Articles Posted in Criminal Law

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Former Maricopa County Sheriff Arpaio was referred for criminal contempt in August 2016. The government obtained a conviction on July 31, 2017. On August 25, 2017, the President pardoned Arpaio, noting that Arpaio’s sentencing was “set for October 5, 2017.” On August 28, 2017, Arpaio moved “to dismiss this matter with prejudice” and asked the district court “to vacate the verdict and all other orders” plus the sentencing. On October 4, the district court dismissed with prejudice the action for criminal contempt. No timely notice of appeal order was filed. The Ninth Circuit denied a late-filed request for the appointment of counsel to “cross-appeal” the dismissal. The district court denied Arpaio’s second request and refused to grant “relief beyond dismissal with prejudice.” Arpaio filed a timely notice of appeal. In response to a request for the appointment of counsel to defend the order denying Arpaio’s request for vacatur, the government stated that it “does not intend to defend the district court’s order” and intends to argue, as it did in the district court, that the motion to vacate should have been granted. The Ninth Circuit appointed a special prosecutor to file briefs and present oral argument on the merits. View "United States v. Arpaio" on Justia Law

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After pleading guilty to a conspiracy, Shimabukuro served 78 months in prison and began five years of supervised release. Over the next eight years, the district court revoked Shimabukuro’s supervised release on three separate occasions in response to Shimabukuro’s violations of the terms of his release. The first time, the court sentenced him to 18 months imprisonment and 42 months of supervised release. The second time, the court imposed a sentence of one month of time served and an additional 41 months of supervised release with 150 days of intermittent confinement, broken into 50 consecutive weekends. When the court revoked Shimabukuro’s release for the third time, it sentenced him to 17 months imprisonment with no additional supervised release. Shimabukuro objected that 17 months in prison—when aggregated with his previous 18-month term of imprisonment, one month of time served, and 150 days of intermittent confinement— exceeded 18 U.S.C. 3583(e)(3)’s cap on time “in prison” that a court may impose when revoking supervised release. The district court reasoned that intermittent confinement did not count as time “in prison.” The Ninth Circuit vacated. The 150 days constitute time spent “in prison” and should have been included in the calculation of the aggregate time Shimabukuro had served. View "United States v. Shimabukuro" on Justia Law

Posted in: Criminal Law

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Honolulu police obtained a warrant to open a suspicious package, intercepted at the UPS facility; it contained 500 packets labeled “bath salts” and “Spike Max.” Initial testing indicated but did not confirm that they contained methylenedioxypyrovalerone (MDPV), which was illegal in Hawaii. Six days later, the police made a controlled delivery to Smith’s home. After taking the delivery, Smith was arrested without a warrant. Hours later, the police effected controlled buys of MDPV at stores Smith owned. They seized evidence from the house and the stores. Later that day, an officer completed a sworn application; a state judicial determination of probable cause for extended restraint was signed on the second day following the arrest. The police received a lab report that confirmed that the substances were MDPV and informed Smith of his rights. Smith did not provide a statement and was released. Smith was never prosecuted. Smith filed suit under 42 U.S.C. 1983. During jury deliberations, the court received an emergency phone call indicating that the foreperson had physically threatened another juror. After individual interviews, both attorneys stipulated to the dismissal of one juror. The jury then deliberated for four hours with six, instead of seven, jurors, returning a verdict that rejected Smith's claim of unreasonable detention. The Ninth Circuit affirmed, rejecting Smith’s arguments that the verdict was against the clear weight of the evidence and that misconduct by defense counsel and witnesses painted Smith as a “bad guy.” View "Smith v. City & County of Honolulu" on Justia Law

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Jose Maria Garcia-Martinez was a lawful permanent resident at the time of his convictions, and the BIA found him removable, under 8 U.S.C. 1227(a)(2)(A)(ii), for having been convicted of two or more crimes involving moral turpitude (CIMT), not arising out of a single scheme of criminal misconduct. He was granted review of a Board of Immigration Appeals (BIA) decision, arguing the BIA erred in concluding that Garcia’s Oregon theft convictions were CIMTs. The Ninth Circuit noted that the Oregon theft offenses for which Garcia was convicted did not require a permanent taking of property. Therefore, the panel concluded that, at the time Garcia committed the offenses, they were not crimes involving moral turpitude because for many decades the BIA had required a permanent intent to deprive in order for a theft offense to be a crime involving moral turpitude. "In short, Garcia’s thefts were not CIMTs, and his removal order must be set aside. ... the BIA has changed or updated or revised its rule for the future. Nevertheless, that rule should not be applied to Garcia, who pled and was convicted while the old rule was extant." View "Garcia-Martinez v. Sessions" on Justia Law

