Justia Criminal Law Opinion Summaries

Articles Posted in US Court of Appeals for the Ninth Circuit
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The Ninth Circuit vacated defendant's conviction and sentence for conspiracy to violate 18 U.S.C. 2332g, which prohibits illicit dealings in guided surface-to-air missiles. Defendant, a Jordanian-born, naturalized United States citizen, and an international arms dealer, was captured by DHS in Greece in an undercover sting operation. Defendant was extradited from Athens to Los Angeles, by way of New York. The government subsequently asked for an erroneous jury instruction on venue, which the district court gave, over defendant's objection.The panel concluded that, although defendant waived his challenge to the indictment for improper venue by failing to bring it before the pretrial motions deadline, he was still entitled to a correct instruction on venue. The panel explained that when defendant landed at John F. Kennedy International Airport, in custody, venue was laid in the Eastern District of New York for the section 2332g charge even though the government had not yet brought it. The panel concluded that the error was harmful because a reasonable juror could have found it more likely than not that defendant's restraint in Greece really was in connection with the alleged section 2332g offense, and thus his conviction must be vacated. Finally, the panel applied plain error review and disposed of defendant's remaining claims regarding extraterritoriality, the doctrine of specialty, and due process. The panel remanded for further proceedings. View "United States v. Ghanem" on Justia Law

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The Ninth Circuit vacated the district court's order denying defendant's motion for compassionate release under 18 U.S.C. 3582(c)(1)(A)(i). The panel held that the current version of the U.S. Sentencing Guidelines Manual 1B1.13 is not an "applicable policy statement[] issued by the Sentencing Commission" for motions filed by a defendant under the recently amended section 3582(c)(1)(A). The panel explained that the First Step Act of 2018 amended section 3582(c)(1)(A) to allow for defendants, in addition to the Bureau of Prisons (BOP) Director, to file a motion, but section 1B1.13 has not since been amended and only references motions filed by the BOP Director. The dangerousness finding is part of the Sentencing Commission's policy statement in U.S.S.G. 1B1.13(2), but is not statutorily required under section 3582(c)(1)(A)(i). Because the district court relied on section 1B1.13, the panel remanded so that the district court can reassess defendant's motion under the correct legal standard. View "United States v. Aruda" on Justia Law

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The Ninth Circuit filed: 1) an order withdrawing the opinion and concurring opinion appearing at 965 F.3d 724 (9th Cir. 2020), denying the petition for rehearing en banc as moot, and providing that the parties may file petitions for rehearing and hearing en banc in response to the new opinion; 2) a new opinion denying the petitions for review of the BIA's decisions; and 3) a new concurring opinion.The panel held, based on its binding precedent, that the BIA did not err in concluding that petty theft under section 484(a) of the California Penal Code is a crime involving moral turpitude, and that the BIA did not abuse its discretion in denying petitioner's motion to reopen to seek asylum and related relief based on changed country conditions in the Philippines. The panel explained that it need not address the question whether Matter of Diaz-Lizarraga is retroactively applicable in this case and need not apply the Montgomery Ward test to answer that question. View "Silva v. Garland" on Justia Law

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The Ninth Circuit concluded that the district court did not err in determining that defendant's 18 U.S.C. 924(c) convictions constitutes a "controlled substance offense," as defined by USSG 4B1.2(b).In this case, defendant pleaded guilty to two drug trafficking crimes: (1) possession with intent to distribute heroin in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(C); and (2) possession with intent to distribute cocaine in violation of the same provisions. The panel explained that, either of these crimes could serve as the predicate for defendant's section 924(c) conviction. Therefore, the panel concluded that, under the modified categorical approach, defendant's section 924(c) conviction is a "controlled substance offense" within the meaning of section 4B1.2(b). Accordingly, the panel affirmed the district court's application of the relevant sentencing enhancement because defendant "committed" the section 924(c) "offense subsequent to sustaining one felony conviction of . . . a controlled substance offense[.]" View "United States v. Furaha" on Justia Law

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The Ninth Circuit affirmed the district court's denial of a habeas corpus petition challenging petitioner's Arizona state conviction for rape and murder and his death sentence. The panel concluded that the district court properly declined to grant habeas relief as to Claim I, which was based on the trial court's denial of severance. Given the Arizona Supreme Court's alternative ruling that evidence concerning each attack would have been admissible in separate trials on each attack, and petitioner's failure to assign any federal constitutional error to that dispositive ruling in his first PCR petition or his habeas petition, the panel affirmed the denial of habeas relief as to Claim 1.The panel also concluded that the district court properly declined to grant habeas relief as to claim 2, which was based on the trial court's admission of three eyewitness identifications. The panel explained that the state court's rejection of this claim was not contrary to, or an unreasonable application of, clearly established federal law, nor did it rest on an unreasonable determination of the facts. The panel further concluded that the district court properly determined that McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015) (en banc), has no impact on Claim 31 of petitioner's habeas petition; as to Claim 4, the district court properly denied petitioner leave to amend his habeas petition to add five previously withdrawn ineffective assistance of counsel claims on the grounds that those claims are untimely and do not relate back to his timely-filed claims and that petitioner unduly delayed seeking leave to amend; and as to Claim 5, the district court properly concluded that the trial court's admission of 19 purportedly "gruesome" crime scene and autopsy photos does not entitle petitioner to habeas relief because the state court's decision did not involve an objectively unreasonable application of clearly established Supreme Court precedent or an objectively unreasonable determination of the facts. View "Walden v. Shinn" on Justia Law

