Justia U.S. 9th Circuit Court of Appeals Opinion Summaries

Defendants are Anthony Pelicano, Mark Arneson, Rayford Turner, Abner Nicherie, Kevin Kachikian, and Terry Christensen. Defendants appealed their convictions for crimes stemming from a widespread criminal enterprise offering illegal private investigation services in Southern California. Defendants raised numerous issues on appeal. The court vacated Turner’s conviction for aiding and abetting computer fraud, Arneson’s convictions for computer fraud and unauthorized computer access, and Pellicano’s convictions for aiding and abetting both computer fraud and unauthorized computer access; the court also vacated Nicherie’s conviction for aiding and abetting a wire interception; the court affirmed the remaining convictions, including the RICO convictions of Pellicano, Arneson, and Turner for operating PIA’s criminal enterprise, Christensen’s convictions based on hiring that enterprise to illegally wiretap Lisa Bonder, and Kachikian’s convictions for his role in PIA’s wiretapping; the court vacated the sentences imposed on defendants whose convictions were vacated in part-Pellicano, Arneson, and Turner-and remanded for resentencing on their remaining, affirmed convictions; and the court remanded for further proceedings on the vacated counts of conviction, including the possibility of retrial, as may be appropriate, on those charges. View "United States v. Christensen" on Justia Law

Defendant appealed his conviction and sentence for being in possession of firearms while subject to a court order. The court concluded that the district court did not abuse its discretion when it sent the properly admitted video exhibit into the jury room or when it provided the jury with the technology to view the video exhibit during deliberations in the privacy of the jury room. Further, the procedure used by the district court did not violate defendant's right to be present at every stage of the trial under Federal Rule of Criminal Procedure 43(a). The court concluded that the district court did not abuse its discretion in applying a four-level enhancement under U.S.S.G. 2K2.1(b)(6)(B). Accordingly, the court affirmed the judgment. View "United States v. Chadwell" on Justia Law

In 2011, defendant was convicted for conspiracy to possess with intent to distribute approximately 195 kilograms of marijuana, in violation of 21 U.S.C. 946. In 2014, defendant was convicted of illegal reentry and the district court imposed a 16-level sentencing enhancement based on his prior conspiracy conviction under U.S.S.G. 2L1.2(b)(1). The court held that a federal drug trafficking conspiracy conviction is a conviction for conspiracy to commit a drug trafficking offense. The court concluded that it need not rely on a generic definition analysis because the plain meaning of section 2L1.2(b)(1) and related commentary is to encompass 21 U.S.C. 846 as a predicate offense. Accordingly, the district court properly applied the sentencing enhancement and the court affirmed the judgment. View "United States v. Rivera-Constantino" on Justia Law

Defendant was convicted of conspiracy to possess with intent to distribute 40 to 50 kilograms of cocaine. On appeal, defendant challenged his conviction and sentence on eleven grounds. The court concluded that defendant's prosecution did not result from “outrageous government conduct.” In this case, defendant was the target of a stash-house sting. The court concluded that the government knew enough about defendant as it was setting up the sting to eliminate the possibility that “it sought to manufacture a crime that would not have otherwise occurred.” In light of United States v. Black, there was a sufficient basis for the government to infer that defendant had a predisposition to take part in a planned robbery where one of defendant's co-conspirators reached out to the government; defendant readily agreed to participate in the supposed stash-house robbery, and defendant supplied plans and materials. View "United States v. Pedrin, Jr." on Justia Law

Defendant, convicted of misdemeanor Attempted Transportation of Illegal Aliens, appealed the magistrate judge’s denial of her 28 U.S.C. 2255 petition to vacate her conviction. The court held that the district court did not abuse its discretion in failing to conduct an evidentiary hearing. The court concluded, however, that the district court erred in failing to hold that counsel's performance was constitutionally ineffective. With respect to the ineffective performance prong, the district court erred because it applied the wrong legal standard. Here, the immigration statute expressly identifies defendant's conviction as a ground for removal. According to counsel's own declaration, before defendant pled guilty he never informed her that she faced anything more than the mere “potential” of removal. In this case, the immigration consequences of her plea were clear and her removal was virtually certain. Further, the government’s performance in including provisions in the plea agreement, and the district court’s performance at the plea colloquy, are simply irrelevant to the question of whether counsel’s performance fell below an objective standard of reasonableness. Moreover, counsel's statements made after defendant had already pled guilty do not satisfy his duty to accurately advise his client of the removal consequences of a plea before she enters it. The court further concluded that but for counsel’s deficient performance, defendant could similarly have negotiated a different plea agreement not requiring her removal. Therefore, defendant demonstrated prejudice. The court vacated the conviction and remanded. View "United States v. Rodriguez-Vega" on Justia Law

