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

The Ninth Circuit affirmed defendant's convictions for conspiracy, attempt to possess with intent to distribute heroin or marijuana, and bribery: public official accepting a bribe. Defendant's charges arose from his involvement in a drug smuggling scheme at the prison where he worked as a correctional officer.The panel rejected defendant's contention that the district court erred by admitting testimony from another participant in the smuggling scheme who identified defendant from a Facebook photo. The panel concluded that the district court did not abuse its discretion by admitting the government's identification evidence where the photo was not so suggestive that it rendered the identification unreliable. The panel also rejected defendant's contention that he is entitled to a new trial because the government violated the discovery obligations imposed by Brady v. Maryland, 373 U.S. 83 (1963). Although the panel agreed with defendant that at least some of the withheld evidence regarding another prison guard's alleged malfeasance was exculpatory, the panel concluded that it was not material within the meaning of Brady. Therefore, the district court did not err by denying defendant's motion for a new trial. View "United States v. Bruce" on Justia Law

The Ninth Circuit affirmed the district court's denial of a habeas corpus petition challenging petitioner's Arizona state conviction and death sentence for multiple offenses including two counts of first-degree murder.The panel addressed three certified issues and concluded that (1) even assuming the Antiterrorism and Effective Death Penalty Act (AEDPA) does not bar the panel's review of petitioner's Brady claims, the delay in producing the photos and police reports, and the failure to disclose the Merrill benefits, were not material; (2) the district court did not err in denying him leave to amend his petition to add a claim that his death sentence violates the Eighth and Fourteenth Amendments because amendment would be futile; and (3) petitioner's ineffective assistance of sentencing counsel claim is procedurally defaulted and petitioner failed to show cause under Martinez v. Ryan, 566 U.S. 1 (2012), to excuse the default. Finally, the panel declined to expand the COA. View "Hooper v. Shinn" on Justia Law

Defendant was arrested with nearly a quarter pound of methamphetamine and an inoperable pistol on his person. He was found guilty of simple possession of methamphetamine and pleaded guilty for being a felon-in-possession of a firearm. The district court sentenced defendant to 120-months in prison after applying a four-level sentencing enhancement for possession of a weapon in connection with another felony (simple possession) under USSG 2K2.1(b)(6)(B).After determining that defendant did not waive the issue, the Ninth Circuit held that the district court erred in concluding that defendant's pistol emboldened him to possess methamphetamine where the district court made no findings that defendant's firearm made his drug possession more likely. The panel vacated the 120-month sentence on the felon-in-possession count and remanded for further consideration. The panel also vacated the concurrent 36-month sentence for the possession count because the parties agree that the district court erred in exceeding the maximum applicable sentence. The panel remanded for further proceedings. Finally, the panel explained that nothing in the plain text of Fed. R. Crim. P. 32 requires excluding from a presentence report prior arrests for which there was no conviction. Therefore, the panel concluded that the district court did not abuse its discretion in denying defendant's motion to strike portions of his presentence report. View "United States v. Grimaldo" on Justia Law

