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

The Ninth Circuit voted to rehear this case en banc to consider what the proper remedy is on appeal when it concludes that a district court has erred under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), by admitting or excluding expert testimony on one ground, but when it cannot tell from the record whether the admission or exclusion was nevertheless correct on other grounds.Recognizing that there are different circumstances involved in every case, the en banc court concluded that a bright-line rule requiring a specific remedy is inappropriate. Instead, each panel should fashion a remedy "as may be just under the circumstances." 28 U.S.C. 2106. The en banc court explained that the remedy may include remanding for a new trial or remanding for the district court to first determine admissibility, then requiring a new trial only if that admissibility determination differs from that in the first trial. In this case, the en banc court remanded to the three-judgment panel so that the panel may, in its discretion, determine the appropriate remedy. View "United States v. Bacon" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision affirming the IJ's determination that petitioner was removable for having committed an aggravated felony by violating California Health & Safety Code 11359. The panel held that petitioner's violation of section 11359 constitutes an aggravated felony for purposes of the INA, as decided by Roman-Suaste v. Holder, 766 F.3d 1035 (9th Cir. 2014).The panel joined the Second, Third, and Eleventh Circuits in deciding that, when conducting a categorical analysis for removability based upon a state criminal conviction, it is proper to compare drug schedules at the time of the petitioner's underlying criminal offense, not at the time of the petitioner's removal. Because the California and federal definitions of marijuana were identical at the time of petitioner's guilty plea, the panel concluded that his conviction was a categorical match with the generic federal offense. Therefore, petitioner is removable. The panel also affirmed the BIA's decision to deny petitioner's claim for deferral of removal under the CAT. View "Medina-Rodriguez v. Barr" on Justia Law

The Ninth Circuit denied separate petitions for review filed by Velasquez-Rios and Desai, holding that an amendment to section 18.5 of the California Penal Code, which retroactively reduces the maximum misdemeanor sentence to 364 days, cannot be applied retroactively for purposes of removability under 8 U.S.C. 1227(a)(2)(A)(i).The panel rejected petitioners' contention that the BIA erred by relying on McNeill v. United States, 563 U.S. 816 (2011), and United States v. Diaz, 838 F.3d 968 (9th Cir. 2016). In McNeil, the Supreme Court held that retroactive changes to North Carolina's state-law sentencing scheme did not change the historical fact that the defendant had been convicted of two felonies. In Diaz, this court concluded that California's reclassification of Diaz's two felony convictions as misdemeanors did not invalidate his enhanced sentence under 21 U.S.C. 841. Relying upon McNeill, the panel held that the statute called for a backward-looking inquiry to the initial date of conviction, rather than the current state of California law, and that the triggering event under section 841 was when the two felony drug offenses had "become final." The panel rejected petitioners' arguments and further explained that its approach aligns with the Supreme Court's admonishments that federal laws should be construed to achieve national uniformity, and explained that its decision avoids the "absurd" results described in McNeill that would follow from petitioners' approach, under which an alien's removability would depend on the timing of the immigration proceeding. Finally, the panel held that federal law standards cannot be altered or contradicted retroactively by state law actions, and cannot be manipulated after the fact by state laws modifying sentences that at the time of conviction permitted removal or that precluded cancellation. View "Velasquez-Rios v. Barr" on Justia Law

