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

The Ninth Circuit withdrew a memorandum disposition filed January 9, 2020; filed a published opinion affirming the district court's denial of petitioner's habeas corpus petition; denied a petition for rehearing; and denied on behalf of the court a petition for rehearing en banc. During petitioner's trial, one of the jurors had a conversation with a neighbor who is a police officer about difficulties the juror was having in the case and the police officer neighbor responded something to the effect that a defendant in a criminal trial would not be there if he had not done something wrong.The panel held that the Nevada Supreme Court's test to evaluate juror misconduct—and the application of it in petitioner's case—is not contrary to, nor does it involve an unreasonable application of, clearly established Federal law. The panel stated that there was no decision of the Supreme Court that precludes the Nevada Supreme Court from requiring petitioner to show a reasonable probability or likelihood that the contact affected the verdict. View "Von Tobel v. Benedetti" on Justia Law

Defendant again appealed his conviction for possession with intent to distribute methamphetamine. In a prior appeal, the Ninth Circuit held that officers from the Salinas Police Department violated the Fourth Amendment when they entered defendant's home without a warrant, ostensibly to determine whether someone inside posed a threat to their safety or required emergency assistance. At issue in this appeal is whether, under the attenuation doctrine, the discovery of the suspicionless search condition after detaining and handcuffing defendant was an intervening circumstance that broke the causal chain between the initial unlawful entry and the discovery of the evidence supporting defendant's conviction in this case and the revocation of supervised release in the underlying case.The panel held that the evidence found in the search was not sufficiently attenuated from the constitutional violation. The panel balanced the three attenuation factors: 1) the temporal proximity between the unconstitutional conduct and the discovery of evidence; 2) the presence of intervening circumstances; and 3) the purpose and flagrancy of the official misconduct. The panel held that whatever role the officers' subjective good faith should play in the attenuation analysis, it is not enough to outweigh the other two factors. Under the totality of the circumstances, the panel concluded that even accepting the district court's finding that the officers acted in good faith, this fact alone is not enough to justify admission of the evidence. Therefore, the district court erred in denying defendant's motion to suppress and the panel reversed defendant's conviction. View "United States v. Garcia" on Justia Law

The Ninth Circuit affirmed defendant's sentence for mail fraud stemming from his involvement in a lucrative unemployment-fraud scheme. The panel held that the evidence supported the district court's finding that the losses exceeded $3.5 million and losses exceeding $3.5 million merit an 18-level enhancement under USSG 2B1.1(b)(1)(J). In this case, although the district court cited the correct sentencing provision, it incorrectly stated that it was imposing a 16-level enhancement. However, despite this misstatement, the panel held that it was not error for the district court to apply the 18-level enhancement. The panel also held that the evidence supports the district court's imposition of a leadership-role enhancement under USSG 3B1.1(b) where defendant was a leader within the unemployment-fraud scheme, and he was properly treated as such at sentencing.Finally, the panel held that state government agencies who suffer losses that are included in the actual loss calculation under USSG 2B1.1(b)(1) are properly counted as victims for purposes of the number-of-victims enhancement in USSG 2B1.1(b)(2)(A)(I). Therefore, the panel held that the district court did not err in applying an enhancement for 10 or more victims because there can be no doubt that EDD suffered losses and because EDD is properly considered a victim under section 2B1.1(b)(2)(A)(i). View "United States v. Herrera" on Justia Law

In 2017, Asuncion was convicted of possession with intent to distribute 50 grams or more of methamphetamine, 21 U.S.C. 841(a) and (b)(1)(A)(viii). His record included three possession convictions in Washington state court in 2000 and 2004 and one distribution conviction in federal court in 2007. Under the federal drug laws, these prior convictions would trigger mandatory minimum sentences if the convictions were for “felony drug offenses,” 21 U.S.C. 802(44) The district court found that all four convictions counted as prior felony drug offenses. The prior federal conviction had resulted in a sentence longer than one year. The prior state convictions had each resulted in sentences of one year or less, but the Washington statute under which Asuncion was convicted set a maximum penalty of five years.The mandatory minimum sentence for defendants who had previously been convicted of two or more felony drug offenses was life in prison, and the district court sentenced Asuncion accordingly. The Ninth Circuit affirmed, agreeing that the state convictions constituted offenses “punishable by imprisonment for a term exceeding one year.” Section 401 of the First Step Act, 21 U.S.C. 841, which scaled back the mandatory minimum penalties for repeat drug offenders—does not apply to defendants who were sentenced before its enactment. View "United States v. Asuncion" on Justia Law

The defendants immigrated to the U.S. from Somalia years ago and lived in Southern California. They were convicted of sending or conspiring to send, $10,900 to Somalia to support a foreign terrorist organization, 18 U.S.C. 2339, and money laundering.The Ninth Circuit affirmed the convictions. The government may have violated the Fourth Amendment and did violate the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. 1861, when it collected the telephony metadata of millions of Americans, including at least one of the defendants, but suppression was not warranted in this case because the metadata collection did not taint the evidence introduced at trial. The court’s review of the classified record confirmed that the metadata did not and was not necessary to support the probable cause showing for the FISA warrant application. The Fourth Amendment requires notice to a criminal defendant when the prosecution intends to enter into evidence or otherwise use or disclose information obtained or derived from surveillance of that defendant conducted pursuant to the government’s foreign intelligence authorities, but in this case, any lack of notice did not prejudice the defendants. Evidentiary rulings challenged by the defendants did not, individually or cumulatively, impermissibly prejudice the defense and sufficient evidence supported the convictions. View "United States v. Moalin" on Justia Law

