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United States v. Liew, — F.3d —, 2017 WL 1753269 (9th Cir. May 5, 2017): Trade-secret theft counts reversed and case remanded for in camera examination of potential Brady material

Being prosecuted in federal court is bad enough – but imagine being sandwiched between a civil lawsuit and a criminal prosecution, both addressing the same conduct. One might well fear that the two cases in combination would add up to more than the sum of their parts. One might well wish that they could be twisted apart, and kept separate.

Which brings us to Oreo cookies, and Walter Liew. E.I. du Pont de Nemours and Company obtained information suggesting that Mr. Liew, who had hired two former DuPont employees, was using the company’s proprietary technique for making titanium dioxide, a white pigment used in (among other things) the filling in Oreo cookies. DuPont filed a civil complaint alleging trade secret misappropriation. Mr. Liew filed an answer in which he denied having wrongfully obtained or possessed DuPont’s trade secrets. Meanwhile, the FBI began investigating whether Mr. Liew had stolen DuPont’s trade secrets and sold them to China. Eventually the feds indicted Mr. Liew on numerous counts, and the jury convicted him on all of them. But when the Ninth Circuit broke open the trial record, it discovered that all was not lily-white inside.

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United States v. Velazquez, — F.3d — (9th Cir. May 1, 2017): District court constructively denied defendant’s right to counsel by failing to inquire into breakdown of attorney-client relationship

How bad was the relationship between drug-trafficking defendant Guadalupe Velazquez and her counsel? Not merely She-tried-to-fire-him bad. Beyond She-claimed-that-he-failed-to-convey-the-plea-deal-to-her bad. We’re talking She-surreptitiously-recorded-a-meeting-with-him-to-show-how-bad-the-relationship-was bad. That’s bad.

Ms. Velazquez expressed her concerns about this bad relationship in a pro se request for new counsel. The district court denied the request in a summary six-minute hearing. She tried to explain her concerns to the magistrate judge at her arraignment. The magistrate judge responded by explaining in detail why she should accept the plea agreement — which she was quite reluctant to do, because it required her to say that she was well pleased with her counsel’s performance. So finally she threw up her hands and signed the plea deal, which contained an appeal waiver. Along the way she also filed another motion for new counsel — but the district court, noting that in the plea deal she stated that she was well pleased with her counsel’s performance, denied it. The court accepted the plea agreement and sentenced Ms. Velazquez to 121 months in custody.

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United States v. Davis, — F.3d — (9th Cir. Apr. 14, 2017): Jury instruction constructively amended sex trafficking charge by broadening mens rea element

A grand jury indicted Ricky Davis on two counts, one of which was attempted sex trafficking of a minor “knowing or in reckless disregard of the fact that the person had not attained the age of 18 years.” Later, after the grand jurors had been sent home and the case was about to go to Mr. Davis’ jury, the district court described the charge in the jury instructions as attempted sex trafficking of a minor knowing or recklessly disregarding the victim’s age or having had “a reasonable opportunity to observe” the victim. The last piece was lifted out of the statute — but that did not make it okay, because it constructively amended the charge in the indictment. When a constructive amendment like this happens, it is impossible to know whether the grand jury would have indicted for the crime actually proved, causing the grand jury process to look like a bit of a charade. Noting that a constructive amendment constitutes per se reversible error, the Ninth Circuit reversed Mr. Davis’ attempted sex trafficking conviction. Because his conviction on another count survived and the reversal of the attempted sex trafficking charge “unbundled” the sentencing package, the court remanded the case for resentencing on an open record, or for retrial on the attempted sex trafficking charge.

Defense appellate lawyers: Did you notice the remarkable phrase “per se reversible error” up there? The constructive amendment issue belongs on your top shelf, next to Apprendi, Johnson, and “they forgot to prove an element.”

