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

Articles Posted in Criminal Law
by
The Ninth Circuit amended its Opinion filed April 27, 2022, affirming a conviction and sentence on one count of attempted sexual exploitation of a child, and one count of possession of sexually explicit images of children, in a case in which Defendant was arrested returning from the Philippines where he engaged in sex tourism involving minors.   Defendant argued that the evidence seized from his electrical devices upon his arrest should have been suppressed because Yahoo and Facebook were acting as government agents when they searched his online accounts. The panel rejected Defendant’s arguments (1) that two federal statutes—the Stored Communications Act and the Protect Our Children Act—transformed the ESPs’ searches into governmental action, and (2) that the government was sufficiently involved in the ESPs’ searches of Defendant’s accounts to trigger Fourth Amendment protection.   The panel declined to reach the question of whether the preservation requests implicate the Fourth Amendment because even assuming that they do, there is no basis for suppression given that the record establishes that the ESPs’ preservation of the defendant’s digital data had no effect on the government’s ability to obtain the evidence that convicted him.   The panel concluded that the affidavit—which described Yahoo’s internal investigation and the resulting findings, as well as the information Facebook provided to the National Center for Missing and Exploited Children after searching the defendant’s accounts—established a fair probability that child pornography would be found on the defendant’s electronic devices. The panel wrote that there was no impermissible double counting here, as the enhancements were premised on separate exploitative acts. View "USA V. CARSTEN ROSENOW" on Justia Law

by
In a case in which the Supreme Court vacated the Ninth Circuit’s decision filed April 7, 2020, and reported at 954 F.3d 1251 (9th Cir. 2020), the panel filed an amended order granting the government’s motion to reinstate portions of April 7, 2020, opinion, to the following extent:   The panel reversed the district court’s judgment on Counts Four (money laundering) and Ten (possession of a firearm in furtherance of a crime of violence). The panel affirmed—for the reasons explained in April 7, 2020, opinion—on all remaining Counts: One, Eight (conspiracy to commit Hobbs Act robbery); Two (Hobbs Act robbery); Three (possession of a firearm in furtherance of a crime of violence); and Nine (attempt to commit Hobbs Act robbery). The panel remanded to the district court for resentencing consistent with United States v. Taylor, 596 U.S. —, 2022 WL 2203334 (June 21, 2022), which held that attempted Hobbs Act robbery does not qualify as a “crime of violence” under 18 U.S.C. Section 924(c)(3)(A) because no element of the offense requires proof that the defendant used, attempted to use, or threatened to use force. View "USA V. MONICO DOMINGUEZ" on Justia Law

by
The Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation have a cross-deputization agreement with the State of Montana under which the Tribes have agreed to commission state police to act as tribal police where there is a gap between their respective criminal jurisdictions. Defendant challenges the validity of the cross-deputization agreement, arguing that the Tribes lack the inherent sovereign authority to enter into a cross-deputization agreement with the State of Montana.   The Ninth Circuit affirmed the district court’s denial of Defendant’s motion to suppress evidence. The panel emphasized that the cross-deputization agreement deputizes state officers to enforce tribal law, not state law, and emphasized that Congress has expressly provided for the Tribes’ authority to enter into such compacts.   Defendant also argued that the Tribes explicitly conditioned the cross-deputization agreement on federal approval, which they did not receive. The panel did not read the agreement’s use of the word “approve” as giving the Bureau of Indian Affairs veto power over the agreement.   The panel wrote that even if the lack of a signature from the BIA representative on the 2003 amendment to the agreement impaired the validity of the amendment, it would not invalidate the trooper’s commissioned status. The panel wrote that the trooper’s failure to carry an identification card was plainly a violation of the agreement.  The panel noted, however, that none of the sovereign parties to the agreement appears to consider the violation sufficiently serious to seek any remedy for it. View "USA V. ERIC FOWLER" on Justia Law