The Ninth Circuit vacated defendant's convictions and sentence for conspiracy to distribute a controlled substance and eight counts of distribution of a controlled substance, remanding for a new trial. In light of the unique facts of this case, the panel held that the district court erred in dismissing a juror, a former criminal defense lawyer, hours into jury deliberations following a lengthy criminal trial. The panel explained that the district court's determination that the juror harbored "malice toward the judicial process" is not supported and cannot provide the basis for the juror's dismissal. While the district court also cited the juror's alleged refusal to deliberate, based on the record in this case the panel is firmly convinced there was a reasonable possibility that the juror's dismissal stemmed from her views on the strength of the government's prosecution.The panel based its decision on the specific circumstances of this case, which are uncommon. Here, the district court decided to strike the juror after receiving a complaint from other jurors and without clarifying the juror's alleged confusion about a jury instruction that applied to all charges. The district court also removed the juror without giving the original jury any further instructions or allowing it any further opportunity to deliberate. View "United States v. Litwin" on Justia Law

The Ninth Circuit reversed the district court's dismissal of an information charging defendant with illegal reentry in violation of 8 U.S.C. 1326 where defendant was previously removed because of an "aggravated felony" conviction—possession for sale of methamphetamine in violation of California Health & Safety Code 11378. In this case, the district court held an evidentiary hearing, heard the testimony of expert witnesses, and concluded that geometric isomers of methamphetamine do not chemically exist.The panel held that the district court's factual finding that geometric isomers of methamphetamine do not exist, under clear error review, finds overwhelming support in the record. The panel rejected defendant's contention that the California statute is overbroad because of its facial inclusion of "geometrical" isomers of methamphetamine. In light of Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007), and based on the evidentiary record before it, the panel held that there is simply no "realistic probability"—nor even a theoretical one—of defendant facing criminal liability under California law for the possession of geometric isomers of methamphetamine. View "United States v. Rodriguez-Gamboa" on Justia Law

The Ninth Circuit affirmed defendant's convictions and sentence for wire fraud, conspiracy to commit wire fraud, and securities fraud. Defendant, who served as Chief Financial Officer of Autonomy Corporation, a U.K. technology company that Hewlett-Packard acquired in 2011, and others fraudulently inflated revenue through a series of elaborate accounting schemes.The Ninth Circuit held that defendant's wire fraud convictions did not involve an impermissible extraterritorial application of United States law to foreign conduct because the "focus" of the wire fraud statute is the use of the wires in furtherance of a scheme to defraud, and defendant used domestic wires to perpetrate his fraud. The panel also held that there was sufficient evidence to support defendant's conviction for securities fraud because a reasonable jury could conclude that defendant's approval of false and misleading financial information in an HP press release distributed to the investing public reflected a fraudulent scheme "in connection with" U.S. securities. The panel concurrently filed a memorandum disposition holding that the district court did not abuse its discretion in certain evidentiary rulings or err in ordering money forfeiture. View "United States v. Hussain" on Justia Law

The Ninth Circuit reversed the district court's order dismissing an indictment charging defendant with failing to register as a sex offender in violation of the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. 2250(a). The panel rejected defendant's contention that the Double Jeopardy Clause precludes jurisdiction over this appeal, and held that jeopardy did not attach in this case because the district court never heard evidence for the purpose of deciding the issue of guilt or innocence that could subject the defendant to the risk that he would be found guilty.The panel held that, in light of the plain language and purpose behind the statute, a conviction under section 2250(a) does not require that a defendant's interstate travel not be legally compelled. Because the district court erred in holding to the contrary, the panel remanded with instructions to apply the elements of section 2250 as written. View "United States v. Lusby" on Justia Law

The Ninth Circuit held that the BIA reasonably interpreted "perjury," as used in 8 U.S.C. 1101(a)(43)(S), to mean an offense where "an offender make[s] a material false statement knowingly or willfully while under oath or affirmation [or penalty of perjury] where an oath is authorized or required by law." Given this definition, the panel held that perjury under section 118(a) of the California Penal Code is an "aggravated felony" because it is "an offense relating to . . . perjury."Petitioners, in three separate petitions for review, were convicted of perjury under section 118(a) and then suffered adverse immigration consequences on the ground that each had committed an "aggravated felony," namely, an "an offense relating to . . . perjury" under section 1101(a)(43)(S). The panel applied the categorical approach and held that section 118(a) is a categorical match with the BIA's generic definition of perjury, meaning that they cover the same amount of conduct. The panel rejected petitioners' claims to the contrary and held that section 118(a) is an "offense" relating to . . . perjury" under section 1101(a)(43)(S). The panel disposed of the petitions and any remaining arguments in concurrently filed memorandum dispositions. View "Ho Sang Yim v. Barr" on Justia Law