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United States v. Arriaga-Pinon, — F.3d —, 2017 WL 1291306 (9th Cir. Apr. 7, 2017): Illegal reentry defendant’s prior conviction under California vehicle-theft statute not shown by modified categorical approach to qualify as aggravated felony

Guillermo Arriaga-Pinon was convicted of unlawful reentry following removal in violation of 8 U.S.C. 1326(a) and (b). He received a sentencing enhancement under United States Sentencing Guidelines 2L1.2(b)(1)(C) on the premise that, before being removed, he had been convicted of an “aggravated felony.” Mr. Arriaga had been convicted before removal of a violation of a vehicle-theft statute, California Vehicle Code section 10851(a). Mr. Arriaga argued that a violation of this statute does not categorically constitute an aggravated felony, and that, in light of Mathis v. United States, 136 S. Ct. 2243 (2016), the statute is “indivisible” and thus the “modified categorical” approach could not be applied to determine whether his particular offense qualified as an aggravated felony. The Ninth Circuit had held in Duenas-Alvarez v. Holder, 733 F.3d 812 (9th Cir. 2013), that this statute is divisible, but Mr. Arriaga argued that Mathis abrogated Duenas-Alvarez. Mr. Arriaga’s Ninth Circuit panel noted that there are “serious questions” as to whether Duenas-Alvarez survived Mathis, but declined to reach that question. Instead the panel held that, assuming that Duenas-Alvarez remained good law, Mr. Arriaga would still be entitled to relief because the modified categorical approach failed to clarify whether he was convicted as a principal or as an accessory after the fact, and only conviction as a principal qualifies as an aggravated felony. The court accordingly reversed and remanded the case for resentencing. Chief Judge Thomas took the “somewhat unusual” step of writing a separate concurrence to his own opinion, in which he painstakingly demonstrated why Mathis requires that, in an appropriate case, Duenas-Alvarez be overruled.

Duenas-Alvarez v. Holder — if you are reading this, a word of advice: Don’t buy; rent.

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United States v. Perkins, — F.3d —, 2017 WL 957205 (9th Cir. Mar. 13, 2017): Agent’s omission of relevant information from warrant invalidated computer search

There’s an old story about a two-car race, orchestrated during the height of the Cold War, between a driver from the United States and a driver from the Soviet Union. The race is close, but the American driver narrowly wins. The next day’s headline in the state-run Soviet newspaper reads: “In historic race, Soviet driver finishes second, while American driver barely manages to finish second to last.” It’s all true, of course, but the omission of material information renders it rather misleading. Amusing enough, as a parable of state propaganda; less so as a template for drafting a search warrant affidavit.

Which brings us to Mr. Charles Perkins. Mr. Perkins was en route to the United States through a Canadian airport when Canadian law enforcement agents learned that he was a registered sex offender and decided to have a look at his laptop. They found two questionable images, and called in an officer with expertise in child exploitation crimes. The expert examined the images and wrote up a report explaining his conclusion that they did not meet the Canadian definition of child pornography. Mr. Perkins went on to the United States, while the Canadian expert’s report went to the U.S. Department of Homeland Security. An American DHS agent drafted an affidavit, based on the Canadian expert’s report, in support of an application for a warrant to search Mr. Perkins’ home computers. The agent relayed the basic facts from the Canadian expert’s report, but omitted mitigating portions of the Canadian officer’s descriptions of the images, failed to include the actual images, and failed to mention that the Canadian expert had determined that the images were not pornographic. Finding that these omissions were knowing and misleading, and that a properly-drafted affidavit would not support probable cause, the Ninth Circuit held that the evidence derived from the search warrant should have been suppressed, and vacated Mr. Perkins’ conviction. Judge Murguia dissented, arguing that the majority should have exhibited greater deference to the district court’s assessment of the agent’s omissions.

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United States v. Martinez, — F.3d —, 2017 WL 942673 (9th Cir. Mar. 10, 2017): District court breached Rule 43 and the Sixth Amendment by answering jury note without consulting with defense counsel

You know that elaborate routine when the jury, in the midst of its deliberations, sends the judge a note, and the judge summons both parties’ counsel, and they all gather in open court and closely examine the note, and then jointly hammer out a painstakingly-worded response? Did you ever wonder whether all of that was really necessary?

Yup. Just ask Bladimir Martinez.

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United States v. Vazquez-Hernandez, — F.3d —, 2017 WL 836074 (9th Cir. Mar. 3, 2017): District court plainly erred by failing to instruct jury that reentry defendant must have had intent to enter the U.S. “free from official restraint,” and evidence was insufficient to prove that element

You can’t be sorta deceased. You can’t be kinda pregnant. But can you be unlawfully in the United States-ish?

Well, kinda.

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

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

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

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

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

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

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

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

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

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

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