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How often does one see a multiplicity victory? Not that often. Gary Cooper (per Judge Henderson, “not that one”), was convicted on a five-count indictment for his role in a scheme to steal from a labor union. On appeal, he successfully argued that the two charges (18 U.S.C. were in effect one and the same and therefore multiplicitous.  Because his sentence rested on an erroneous application of a U.S.S.G. § 2E5.1(b)(1) enhancement, Mr. Cooper pointed out that it was further marred. And finally, Mr. Cooper added that his 68-month sentences exceeded the statutory maximum provided for the conspiracy, wire fraud and honest services fraud counts (18 U.S.C. §§ 371, 1343, 1346)

In agreeing with Mr. Cooper, the panel (Henderson, Tatel and Williams, JJ) first examined the standard of review. Brushing aside the Government’s insistence that the multiplicity argument was forfeited, Judge Henderson found that the defense’s pretrial motion to dismiss (Rule 12(b), FED. R. CRIM. P.)  preserved the issue . (Slip. Op. at 8-9).

Moving on, and applying a de novo standard of review, Judge Henderson examined the two conspiracy counts to determine whether two counts of the same indictment charged a violation of the general conspiracy statute, 18 U.S.C. § 371?  “The question is, then, whether the counts charge ‘the same act or transaction”—i.e., the same conspiracy—at all.   (Slip. Op. at 10) (quoting and citing Blockburger v. United States, 284 U.S. 299, 304 (1932); Braverman v. United States, 317 U.S. 49,  52,54 (1942) (conspiracy  counts  are  multiplicitous  if  they  charge same agreement  under same conspiracy  statute); Ward  v. United States, 694 F.2d 654, 661 (11th Cir. 1983) (same, citing additional cases)).  Referring to United States v. Gatling, 96 F.3d 1151, 1152 (D.C. Cir. 1996), and applying the test used for double jeopardy case, viz., allegations of “common purpose, overlaps of participants and time, location where acts occurred, and interdependence,” the Circuit found that “[h]ere, all the factors point in the same direction: Counts One and Two charged the same conspiracy.” (Slip Op. at 11).

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United States v. Laney, __ F.3d __, 2018 WL 706497 (9th Cir. Feb. 5, 2018): Stipulations bearing only counsel’s e-signatures failed to show that defendants knowingly waived their right to a jury trial

Federal courts often remind us that they must “indulge every reasonable presumption against waiver of fundamental constitutional rights,” and that such waivers must be “voluntary, knowing, and intelligent” to be effective. What to do, then, when the only record confirmation that two fraud defendants waived their right to a jury trial consists of two stipulations bearing their lawyers’ electronic signatures?

Reverse, that’s what.

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United States v. Walton, — F.3d —, 2018 WL 650979 (9th Cir. Feb. 1, 2018): Armed Career Criminal Act sentence enhancement reversed where prior state convictions were not predicate offenses under the Act

The Ninth Circuit held that Donnie Lee Walton was improperly subjected to a sentencing enhancement under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. 924(e)(1), on his plea of guilty to being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. 922(g). The enhancement applies to defendants who have at least three prior convictions for “serious drug offenses” and/or “violent felonies.” Mr. Walton had four priors, including one for Alabama first-degree robbery and one for California second-degree robbery. Applying the “categorical approach” set forth in Supreme Court caselaw, the court looked only to the fact of conviction and the statutory definitions of the offenses, rather than the underlying facts of the cases, to determine whether these offenses triggered ACCA. Alabama first-degree robbery did not qualify, because it did not categorically require the use of violent physical force. California second-degree robbery did not qualify either, because it covers incidents in which force is used only negligently. The Ninth Circuit accordingly vacated the sentence and remanded the case for resentencing.

(Congratulations to Deputy Federal Public Defender Jonathan D. Libby and Federal Public Defender Hilary L. Potashner, of Los Angeles, California.)

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United States v. Brown, — F.3d —, 2018 WL 414106 (9th Cir. Jan. 16, 2018): Washington state drug conspiracy not a categorical match for federal drug conspiracy because it applies to conspiracy with undercover agent

Michael N. Brown pleaded guilty to being a felon in possession of a firearm. In sentencing him, the district court applied section 2K2.1(a)(4)(A) of the sentencing guidelines, which elevates the recommended sentencing range when the defendant has previously been convicted of a crime of violence or a “controlled substance offense.” Mr. Brown had previously been convicted of violating a Washington state drug conspiracy statute. The Ninth Circuit applied the “categorical approach” to determining whether that state-law prior was properly treated as a “controlled substance offense,” meaning that the court compared the state crime’s statutory elements to the generic federal version of the offense. The Ninth Circuit found that the Washington and federal versions were not a “categorical match,” because the Washington version applies to a situation in which the defendant’s sole coconspirator is actually an undercover agent, while the federal generic version does not. The court accordingly vacated Mr. Brown’s sentence and remanded the case for resentencing. Judge Owens concurred, acknowledging that the holding was correct under the governing law, but complaining that the categorical approach has “deviated from common sense,” and urging the Supreme Court to “junk this entire system” in favor of a regime based on the length of previous sentences.

(Congratulations to Davina T. Chen of Glendale, California.)

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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)).