The Ninth Circuit affirmed defendant's conviction and sentence for one count of conspiracy to commit bank robbery under 18 U.S.C. 371; five counts of armed bank robbery under 18 U.S.C. 2113(a) and (d); two counts of bank robbery under section 2113(a); and three counts of brandishing a firearm during the bank robberies under 18 U.S.C. 924(c)(1)(A)(ii).The panel held that defendant's assertion of his rights and pretrial motion to dismiss for Speedy Trial Act violations preserved the issue for appeal; the district court made sufficient findings to support its three ends-of-justice continuances under 18 U.S.C. 3161(h)(7); and the delay of 315 days was not prejudicial where each continuance was supported by detailed information and it was reasonable to allow the codefendants and defendant additional time to adequately prepare. The panel rejected defendant's claim that United States v. Davis, 139 S. Ct. 2319 (2019), and Honeycutt v. United States, 137 S. Ct. 1626 (2017), prohibit using section 2113(d) convictions based on a Pinkerton theory of liability as predicates for section 924(c) convictions. Although defendant did not waive this claim, the panel concluded that it need not decide which liability theory the jury used to convict, because defendant's convictions are valid under either.The panel also rejected defendant's claim that his section 924(c) convictions should be vacated because the jury instructions and verdict form for the predicate section 2113(d) convictions only required the jury to find a conspiracy to commit generic bank robbery. The panel concluded that the district court instructions on aiding-and-abetting liability were not plainly erroneous, and defendant's conviction on either a Pinkerton or an aiding-and-abetting theory was amply supported. Finally, the panel concluded that defendant preserved the claim that the indictment failed to allege the necessary elements of armed bank robbery under section 2113(d). The panel explained that although the failure to include the "use of a weapon" element in the verdict form for armed robbery was incorrect, there is no basis for reversal where the district court correctly instructed the jury on the use of a dangerous weapon. View "United States v. Henry" on Justia Law

Defendant appeals the district court's partial denial of his motion to suppress evidence resulting from a search of his vehicle. At issue was whether the insertion of a car key into a lock on the vehicle's door for the sole purpose of aiding the police in ascertaining its ownership or control is a "search" within the meaning of the Fourth Amendment. The Ninth Circuit has previously held that it was not, applying the "reasonable expectation of privacy" test from Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring). See United States v. $109,179 in U.S. Currency, 228 F.3d 1080, 1087–88 (9th Cir. 2000).However, in light of recent Supreme Court authority tying the Fourth Amendment's reach to the law of trespass, the panel must conclude that because "[t]he Government physically occupied private property for the purpose of obtaining information," United States v. Jones, 565 U.S. 400, 404 (2012), it conducted a search within the meaning of the Fourth Amendment. Therefore, a Fourth Amendment search occurs when an officer physically inserts a key into the lock of a vehicle for the purpose of obtaining information, as occurred in this case when an officer inserted the key specifically to learn whether defendant exercised control over the vehicle. On the record before the panel, it is unclear whether the officer had probable cause to believe that the particular vehicle into which he inserted the key was owned or controlled by defendant. The panel remanded for the district court to conduct an evidentiary hearing and to rule on the suppression motion in light of the Jones and Jardines principles.Finally, the panel held that the district court erred in finding that defendant was categorically ineligible for an acceptance-of-responsibility reduction on the ground that defendant did not accept responsibility for the greater offense of possession with intent to distribute. The panel explained that USSG 3E1.1(a) does not require that defendant admit to all the charged offenses. Consequently, in the event the district court upholds the search on remand and reinstates defendant's conviction, the district court shall conduct a resentencing so that it may make a factual finding regarding acceptance of responsibility in the first instance. View "United States v. Dixon" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision dismissing petitioner's appeal of the IJ's finding of removability based on his past drug convictions. Under the Special Agricultural Worker program (SAW), agricultural workers meeting certain qualifications could obtain lawful temporary resident status, after which they were automatically adjusted to lawful permanent residency on a set schedule. Petitioner had obtained lawful permanent resident status through SAW, but it turns out that before he applied for SAW temporary resident status, he had been convicted of two drug offenses that would have rendered him ineligible for admission into the United States.The panel held that, under SAW, an alien who was inadmissible at the time of his adjustment to temporary resident status because of disqualifying convictions may be removed after his automatic adjustment to permanent resident status, despite the Attorney General never having initiated termination proceedings while the alien was a temporary resident. The panel rejected petitioner's argument that SAW's limitations on administrative and judicial review prevent the government from seeking his removal. Finally, the panel concluded that Barton v. Barr, 140 S. Ct. 1442 (2020), provided no support for petitioner's assertion that under provisions unique to SAW, he could only be removed for his drug convictions during the period of his temporary residency. View "Hernandez Flores v. Rosen" on Justia Law

