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United States v. Wells, — F.3d —, 2017 WL 6459199 (9th Cir. Dec. 19, 2017): District court breached Federal of Rule of Evidence 404(a)(1) and (b) by admitting improper expert “profile” testimony and prior act evidence

If Federal Rule of Evidence 404 were the Brady Bunch, Rule 404(b) would be Marcia. Perpetually cited in motions in limine to preclude priors, flaunting its unnecessarily catchy “mimic” rule, tracing its provenance to hoary common law precedents — its sisters could be forgiven for feeling jealous sometimes. But in this case, murder defendant James Michael Wells was fortunate to see lesser-known sibling Rule 404(a)(1) get some serious screen time.

Mr. Wells came under suspicion after two of his co-workers at a U.S. Coast Guard antenna maintenance facility on Kodiak Island, Alaska were found shot to death. The government’s theory was that Mr. Wells planned and executed the murders because of workplace humiliations, compounded by his narcissism. To support its theory, the government presented the expert testimony of a forensic psychologist who painstakingly outlined the profile of a person “who would perpetrate a workplace targeted homicide.” Such a person, the expert explained, would most likely be a pathologically narcissistic male, with a grandiose view of himself and an unreasonable sense of entitlement, who would decide to kill out of humiliations in love or work. Having elicited this bespoke profile of the killer, the government urged the jurors to find that it “fit Mr. Wells to a T.” They did, convicting him of first degree murder. The Ninth Circuit held that this “profile” evidence violated Rule 404(a)(1), which provides that “[e]vidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.” Or, as Chief Justice Roberts recently put it, “[o]ur law punishes people for what they do, not who they are.” Buck v. Davis, 137 S. Ct. 759, 778 (2017). Because such evidence may not be used in the government’s case-in-chief as substantive evidence of guilt — which is how it was clearly, and prejudicially, used against Mr. Wells — its admission was prejudicial error.

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United States v. Jones, — F.3d —, 2017 WL 6395827 (9th Cir. Dec. 15, 2017): Armed Robbery in violation of Arizona Revised Statutes 13-1904 not a “violent felony” under the Armed Career Criminal Act

In 2006, Rick Allen Jones pleaded guilty to one count of being a felon in possession of a firearm, and an armed career criminal, in violation of 18 U.S.C. 922(g)(1) and the Armed Career Criminal Act, 18 U.S.C. 924(e) (ACCA). ACCA imposes a mandatory minimum sentence of 15 years on a person who violates section 922(g) and has three previous convictions for a “serious drug offense,” a “violent felony,” or some combination of the two. In Johnson v. United States, 135 S. Ct. 2551 (2015), the Supreme Court struck down the “residual clause” portion of ACCA’s “violent felony” definition as unconstitutionally vague, leaving intact the definition’s “force clause,” which refers to offenses that have the use of physical force as an element, and its “enumerated felonies” clause, which lists several covered crimes. The Supreme Court later held that Johnson applied retroactively, and Mr. Jones filed for relief pursuant to 28 U.S.C. 2255. The district court denied relief, and Mr. Jones appealed to the Ninth Circuit. The Ninth Circuit observed that, because three of Mr. Jones’ five prior felony convictions were for armed robbery under Arizona Revised Statutes 13-1904, his ACCA sentence could stand only if this offense categorically qualified as an ACCA “violent felony.” It did not. Arizona Armed Robbery does not fall under the “force clause,” because it does not require the use of violent force. And it does not fall under the “enumerated felonies” clause, because robbery is not among the felonies enumerated. The court accordingly reversed the district court’s denial of Mr. Jones’ section 2255 motion.

(Congratulations to Assistant Federal Public Defender Keith J. Hilzendeger of Phoenix, Arizona.)