by
Defendant argued that she should be able to withdraw her guilty plea at the sentencing hearing because the district court “rejected” the non-binding sentencing recommendation under Rule 11(c)(1)(B). She asserted that the district court erred by not allowing her to withdraw her guilty plea because it supposedly treated her plea agreement as a binding plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C).   The Ninth Circuit affirmed the criminal judgment. Reviewing for plain error, the panel held that Defendant had no right to withdraw her plea. Explaining that the district court’s use of “reject” in the context of Rule 11(c)(1)(B) plea agreement has no legal effect, the panel wrote that the “rejection” of a recommended sentence under a Rule 11(c)(1)(B) agreement could logically mean only that the court rejected the recommendation itself, and the district court thus did not plainly err in not providing Defendant an opportunity to withdraw her plea. The panel wrote that Defendant was permitted to withdraw her guilty plea before sentencing only if she could show a fair and just reason for requesting the withdrawal and that she has not done so. The panel held that Defendant’s remaining arguments fail. The magistrate judge’s failure to specifically mention a “jury” trial during the plea colloquy, as required by Federal Rule of Criminal Procedure 11(b)(1)(C), did not affect Defendant’s substantial rights. The district court properly considered and explained its reasons for rejecting Defendant’s variance requests. The district court did not abuse its discretion by imposing a 100-month sentence. View "USA V. CYNTHIA MONTOYA" on Justia Law

by
Petitioner petitioned for habeas relief after being in immigration detention for over a year without a bond hearing. During her initial removal proceedings, she was subject to mandatory detention under 8 U.S.C. Section 1226(c) (“Subsection C”) due to a conviction. Thus, she was not statutorily entitled to a bond hearing. However, in Casas Castrillon v. Department of Homeland Security, the Ninth Circuit held that once a noncitizen’s immigration case reaches judicial review, the authority for holding a Subsection C detainee shifts to 8 U.S.C. Section 1226(a) (“Subsection A”), which does entitle a noncitizen to a bond hearing. Accordingly, Petitioner argued she was entitled to a bond hearing.   The Ninth Circuit vacated the district court’s grant of habeas relief and held that a noncitizen of the United States—who initially was subject to mandatory detention under 8 U.S.C. Section 1226(c)—is not entitled to a bond hearing under 8 U.S.C. Section 1226(a) while awaiting a decision from this court on a petition for review.   Here, the panel observed that the Supreme Court’s decision in Jennings does not directly address the question in Casas Castrillon—when, if ever, mandatory detention under Subsection C ends. However, the panel explained that Jennings’s reasoning makes clear that Subsection A and Subsection C apply to discrete categories of noncitizens, and not to different stages of a noncitizen’s legal proceedings. The district court declined to reach Petitioner’s alternative argument that she was entitled to habeas relief as a matter of due process. The panel remanded to the district court to consider this question. View "LEXIS HERNANDEZ AVILEZ V. MERRICK GARLAND, ET AL" on Justia Law

by
Petitioner was convicted of 25 felonies (mostly residential burglaries) committed against multiple victims over a three-month period. The trial court imposed consecutive sentences on all but two of the 25 counts, resulting in an overall sentence of 292 years imprisonment.   The Ninth Circuit affirmed the district court’s denial of habeas relief. Rejecting Petitioner’s constitutional claim, the Arizona Court of Appeals concluded that proportionality should be assessed based on each individual conviction and sentence, not the cumulative effect of consecutive sentences and that none of Petitioner’s individual sentences were disproportionate. Petitioner argued that the Anti-Terrorism and Effective Death Penalty Act’s (AEDPA’s) deferential standard of review does not apply to the Arizona Court of Appeals’ decision because that court did not consider the cumulative impact of his sentence and that he was entitled instead to de novo review on this claim. The panel concluded that the Arizona Court of Appeals made a merits determination and that AEDPA deference applies.   Applying AEDPA deference, the panel noted that there is no clearly established law from the Supreme Court on whether Eighth Amendment sentence proportionality must be analyzed on a cumulative or individual basis when a defendant is sentenced on multiple offenses, and that other than the basic principle of proportionality, the only thing that the Supreme Court has established is that the rule against grossly disproportionate sentences is violated only in the exceedingly rare and extreme case. The panel concluded that it cannot say that the Arizona Court of Appeals’ decision was contrary to, or unreasonably applied, clearly established federal law. View "ATDOM PATSALIS V. DAVID SHINN, ET AL" on Justia Law