The Ninth Circuit affirmed defendant's conviction for two counts of aggravated identity theft under 18 U.S.C. 1028A. Defendant was the owner and operator of a business that provided therapeutic services, and her convictions stemmed from her fraudulently billing government health care program for speech therapy services provided to children of military families. In this case, defendant's use of the speech pathologist's name and National Provider Identifier number on the claim forms was "during and in relation" to the commission of wire fraud and thus constituted "use" of another's identification under section 1028A. Defendant's other challenges are addressed in a concurrently filed memorandum disposition. View "United States v. Harris" on Justia Law

The Ninth Circuit affirmed the district court's denial of Jermain Hardiman's motions under 28 U.S.C. 2255 and 18 U.S.C. 3582(c)(2). A jury found that Hardiman was responsible for distributing at least 28 grams but less than 280 grams of cocaine base. At sentencing, the district court disagreed and found that Hardiman should be held responsible for more than 280 grams of cocaine base. After Hardiman’s direct appeal became final, the panel held in United States v. Pimentel-Lopez, 859 F.3d 1134 (9th Cir. 2016), that a district court is not entitled to make a drug quantity finding in excess of that found by the jury in its special verdict.The panel held that Pimentel-Lopez announced a "new" rule of criminal procedure which is not retroactive under Teague v. Lane, 489 U.S. 288, 310 (1989). Accordingly, Pimentel-Lopez is inapplicable to Hardiman's section 2255 motion, and the district court did not err by denying the motion. The panel also held that the district court did not err at the section 3582(c)(2) proceeding by failing to revisit its drug quantity finding under Pimentel-Lopez and the Sixth Amendment. The panel explained that Hardiman's arguments about Pimentel-Lopez were not affected by Amendment 782 and therefore are outside the scope of the proceeding authorized by section 3582(c)(2). In this case, Hardiman does not otherwise argue that the district court abused its discretion by denying his section 3582(c)(2) motion based on its assessment of the section 3553(a) factors or the circumstances of his case. View "United States v. Hardiman" on Justia Law

The Ninth Circuit denied applicant's application for federal habeas corpus relief from his 1997 conviction in Hawaii state court for second-degree murder where applicant seeks retroactive relief based on McCoy v. Louisiana, 138 S. Ct. 1500 (2018). The district court construed the motion as an application to file a second or successive (SOS) habeas petition and referred it to the Ninth Circuit.The panel accepted the referral and confirmed that the Rule 60(d) filing is properly construed as an application for authorization to file an SOS habeas petition. The panel held that the application does not make the required prima facie showing pursuant to 28 U.S.C. 2244(b)(2). The panel assumed without deciding that McCoy did indeed create a new rule of constitutional law and that it was previously unavailable to applicant, but found that the application was otherwise deficient. In this case, applicant failed to show that McCoy was made retroactive on collateral review by the Supreme Court and that his proposed petition would rely on McCoy's rule. View "Christian v. Thomas" on Justia Law

The Ninth Circuit denied applicant's request for authorization to file a second or successive motion under 28 U.S.C. 2255 to vacate his 2015 conviction and sentence for being a felon in possession of a firearm, in violation of 18 U.S.C. 922(g)(1) and 924(a)(2), based on Rehaif v. United States, 139 S. Ct. 2191 (2019). Rehaif held that a conviction under section 922(g), which prohibits firearm possession for certain categories of individuals, and section 924(a)(2), which imposes penalties on those who "knowingly violate" section 922(g), requires proof that the defendant "knew he belonged to the relevant category of persons barred from possessing a firearm."The panel held that applicant failed to make a prima facie showing that Rehaif announced a new constitutional rule as required by section 2244(b)(2)(A), (b)(3)(C). The panel explained that in announcing the scope of "knowingly" in section 924(a)(2), Rehaif announced a statutory, rather than a constitutional, rule. View "Tate v. United States" on Justia Law