Articles Posted in US Court of Appeals for the Ninth Circuit

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The Ninth Circuit granted a petition for review of the BIA's decision finding petitioner ineligible for cancellation of removal. The panel held that the BIA's determination that witness tampering under Oregon Revised Statutes 162.285 was a crime involving moral turpitude did not warrant deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944), because the agency's analysis directly conflicted with circuit precedent, and was inconsistent both internally and with prior BIA decisions. The panel held that Oregon Revised Statutes 162.285 was not categorically a crime involving moral turpitude because the statute captures conduct that was neither fraudulent nor base, vile, or depraved. Although the statute was divisible, the subsection that formed the basis for petitioner's conviction was likewise not a categorical match for a crime involving moral turpitude. Accordingly, the panel remanded for further proceedings. View "Vasquez-Valle v. Sessions" on Justia Law

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The Ninth Circuit held that the BIA erred in finding that petitioner's conviction for child abuse and neglect under Nevada law was categorically a "crime of child abuse" under 8 U.S.C. 1227(a)(2)(E)(i). The panel held that it was bound by this circuit's opinion in Martinez-Cedillo v. Sessions, No. 14-71742, 2018 WL 3520402 (9th Cir. July 23, 2018), which deferred to the BIA's interpretation, in Matter of Soram, 25 I. & N. Dec. 378 (BIA 2010), that the generic crime of child abuse includes acts and omissions that create at least a "reasonable probability" that a child will be harmed. In this case, the Nevada statute was broader than the federal generic crime and there was a realistic probability that Nevada could prosecute conduct under its statute that fell outside the scope of the federal generic crime. Therefore, the panel granted the petition for review of the BIA's determination that petitioner was removable. View "Alvarez-Cerriteno v. Sessions" on Justia Law

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The Ninth Circuit vacated the district court's denial of defendant's motion to suppress in a case where he was convicted of four counts of making false statements on immigration documents. Defendant sought to suppress recordings of conversations with his wife and his wife's testimony describing the conversation. The panel held that the district court erred by extending the sham marriage exception to the marital communications privilege. The district court did not make a finding about whether the marriage was irreconcilable when the IRS recorded defendant's statements, which would render the marital communications privilege inapplicable. Therefore, the panel remanded for the district court to rule on the issue of irreconcilability. Finally, the panel held that the evidence was sufficient to support the jury's finding that defendant understood the documents he signed, and the panel declined to reach defendant's remaining arguments. View "United States v. Fomichev" on Justia Law

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The Ninth Circuit granted petitioner's motion to file a second or successive 28 U.S.C. 2254 habeas corpus petition, challenging California's second-degree felony murder rule as unconstitutionally vague under Johnson v. United States. Determining that petitioner had standing and his claim was not effectively moot, the panel held that petitioner made a prima facie showing that his claim relied on the new and retroactively applicable rule in Johnson. The panel concluded that there was a plausible position that Johnson did not limit its constitutional rule to certain features of the Armed Career Criminal Act's residual clause that the State contends was absent from California's second-degree felony murder rule. View "Henry v. Spearman" on Justia Law

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The Ninth Circuit affirmed defendant's conviction in violation of 36 C.F.R. 34.5(b)(21), for being dangerously under the influence of alcohol while he was in the El Portal Administrative Site adjacent to Yosemite National Park. The panel held that the dangerous-drinking-prohibition in 36 C.F.R. 2.35 applied to the Site, whether or not it was a "park area." The panel explained that, even if the Site was not a "park area," the panel must read section 34.5 with the necessary changes to make it applicable to the Site. View "United States v. Nature" on Justia Law