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United States v. Valdivia-Flores, 2017 WL 6044232 (9th Cir. Dec. 7, 2017): Because of Washington’s aiding and abetting statute, Washington drug-possession crime is not categorically an aggravated felony

Say what you will about Jose Valdivia-Flores — the guy loves this country. He came here illegally in 1995, pleaded guilty to a Washington drug-trafficking offense, was removed, returned illegally the next year, pleaded guilty to another crime, was removed to Mexico again in 2009, remained there “for a few days,” returned illegally again, pleaded guilty to illegal entry, was removed to Mexico again, and attempted to enter illegally once more using a false identity — whereupon he was arrested and charged with attempted illegal reentry and fraudulent use of an immigration document. At that point, he collaterally attacked the validity of his 2009 removal, arguing that it rested on the erroneous finding that his Washington drug-trafficking offense qualified as an aggravated felony pursuant to federal immigration law.

His first hurdle under 8 U.S.C. 1326(d) was to show that the denial of his right to appeal the 2009 removal violated his right to due process, despite the fact that at the time he had signed a form waiving that right. He cleared this hurdle by showing that his waiver was not considered and intelligent, because the form’s list of check-box options did not include a box for: “I want to contest the classification of my drug-trafficking conviction as an aggravated felony.” And it didn’t help that he was unrepresented and never appeared before an immigration judge who might have explained this option to him.

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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.

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Almost everybody owns a cell phone nowadays. But does that give the police license to obtain a warrant to search for and rummage through your home because they think you might own one and it might contain relevant evidence? In United States v. Griffith, a split panel of the D.C. Circuit undertook a thorough canvass of Fourth Amendment law and said they can’t do that, at least if the case doesn’t involve narcotics trafficking. The panel majority found error in the District Court’s denying a motion to suppress and vacated a jury conviction for unlawful possession of a firearm by a convicted felon. In so doing, the majority explored numerous legal doctrines which occur frequently in Fourth Amendment decisions.

The 28-page majority decision (Srinivasan & Pillard, JJ) noted that the underlying warrant authorized the officers to search for and seize all cell phones and other electronic devices in Griffith’s residence. The supporting affidavit offered almost no reason to suspect that Griffith owned a cell phone, or that any phone or other device containing incriminating information even would be found in his apartment. “In our view,” the majority stated, “the fact that most people now carry a cell phone was not enough to justify an intrusive search of a place lying at the center of the Fourth Amendment’s protection-a home-for any phone that Griffith might own.” (Slip Op. at 2).

Here, the police knew that Griffith was a member of a gang. Over a year-long investigation, much of which time Griffith was jailed on another matter, the officers uncovered tantalizing clues that he had driven a getaway vehicle used in a gang-related homicide. Upon Griffith’s release from jail, he moved into his girlfriend’s apartment. The police presented a 10-page affidavit to search her home. The affiant set forth a two-sentence conclusory assertion that gang members frequently stay in touch with one another via cell phones. The magistrate judge granted the application, which authorized the police to search any cell phones found in the apartment. (Slip Op. at 4-5).

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It’s far from easy to secure a writ of mandamus, especially when it’s a trial judge whose comments are at stake. But in United States v. Mohammed, the D.C. Circuit reversed an order of the United States Court of Military Commission Review (“CMCR:) and directed the removal of a commissioner whose public comments suggested he couldn’t fairly adjudicate a prosecution arising from the 9/11 bombings.

The per curiam decision (Rogers, Tatel & Griffith, JJ) was called to review nearly a dozen speeches, academic articles and presentations that Mr. Mohammed proffered as indicative of the commissioner’s bias against him. Jurisdiction was uncontested.

To secure mandamus, the Circuit explained, “First, the party seeking issuance of the writ must have no other adequate means to attain the relief he desires . . . . Second, the petitioner must satisfy the burden of showing that his right to issuance of the writ is clear and indisputable. Third, even if the first two prerequisites have been met, the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.” (Slip Op. at 2-3) (citing Cheney v. United States District Court for the District of Columbia, 542 U.S. 367, 380–81 (2004)).

