Articles Posted in Criminal Law

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The Ninth Circuit vacated the district court's order denying defendant's motion seeking discovery on a claim of selective enforcement. Defendant was convicted of conspiracy to distribute cocaine and conspiracy to interfere with commerce by robbery after he was caught in a law enforcement reverse sting operation to rob a fictitious stash house. The panel held that in these stash house reverse-sting cases, claims of selective enforcement are governed by a less rigorous standard than that applied to claims of selective prosecution under United States v. Armstrong, 517 U.S. 456 (1996). The panel held that a defendant need not proffer evidence that similarly-situated individuals of a different race were not investigated or arrested to receive discovery on a selective enforcement claim like the defendant's. Rather, a defendant must have something more than mere speculation to be entitled to discovery, and the district court should use its discretion to allow limited or broad discovery based on the reliability and strength of the defendant's showing. Because the district court applied the wrong legal standard, the panel remanded to the district court to determine in the first instance whether defendant has met his burden. View "United States v. Sellers" on Justia Law

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Federal Rule of Civil Procedure 60(d) is subject to the certificate of appealability requirement in 28 U.S.C. 2253(c)(1). The Ninth Circuit denied petitioner's request for a certificate of appealability (COA) to appeal the district court's denial of his motion under Federal Rule of Civil Procedure 60(d)(3). Petitioner alleged that the district attorney who secured his conviction and death sentence made false sworn statements during the federal habeas proceedings, and that these statements were part of a larger scheme involving assignment of inmate informants to cells next to defendants incarcerated in Orange County, California, in hopes of obtaining incriminating admissions. The panel held that, although a COA was required in this case, petitioner was not entitled to one because regardless of how the prosecution obtained the informants' testimony or later explained its tactics to the district court, the evidence itself was not material to petitioner's conviction and sentence. View "Payton v. Davis" on Justia Law

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The Ninth Circuit affirmed Defendant Gonzalez, Luviano, and Ayala's convictions and sentences for conspiracy to deprive a visitor to the Los Angeles County Men's Central Jail of his civil rights in violation of 18 U.S.C. 241; violating his civil rights in violation of 18 U.S.C. 242; and falsifying reports to obstruct an investigation in violation of 18 U.S.C. 1519. Gonzalez was a sergeant with the LA County Sheriff's Department and the other two defendants were deputies under his supervision. A jury found defendants guilty of violating the visitor's civil rights and falsifying reports to conceal the wrongdoing. The panel held that there was sufficient evidence to convict Gonzalez and Ayala of conspiracy under section 241 and for the substantive offense of willfully depriving the visitor of his right to be free from the use of excessive force; the evidence was sufficient to convict Ayala and Luviano for falsifying reports under section 1519; defendants' challenge to the district court's denial of their request to dismiss a juror was rejected; there was no plain error in the jury instructions; the government did not commit misconduct during closing argument; and Ayala's challenge to her sentence was rejected. View "United States v. Gonzalez" on Justia Law

Posted in: Criminal Law

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The Ninth Circuit vacated defendant's 20 month sentence imposed after revocation of supervised release. In this case, in its order sentencing defendant, the district court relied on the probation officer's confidential sentencing recommendation, which included factual information that had not been disclosed to defendant and to which she had no opportunity to respond before her sentence was imposed. The panel took the opportunity to address the procedure employed by the district court, holding that even if the defendant is given an opportunity to appear and speak before the magistrate judge, the district court must provide the defendant an additional opportunity before the actual sentence is imposed. In this case, defendant's failure to obtain a hearing before the district court by objecting to the magistrate judge's finding and recommendation did not constitute an explicit waiver of her right to be present and allocute at the imposition of her sentence. Therefore, the panel remanded for resentencing. View "United States v. Gray" on Justia Law