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The Ninth Circuit reversed defendant's conviction for unlawful reentry into the United States in violation of 8 U.S.C. 1326. The panel held that defendant's prior 2008 and 2011 removals were fundamentally unfair and thus could not serve as a predicate removal for purposes of section 1326. The panel held that because the 2008 removal proceeding was in absentia, defendant satisfied the exhaustion and deprivation-of-judicial-review requirements for bringing a collateral attack on the validity of that removal. Furthermore, it was error to remove defendant for a crime of domestic violence under Immigration and Nationality Act 237(a)(2)(E)(i) based on his California battery conviction because circuit precedent established that California battery was not a categorical crime of violence. The panel also held that the due process defects in the 2008 removal proceeding infected the 2011 expedited removal for presenting invalid entry documents. In this case, the 2011 expedited removal order was also fundamentally unfair because it violated the process due to lawful permanent residents. View "United States v. Ochoa-Oregel" on Justia Law

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The Ninth Circuit affirmed defendant's conviction for two counts of sex trafficking by force, threats of force, fraud, or coercion. The panel held that defendant had ample notice of the charges against him and the jury was properly instructed on the nature of those charges. Therefore, defendant's argument that force, threats of force, fraud, and coercion were separate elements of the crime was unavailing. The panel clarified that the prosecution was required to prove every element of the crime beyond a reasonable doubt—without a requirement to subdivide the inquiry to the atomic level—and that jury instructions should not only match the statutory language but should be internally consistent. The panel also held that there was no constructive amendment of the indictment where the omission of the phrase "or any combination of such means" in the indictment did not seriously affect the integrity of the proceedings. In this case, the evidence at trial that defendant used force, threats of force, fraud, and coercion in trafficking his victims was voluminous and overwhelming. View "United States v. Mickey" on Justia Law

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The Ninth Circuit affirmed defendant's convictions for two separate fraud schemes pursuant to trials in 2009 and 2012. The panel held that defendant's Sixth Amendment right to counsel was not violated in the 2009 case when the district court partially rejected the eighth request for a continuance, after continuing the trial for over two and half years; the district court reasonably concluded that defendant had repeatedly alternated between invoking his right to self-representation and his right to counsel in order to manipulate proceedings and cause delay and thus his Sixth Amendment claim in the 2012 case was rejected; and the district court did not err in refusing to authorize funds to hire a psychiatrist to conduct a mental evaluation, in not sua sponte conducting a competency hearing, and in not declaring a mistrial during the 2012 trial. In this case, a reasonable court would not doubt defendant's competency. View "United States v. Turner" on Justia Law

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The Ninth Circuit affirmed defendant's conviction for mail and wire fraud, conspiracy to commit mail and wire fraud, and for money laundering offenses. The panel vacated defendant's sentence and restitution order, remanding for further proceedings. The panel rejected defendant's challenges to the mail and wire fraud jury instructions. The panel held that, assuming without deciding that defendant's argument to the contrary was not foreclosed by precedent, this court's caselaw that "participating" in a scheme to defraud was forbidden by the mail and wire fraud statutes did not amount to the creation of a common-law crime in violation of separation-of-powers principles, and the district court did not err by instructing the jury that it could find defendant guilty for "participating in" a scheme to defraud. The panel vacated the custodial sentence, holding that the record did not support the district court's imposition of a two-level "organizer" sentencing enhancement under USSG 3B1.1. Finally, the panel held that the written restitution order was internally inconsistent and inconsistent with the district court's oral announcement. Therefore, the panel vacated the restitution order and remanded for the district court to strike the lump-sum payment requirement from the judgment. View "United States v. Holden" on Justia Law

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The Ninth Circuit affirmed the district court's grant of habeas relief to petitioner, who was convicted and sentenced to death for killing an FBI agent. The panel applied de novo review and held that an unrevealed connection between the FBI agent and the judge who presided over petitioner's trial violated due process by creating a constitutionally intolerable risk of judicial bias. In this case, the FBI agent had previously investigated the judge for possible criminal prosecution. The panel held that the risk of bias deprived petitioner of a fair tribunal to which he was constitutionally entitled. View "Echavarria v. Filson" on Justia Law