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Brandon Laureys was convicted by a jury of attempted coercion and enticement of a minor and travel with intent to engage in illicit sexual conduct. The offense arose from an online encounter with an undercover detective with whom Laureys enthusiastically envisioned sexual encounters with a nine year-old girl. In United States v. Laureys, 653 F.3d 27, 35 (D.C. Cir. 2011), Laureys’ challenge that there was insufficient evidence of intent faltered but the panel remanded his claim of ineffective assistance of counsel to the district court. Following an evidentiary hearing at which his claims were rebuffed, Laureys appealed again. This time, in an opinion written by Circuit Judge Pillard, the Circuit concluded that Laureys’s trial counsel’s “grievously misguided effort to employ a mental health expert in his client’s defense was so flawed as to be ‘the sort of serious blunder that will singlehandedly support a Strickland [v.  Washington, 466 U.S.  668, 687-88, 694 (1984)] claim.’” (Slip Op. at 14) (quoting United States v. Hurt, 527 F.3d 1347, 1356 (D.C. Cir. 2008)).

Laureys was a young man with a prior federal sex offense conviction. In 2008, through an internet chat room, he unwittingly ensnared himself in the clutches of Timothy Palchak, a local detective who was posing as a man offering a sexual relationship with his “girlfriend’s”nine year-old daughter. Laureys expressed interest in joining them both for sex (“’you gotta invite me over . . . let me help with the little girl . . . train the little gir[l, man] . . . make her into a good little whore’”). (slip op. at 2). After a series of increasingly sexually-tinged chats, Laureys suggested “’let her meet me and everything first . . . make sure she wants to do it haha . . . could start with just letting me watch her an[d you]. . . til she feels more comfortable.’” (Id. at 3.)  For Laureys, the facts got worse — or so it would seem, at least to most people. After Palchak emailed Laureys a picture of a young girl, to which Laureys responded “‘you fucking NEED to let me hang out with her man.’” (Id.) After twice exchanging information about their own physical characteristics, Palchak and Laureys arranged to meet in D.C. When Laureys arrived at Palchak’s location, Laureys was arrested and later convicted of attempted coercion and enticement of a minor (18 U.S.C. § 2422(b)), and travel with intent to engage in illicit sexual conduct (18 U.S.C. § 2423(b)). (Id).

This would have been a daunting case for anyone to defend. Trial counsel contacted Dr. Frederick Berlin, a specialist in sexual disorders at Johns Hopkins University School of Medicine, about potentially serving as an expert witness to support the theory that Laureys lacked the requisite intent, because he had merely been fantasizing about sex with the girl in his chat but really wanted to meet with Palchak for an assignation. Meanwhile trial counsel conducted his own internet search and conjured a different theory – notably one without support in scholarly research (Slip Op. at 15) – that Laureys suffered from “cybersex addiction,” meaning that his “cybersex addiction and sexual compulsivity prevented him from forming the requisite intent.” (Slip Op. at 3-4).

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In 2012, the D.C. Circuit affirmed on direct appeal Khan Mohammed’s sentence and conviction for drug trafficking and international terrorism, but remanded for an evidentiary hearing on his claim of ineffective assistance of counsel. United States v. Mohammed, 693 F.3d 192 (D.C. Cir. 2012). Following an evidentiary hearing and a second direct appeal, the Circuit affirmed the conviction for drug trafficking but concluded that Mohammed’s trial counsel failed to investigate the possibility of impeaching the government’s central witness as biased against Mohammed, despite ample indication that he should and could do so.

After Mohammed, an Afghani national, was convicted of serious drug charges and the cause remanded for a hearing on his ineffective assistance claim, it was determined that trial counsel hadn’t followed up on representations that he intended to seek out witnesses in Afghanistan and travel there to interview them. In fact, he didn’t appear to make any effort to do that. Worse yet, he did not seek out witnesses whom Mr. Mohammed had identified as potentially able to support his claim that he wasn’t a Taliban member, contrary to the Government’s claim. Nor had he followed up on a Lewis-type request to seek out the criminal record of the Government’s key witness on that charge, one Jaweed. (Slip Op. at 3) (citing Lewis v. United States, 393 A.2d 109 (D.C. 1978)). And if that wasn’t enough, the panel pointed out that defense counsel evidently undertook the most perfunctory of effort to investigate the strong suggestion that Jaweed’s romantic interest in Mohammed’s sister had been spurned – a sign of potential bias. Nor had counsel explored various other tangible leads relating to bias, including Mohammed’s victory in a local election over Jaweed’s cousin and Jaweed’s involvement with a lawsuit involving Mohammed. (Slip Op. at 3-4).