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The Ninth Circuit affirmed the district court's denial of a motion to enjoin the government's prosecution of Defendants Gilmore and Hemsley for conspiracy to manufacture marijuana plants and manufacture of marijuana plants. In the Consolidated and Further Continuing Appropriations Act (hereafter Section 538), Congress barred the Department of Justice from using appropriated funds to prevent certain States, including California, from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana. The panel held that Section 538 did not limit the government's ability to enforce federal drug laws on federal land. View "United States v. Gilmore" on Justia Law

Posted in: Criminal Law

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On remand from the Supreme Court, the Ninth Circuit affirmed defendant's conviction for bank fraud. In this case, defendant contended that the disjunctive form of the district court's jury instruction that a "scheme to defraud" within the meaning of 18 U.S.C. 1344(1) means a defendant must intend to "deceive, cheat or deprive" the bank of something of value. The panel held that this argument the Supreme Court identified for consideration on remand was not fairly presented to the panel or to the district court. The panel held that, even if defendant had preserved the objection, any error was harmless. View "United States v. Shaw" on Justia Law

Posted in: Criminal Law

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The Ninth Circuit affirmed defendant's conviction for sexually abusing a developmentally delayed 11 year old girl. The panel held that the district court properly exercised its discretion in admitting the testimony of a nurse practitioner and a law enforcement officer about statements the victim made to them during interviews conducted shortly after the abuse occurred. The panel also held that defendant's remaining challenge to the propriety of the prosecutor's closing argument did not merit reversal. View "United States v. Kootswatewa" on Justia Law

Posted in: Criminal Law

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The Ninth Circuit affirmed defendants' convictions for charges related to their misuse of funds belonging to the Wounded Marine Careers Foundation (WMCF). Defendants were convicted, among other things, of violating 18 U.S.C. 666, a statute prohibiting the wrongful taking of property from an organization that receives more than $10,000 in federal "benefits" during a one-year period. The panel held that there was sufficient evidence from which the jury could reasonably conclude that WMCF did receive "benefits" within the meaning of the statute. The panel reasoned that an entity need not be the primary beneficiary of a federal program to qualify as having received "benefits," and that the Vocational Rehabilitation and Employment Program aimed to aid veterans and to ensure the viability and quality of the organizations that served those veterans. View "United States v. Paixao" on Justia Law

Posted in: Criminal Law

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The Ninth Circuit affirmed the district court's grant of summary judgment in a 42 U.S.C. 1983 action alleging that a police officer used excessive force. Plaintiff alleged that excessive force was used when the officer pointed a gun at plaintiff's head in the context of a felony arrest after plaintiff had already been searched, was calm and compliant, and was being watched over by a second armed deputy. The panel held that pointing a loaded gun at the suspect's head in these circumstances constituted excessive force under the Fourth Amendment, but that the officers here were entitled to qualified immunity because the law was not clearly established at the time of the traffic stop. View "Thompson v. Copeland" on Justia Law

Posted in: Criminal Law

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Defendant appealed his conviction in the United States District Court for the District of Guam based on his guilty plea for attempted possession of methamphetamine with intent to distribute. The Ninth Circuit affirmed the conviction and rejected defendant's argument that his constitutional right under Article III, Section 2, clause 3 and the Sixth Amendment to be tried in a state or district where the crime was committed was violated because Guam is neither a state nor a district. The panel held that Congress never extended Article III, Section 2, clause 3 to Guam. The panel explained that the Sixth Amendment, which provides for the right to a jury trial in "the State and district wherein the crime shall have been committed," did apply to Guam. Congress deemed Guam a "district," defendant's crime occurred in part in the district of Guam, and therefore venue in Guam was proper. View "United States v. Obak" on Justia Law

Posted in: Criminal Law