Petitioner was convicted of two misdemeanor offenses and one count of attempted second degree assault stemming from an incident in which he brandished a sword at a police officer. The attempted assault conviction was petitioner’s third strike under Washington’s three-strikes law, and he received a life sentence without the possibility of parole. Petitioner then sought postconviction relief under Strickland v. Washington, arguing that his trial counsel was deficient for failing to request a jury instruction on “unlawful display of a weapon,” a lesser included offense of second degree assault, which would avoid him getting a third strike. The Washington Supreme Court held that, because petitioner’s jury had found him guilty beyond a reasonable doubt of attempted second-degree assault, Strickland required a reviewing court to presume that the jury would have reached the same verdict even if instructed on a lesser offense. Consequently, the state court concluded that defense counsel’s failure to request a lesser-included-offense instruction caused no prejudice to petitioner. However, the district court adopted the magistrate judge's report and recommendation and granted petitioner habeas corpus relief. The court concluded that the state court's approach to Strickland was objectively unreasonable and therefore, the decision received no deference. The court found it reasonably probable that, if given an additional option, the jury would have convicted petitioner only of unlawful display of a weapon - which, unlike assault and attempted assault, has no intent requirement. This probability is “sufficient to undermine [the court's] confidence in the outcome” of the trial and satisfies the prejudice prong of Strickland. Finally, the court concluded that petitioner's attorney’s performance was clearly deficient. The court affirmed the judgment. View "Crace v. Herzog" on Justia Law

Petitioner, convicted of first degree murder, petitioned for a writ of habeas corpus on the ground, inter alia, that his state-court conviction rested on a confession obtained in violation of Missouri v. Seibert. The district court denied relief. The court held that, under Justice Kennedy’s concurrence, a postwarning statement must be suppressed if interrogating officers deliberately use the two-step interrogation technique that was used in Seibert, and if effective curative measures are not taken to ensure that the suspect genuinely understood the Miranda warnings. Under the circumstances of this case - where police interrogated petitioner, a fifteen-year-old, over the course of two days; where on the first day at the Riverside police station they conducted a two-hour unwarned interrogation; where on the second day at the San Bernardino sheriff’s station they obtained a confession during an unwarned interrogation following an unwarned polygraph test; and where they transported petitioner back to the Riverside police station and obtained a postwarning confession “clarifying” what he had stated at the sheriff’s station - a Seibert analysis was clearly required. Contrary to Seibert, the Court of Appeal did not conduct such an analysis. The Court of Appeal addressed, and treated as dispositive, the question whether petitioner’s postwarning statement was voluntary, which is precisely the question that is irrelevant under Seibert. Therefore, the court concluded that the decision was “contrary to . . . clearly established Federal law, as determined by the Supreme Court.” The court concluded that the officers in this case deliberately employed the two-step interrogation technique condemned in Seibert, and that the magistrate judge and the district court clearly erred in concluding otherwise. The court reversed and remanded with instructions to grant habeas relief. View "Reyes v. Lewis" on Justia Law

Defendant appealed his convictions for conspiracy to possess with intent to distribute MDMA and possession with intent to distribute MDMA and LSD. The court concluded that the brief, cursory search of defendant’s backpack for weapons was valid incident to a lawful arrest. Accordingly, the district court properly denied defendant's motion to suppress the evidence seized from his backpack. The court rejected defendant's remaining challenges and affirmed the judgment. View "United States v. Cook" on Justia Law

Defendant appealed his conviction for solicitation to commit a crime of violence; attempted extortion in violation of the Hobbs Act, 18 U.S.C. 1951; and use of interstate commerce facilities in the commission of murder-for-hire. The court concluded that there was sufficient evidence to convict defendant of all three counts; the district court properly rejected defendant's entrapment defense where the district court correctly found predisposition; but the district court materially erred by using an offense level of 32, rather than 37, to calculate defendant’s sentencing range under the Guidelines. Under either Count 1 or Count 3, defendant’s offense level should have been set by U.S.S.G. 2A1.5. The offense level for solicitation to commit murder under U.S.S.G. 2A1.5 is 37 - 33, with a 4-level increase for the “offer or the receipt of anything of pecuniary value for undertaking the murder.” Accordingly, the court affirmed the conviction but vacated the sentence, remanding for resentencing. View "United States v. Temkin" on Justia Law

Defendant appealed his conviction for three felony counts of making a false statement under penalty of perjury on personal income tax returns in violation of 26 U.S.C. 7206(1). The court reversed the convictions because circuit precedent establishes that “filing” is an element of a conviction under section 7206(1), and the government conceded that “the record does not support that the returns here were filed." View "United States v. Boitano" on Justia Law