At trial, Jaweed was the “pillar” and, in trial counsel’s later testimony, “‘bread and butter’” of the Government’s case. Defense counsel failed to probe Jaweed’s possible preexisting bias against Mohammed and called no witnesses. (Slip Op. at 4-5).

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The IRS was not amused by 2FT Fast Facts Tax Service, a tax preparation service owned by Sherri Davis (“Sherri”) and by Davis Financial Services, a similar follow-on operation that it contended was run by her son, Andre Davis (“Andre”), although she was its principal. Both concerns filed returns that falsely reported charitable and business deductions. With the aid of LaDonna Davis (“LaDonna”), Sherri’s niece and employee, and as it turned out, star cooperating witness, the Government indicted Sherri and Andre with conspiracy to defraud the United States by preparing and filing fraudulent and false individual income tax returns, in violation of 18 U.S.C. §§ 2, 371. Other counts charged Sherri and Andre with willfully aiding and assisting in the preparation of false returns, in violation of 26 U.S.C. § 7206(2); and Sherri was further charged with filing false individual returns, in violation of 26 U.S.C. § 7206(1) and 18 U.S.C. § 2.

At trial, the Government presented eleven witnesses who testified about Sherri’s preparation of false individual tax returns that claimed huge illicit deductions. LaDonna, for her part, related a story about being trained by Sherri on the niceties of tax fraud, to the point where ““it all became like a routine’ and she began filling in charitable deductions without even asking clients if they had receipts.” (Slip Op. at 4-5). Allegedly, after search warrants were executed, LaDonna tried to wave Andre away from coming to work for his mother but he demurred, expressing the view that “the investigation ‘wasn’t a big deal, and that it was just going to go away.’” (Slip Op. at 7).

Neither Sherri nor Andre testified, although Sherri presented witnesses as to her character and to impugn LaDonna’s. The Trial Judge dismissed as speculative one count against Andre of preparing a false tax return. The jury convicted Sherri and Andre on the conspiracy charge, convicted Sherri of several of the fraudulent preparation charges, and found Andre guilty of one charge of preparing a false tax return. (Slip Op. at 7-8).

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United States v. Ochoa, — F.3d —, 2017 WL 2836820 (9th Cir. July 3, 2017): Reentry defendant’s prior deportation held invalid because crime of conviction was not categorical match to removable offense; concurrence calls for en banc review to modify collateral attack caselaw

Mexican citizen Jose Ochoa was convicted of conspiracy to export defense articles without a license in violation of 18 U.S.C. 371 and 22 U.S.C. 2778, and deported. He returned and was charged with illegal reentry in violation of 18 U.S.C. 1326. He raised a collateral attack upon his prior deportation, arguing that the crime of which he was convicted was not a categorical match for the removable offenses enumerated in the Immigration and Nationality Act (INA). The Ninth Circuit agreed. The INA identifies conspiracy to commit illicit trafficking in firearms and firearms offenses as removable, but the statute Mr. Ochoa was convicted of having conspired to violate swept more broadly than the generic versions of these offenses, extending beyond firearms to a broad range of items including “underwater hardware.” Finding no clear indication that the statute was divisible, the court declined to apply the modified categorical approach. The court accordingly reversed Mr. Ochoa’s conviction and remanded the case with instructions to dismiss the indictment.

Judge Graber wrote a concurrence in which both of her fellow panel-members joined, urging en banc review. Judge Graber acknowledged that the panel’s holding was consistent with the court’s caselaw, but she criticized that caselaw as inconsistent with the statute governing the availability of collateral attacks upon prior deportations in reentry cases, and asserted that the court was on the minority end of a circuit split.