Posted in: Criminal Law

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Although not all convictions under the Travel Act represent violations related to controlled substances, meaning that the statute is not a categorical match to the removal statute, the Travel Act is divisible in that respect. Petitioner challenged the BIA's finding that he was removable for a controlled substance offense and ineligible for cancellation of removal. The panel denied the petition for review in part and held that petitioner's conviction qualified as a controlled substance offense under the modified categorical approach. The panel held, however, that the BIA's conclusion that petitioner was ineligible for relief under 8 U.S.C. 1229b was not supported by substantial evidence. The panel held that section 1229b states that the relevant time period ends "when the alien is served a notice to appear." In this case, the BIA used the date on which the notice to appear was issued, not the date when it was served on petitioner. Therefore, the panel granted the petition in part and remanded for the BIA to consider petitioner's claim for cancellation of removal. View "Myers v. Sessions" on Justia Law

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The Ninth Circuit certified the following questions to the Oregon Supreme Court: 1. Is Oregon first-degree robbery, Or. Rev. Stat. 164.415, divisible? 2. Is Oregon second-degree robbery, id. 164.405, divisible? 3. Put another way, is jury unanimity (or concurrence) required as to a particular theory chosen from the listed subparagraphs of each statute? View "United States v. Lawrence" on Justia Law

Posted in: Criminal Law

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The Ninth Circuit affirmed the district court's denial of defendants' motion to suppress incriminating statements intercepted by government wiretaps. The panel held that the affidavits submitted by the FBI in support of the wiretap authorization were reasonably detailed, and did not contain a material misstatement or omission. Furthermore, the district court did not abuse its discretion in determining that the wiretaps were necessary. In this case, it was not illogical or implausible to conclude that the possibility of using a high-level confidential informant was unlikely to result in the successful prosecution of every member of the conspiracy. View "United States v. Estrada" on Justia Law

Posted in: Criminal Law

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Washington's accomplice liability statute renders its drug trafficking law broader than generic federal drug trafficking laws under the Armed Career Criminal Act, and thus Washington's drug trafficking law is not categorically a "serious drug offense" under the Act. The Ninth Circuit vacated defendant's sentence for being a felon in possession of a firearm and remanded for resentencing. The panel held that defendant's three convictions under Washington law could not constitute "serious drug offenses," and therefore he was not subject to the Act's fifteen year mandatory minimum sentence. View "United States v. Franklin" on Justia Law

Posted in: Criminal Law

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The Ninth Circuit affirmed defendant's conviction for conspiracy to manufacture, possess, and distribute marijuana, as well as other charges related to his ownership of a marijuana dispensary in California. The panel held that defendant suffered no wrongful impairment of his entrapment by estoppel defense, the anti-nullification warning was not coercive, and the district court's evidentiary rulings were correct in light of the purposes for which the evidence was tendered. The panel remanded for resentencing on the government's cross-appeal of the district court's refusal to apply a five-year mandatory minimum sentence, which unavoidably applied to defendant. The panel need not reach the question of whether an appropriations provision, which the panel interpreted as prohibiting the federal prosecution of persons for activities compliant with state medical marijuana laws, operates to annul a properly obtained conviction, however, because a genuine dispute exists as to whether defendant's activities were actually legal under California state law. The panel remanded for the district court to make findings regarding whether defendant complied with state law. View "United States v. Lynch" on Justia Law

Posted in: Criminal 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, set aside, or correct his sentence. In this case, defendant's sentence was imposed in 2000 under the then-mandatory Sentencing Guidelines, based in part on the district court's conclusion that he had previously been convicted of crimes of violence. The panel held that the motion was untimely under 28 U.S.C. 2255(f)(3), which authorizes filing within one year of "the date on which the right asserted was initially recognized by the Supreme Court and made retroactively applicable to cases on collateral review." Although defendant argued that the Supreme Court recognized a new right in Johnson v. United States, 135 S. Ct. 2551 (2015), the Supreme Court has not yet recognized such a right. Because the Supreme has not held that the mandatory Sentencing Guidelines are subject to this vagueness challenge, defendant's motion was not timely under the statute. The panel also denied a similar challenge by defendant to a conviction and sentence for use of a firearm during a crime of violence because the Supreme Court has not recognized that right. View "United States v. Blackstone" on Justia Law

Posted in: Criminal Law