by
After the district court denied his motion to suppress, Defendant pled guilty to smuggling ammunition in violation of 18 U.S.C. Section 554(a). Defendant timely appealed the denial of his motion to suppress. This appeal challenges that denial. The Ninth Circuit affirmed the district court’s denial of Defendant’s motion to suppress because of the consistent conclusions of Judge Gould and Judge Bea, which represent a majority of the panel, even though the reasoning of Judge Gould and Judge Bea in their separate concurrences is different.   The Ninth Circuit noted that one exception to the Fourth Amendment’s prohibition of searches and seizures conducted without prior approval by judge or magistrate is a Terry stop, which allows an officer to briefly detain an individual when the officer has a reasonable articulable suspicion that an individual is engaged in a crime, during which stop an officer may also conduct a limited protective frisk if the officer has reason to believe the individual has a weapon. The panel noted that another exception is when an officer has probable cause to arrest an individual. View "USA V. SERGIO GUERRERO" on Justia Law

by
Petitioner raised several ineffective assistance of counsel claims under Strickland v. Washington, 466 U.S. 688 (1984). The Ninth Circuit affirmed and applied AEDPA deference to the state habeas courts’ denial of relief. Taking as true that trial counsel failed to consult with experts at all, the panel held that even assuming that this failure fell below an objective standard of reasonableness, it did not create the necessary prejudice to warrant relief. The panel further held that it was not objectively unreasonable for the state habeas court to conclude that trial counsel's conduct was not constitutionally deficient and that any error that might have occurred did not create sufficient prejudice to call into question the outcome of the case. The panel held that even if trial counsel’s failure to address the respective heights fell below professional standards, a reasonable jurist could conclude that the outcome of the trial would not have been different if trial counsel had done so. View "ORLANDO LOPEZ V. TRENT ALLEN" on Justia Law

Posted in: Criminal Law
by
Petitioner was sentenced to death in 1994 after a state jury convicted him of first-degree murder and several other offenses. He appeals the district court’s denial of his federal habeas corpus petition.   The Ninth Circuit affirmed the district court’s denial of a habeas corpus petition brought by Petitioner, who was sentenced to death in 1994 after a state jury convicted him of first-degree murder and other offenses. The panel affirmed the district court’s denial of Petitioner’s certified claim that the prosecutor’s use of peremptory challenges violated his Fourteenth Amendment right to equal protection pursuant to Batson v. Kentucky, 476 U.S. 79 (1986).   Because the California Supreme Court unreasonably applied Johnson, the panel reviewed de novo Petitioner’s Batson claim to determine whether he raised an inference of racial bias at Step One. The panel noted that trial courts are often well-situated to decide the Step One question without conducting a formal comparative juror analysis, but wrote that when an appellate court must decide whether the trial court that denied a Batson motion should instead have drawn an inference that discrimination occurred, Batson supports the use of comparative juror analysis.   Accordingly, pursuant to Batson’s three-step framework, the panel could not say the California Supreme Court erred by ruling that Petitioner did not make a prima facie showing to shift the burden to the prosecutor to explain the actual motivation for the peremptory challenges. View "JAIME HOYOS V. RONALD DAVIS" on Justia Law

by
Petitioner was accused of sexually abusing two young girls and fled Alaska soon after. The State of Alaska filed an information that same year, but Petitioner was neither apprehended nor charged by indictment until 2004, when an employment background check in Minnesota alerted Alaskan authorities to Petitioner’s whereabouts, leading to his arrest and extradition. Petitioner completed his prison sentence and probation in 2016.   Petitioner challenged the 2009 conviction as a violation of his Sixth Amendment right to a speedy trial because of Alaska’s delay in apprehending and indicting him after he fled. Before he filed this habeas petition, Petitioner was convicted in federal court in Tennessee for failing to register as a sex offender pursuant to its laws.   At issue in this appeal was whether Petitioner was “in custody pursuant to” the Alaska judgment he challenges when he filed his Section 2254 petition; if he wasn’t, the federal court lacks jurisdiction over it. The Ninth Circuit affirmed the district court’s judgment dismissing for lack of subject matter jurisdiction Petitioner’s habeas corpus petition.   The panel explained that Petitioner failed to establish jurisdiction under his restraint-on-liberty theory for reasons similar to the Supreme Court’s rejection of his supervised release theory, that is, because Petitioner does not demonstrate that Tennessee’s sex offender registration laws establish custody “pursuant to” the Alaska judgment. The panel noted that Petitioner in no way argued that he is significantly restrained by the sex offender registration laws of Alaska. View "SEAN WRIGHT V. STATE OF ALASKA" on Justia Law