four-month credit? The district court found that section 1B1.10(b)(2)(A) of Guidelines prohibited this: It states that a court may not reduce a term of imprisonment below the “minimum of the amended guideline range,” and the requested 66-month term fell below the bottom of this range. Not so, held the Ninth Circuit: “If the district court at the original sentencing gave credit for time spent in state custody in determining the defendant’s sentence, the ‘term of imprisonment’ on the motion for sentence reduction can include the time spent in both federal and state custody.” The court found that such an interpretation is consistent with the intended meaning of the phrase “term of imprisonment” as used in Section 3583(c)(2) and Section 1B1.10(b)(2)(A). Judge McKeown dissented, opining that the majority was misreading the statute and guideline.

(Congratulations to Chief Deputy Federal Public Defender Stephen R. Sady and Research & Writing Attorney Elizabeth G. Daily, of Portland, Oregon.)

United States v. Castillo-Mendez, 868 F.3d 830 (9th Cir. 2017): Alien not guilty of attempted illegal reentry if he intended to be apprehended

To prove attempted illegal reentry into the United States in violation of 8 U.S.C. § 1326(a), the government must prove that the defendant specifically intended to reenter the Unites States “free from official restraint.” Jesus Castillo-Mendez’s defense at trial was that his intent in jumping a border fence was not reenter the United States “free from official restraint” – his intent, rather, was to be caught by the Border Patrol, which (he claimed) was a less scary prospect than remaining with the menacing smugglers who brought him to the border. After beginning its deliberations, the jury asked the district court to explain what “official restraint” meant. The court instructed the jury that “official restraint” meant continuous governmental surveillance, and that whether the alien knew he was under surveillance was irrelevant. This was error, because in an attempted illegal reentry case, the government must prove that the alien’s intent was to enter without being detected or apprehended. In light of the centrality of the issue and the jury’s obvious confusion, the Ninth Circuit reversed Mr. Castillo-Mendez’s conviction and remanded the case for a new trial.

(Congratulations to Kurt D. Hermansen of San Diego, California.)

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

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