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The Ninth Circuit reversed defendant's conviction on three counts of knowingly discharging a pollutant in violation of the Clean Water Act. Defendant's conviction stemmed from his role in orchestrating a scheme charging construction companies to dump dirt and debris on lands near the San Francisco Bay, including "wetlands" and a "tributary."The panel concluded that the Act requires the government to prove a defendant knew he was discharging material "into water." In this case, the jury instructions failed to make this knowledge element clear, and the error was not harmless. Accordingly, the panel remanded for a new trial with jury instructions that make clear the government's burden to prove that the defendant knowingly discharged fill material "into water." The panel also concluded that the regulation defining "waters of the United States" at the time of defendant's trial is not unconstitutionally vague, and that a newly promulgated 2020 regulation that substantially narrowed the definition of "waters of the United States" represents a change in the law that does not apply retroactively. View "United States v. Lucero" on Justia Law

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The Ninth Circuit reversed the district court's dismissal of an indictment charging defendants with conspiracy to violate the Anti-Riot Act and three of those defendants with substantively violating the Act. The district court held that the Act was unconstitutional on the basis of facial overbreadth under the First Amendment.The panel applied Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam), and concluded that most of the provisions of the Act are reasonably construed as constitutional, and defects are severable from the remainder of the Act. In this case, there was no violation of the First Amendment in the Act's overt act provisions; its definition of a riot; or in subparagraphs (1), (2), and (4) of 18 U.S.C. 2101(a), except insofar as subparagraph (2) prohibits speech tending to "organize," "promote," or "encourage" a riot, and 18 U.S.C. 2102(b) expands the prohibition to "urging" a riot and to mere advocacy. The panel explained that the Act prohibits unprotected speech that instigates (incites, participates in, or carries on) an imminent riot, unprotected conduct such as committing acts of violence in furtherance of a riot, and aiding and abetting of that speech or conduct. Once the offending language is severed from the Act, the panel concluded that the Act is not unconstitutional on its face and remanded for further proceedings. View "United States v. Rundo" on Justia Law

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Defendants Thompson and Fincher appealed their convictions and forfeiture provisions of their sentences for charges related to their involvement in an "advance pay" scheme with a third coconspirator. The Ninth Circuit concluded that there was no constructive amendment of the indictment where the indictment alleged all of the elements of conspiracy to commit wire fraud in violation of 18 U.S.C. 1343 and 1349. In this case, defendants were tried and convicted of the crime charged, and there was no reason to include in the jury instructions the surplusage relating to the 18 U.S.C. 371 crime that was not charged.The panel also concluded that because the forfeiture judgment against defendants amounted to joint and several liability contrary to Honeycutt v. United States, 137 S. Ct. 1626 (2017), the panel must vacate and remand it. In Honeycutt, the Supreme Court held that, in a conspiracy, a defendant may not, for purposes of forfeiture, be held jointly and severally liable for property that his co-conspirator derived from the crime but that the defendant himself did not acquire. On remand, the district court should make findings denoting approximately how much of the proceeds of the crime came to rest with each of the three conspirators. The panel explained that though no forfeiture judgment was issued against the third coconspirator, neither Thompson nor Fincher can be subjected to forfeiture of amounts that came to rest with the third coconspirator, since those amounts were not proceeds that came to rest with them. The panel concluded that the forfeiture judgments must be separate, for the approximate separate amounts that came to rest with each of them after the proceeds were divided among them. View "United States v. Thompson" on Justia Law

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The Ninth Circuit denied a petition for review of the BIA's decision holding that petitioner's 1999 conviction for simple possession of cocaine in violation of California Health and Safety Code 11350 qualifies as a "controlled substance offense," thereby rendering him removable under section 237(a)(2)(B)(i) of the Immigration and Nationality Act (INA), 8 U.S.C. 1227(a)(2)(B)(i).Although California Health and Safety Code 11350, by its terms, applies to a broader range of "controlled substance[s]" than the narrower federal definition that governs under section 237(a)(2)(B)(i), the panel agreed with the BIA that petitioner's conviction nonetheless qualifies under the so-called "modified categorical" approach to analyzing prior convictions. Applying this approach, the panel concluded that section 11350 is a "divisible" statute that defines multiple alternative offenses, depending upon which controlled substance was possessed. In this case, because petitioner's conviction under section 11350 was for possession of cocaine, and because cocaine qualifies as a "controlled substance" under the applicable federal definition, it follows that petitioner was convicted of an offense "relating to a controlled substance" within the meaning of section 237(a)(2)(B)(i). Therefore, the panel concluded that petitioner was properly ordered to be removed from the United States. View "Lazo v. Wilkinson" on Justia Law

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The Ninth Circuit affirmed the district court's denial of defendant's 28 U.S.C. 2255 motion to vacate his sentence based on the ineffective assistance of counsel during plea negotiations that took place before defendant was formally accused of any crime. Traditionally, the panel explained that the Sixth Amendment has been interpreted to mean that the right to counsel attaches when a criminal defendant is formally charged. Defendant asked the panel to reexamine the traditional approach to attachment of the Sixth Amendment right to counsel in order to recognize that the right to counsel may attach before there has been a formal charge.The panel concluded that it is not in a position to do so, however, because it cannot overrule binding circuit precedent. The panel also concluded that this is not an appropriate case to ask for an en banc court to consider overruling United States v. Hayes, 231 F.3d 663, 669–70 (9th Cir. 2000) (en banc), since this defendant was appointed counsel, and the record indicates that defendant's counsel was not ineffective. View "United States v. Olson" on Justia Law