The Ninth Circuit withdrew its opinion filed May 16, 2019, in Case Nos. 17-50337 and 17-50387; withdrew the mandate issued in Case No. 17-50337; and filed a new opinion, after the Supreme Court remanded Case No. 17-50387 for reconsideration in light of Rehaif v. United States, 139 S. Ct. 2191 (2019).Defendant Azano and his co-conspirators sought to influence local politicians during the 2012 San Diego election cycle by providing campaign contributions. Defendants Azano and Singh were convicted of various crimes stemming from the campaign contributions. Azano was also convicted of violating federal firearms law.Although the panel agreed with the Government that there was Rehaif error, the panel held that Azano has not demonstrated that the error seriously affected his substantial rights or the fairness, integrity, or public reputation of his judicial proceedings such that it warrants correction as an exercise of the panel's discretion. In this case, the evidence on the omitted mens rea element—that Azano knew he was "admitted to the United States under a nonimmigrant visa"—was overwhelming and uncontested such that there is no reasonable probability "the jury's verdict would have been different had the jury been properly instructed." However, the panel reversed Azano's and Singh's convictions under count thirty-seven for falsification of campaign records, finding the evidence insufficient to support all material elements. The panel affirmed as to all other convictions, including Azano's conviction for unlawfully possessing a firearm. The panel vacated Azano's and Singh's sentences and remanded for resentencing. View "United States v. Singh" on Justia Law

Plaintiff filed suit against CoreCivil under the Wiretap Act, alleging that CoreCivic unlawfully recorded privileged telephone calls between herself and her clients who were detained in CoreCivic's detention facility in Nevada.The Ninth Circuit held that the only reasonable interpretation based on both the text and context of the Act is that "the violation" refers to each separate interception, whether the interception is a singular event or part of a larger pattern of conduct. Therefore, each interception of plaintiff's privileged telephone calls is a separate violation of the Act, and the statute of limitations is triggered anew for each call that CoreCivic recorded. The panel held that the district court correctly determined that the Act's two-year statute of limitations was first triggered when plaintiff received discovery in June 2016 that contained recordings of her privileged telephone calls. In this case, the undisputed facts establish that plaintiff had such notice of recordings made before June 27, 2016, when she received discovery from the government on that date that included recorded calls. Accordingly, the panel affirmed the district court's holding that plaintiff's claims are untimely to the extent they are based on interceptions that occurred before June 27, 2016. However, to the extent her claims are based on calls that were recorded after this date, the timeliness of such claims depends on when she first had a reasonable opportunity to discover that such calls were recorded. The panel remanded to the district court for further analysis. View "Bliss v. CoreCivic, Inc." on Justia Law

On remand from the Supreme Court, the Ninth Circuit filed an amended opinion affirming defendant's convictions for being a felon in possession of a firearm, and an order denying a petition for panel rehearing and denying on behalf of the court a petition for rehearing en banc.The panel reaffirmed its conclusion that Federal Rule of Criminal Procedure 52(b)'s plain error standard governs here. The panel explained that defendant's argument is best understood not as a challenge to the sufficiency of the evidence, but rather as a claim that the district court applied the wrong legal standard in assessing his guilt—specifically, by omitting the knowledge-of-status element now required under Rehaif v. United States, 139 S. Ct. 2191 (2019), which was issued after the panel issued its original opinion in this case. Here, the government conceded that the first two prongs of plain error are met: the district court erred by not requiring the government to prove defendant's knowledge of his status as a convicted felon, and the error is clear following Rehaif. The panel also assumed without deciding that the error affected defendant's substantial rights.The panel stated that it is appropriate in this case to review the entire record on appeal—not just the record adduced at trial—in assessing whether defendants have satisfied the fourth prong of plain error review. Given the overwhelming and uncontroverted nature of the evidence, defendant cannot show that refusing to correct the district court's error would result in a miscarriage of justice. View "United States v. Johnson" on Justia Law

Alhaggagi spent his childhood going back and forth between Yemen and California. Alhaggagi began chatting online, both in Sunni groups sympathetic to ISIS and anti-ISIS Shia groups, trolling users, and attempting to start fights. In 2016, he expressed interest in purchasing weapons and referred to plans to detonate bombs, set fires, and lace cocaine with strychnine for Halloween distribution. In Alhaggagi’s view, this was “pure bullshit.” His “chat persona” allegedly could get weapons from Mexican cartels. The FBI arranged for Alhaggagi to meet an undercover agent, who was allegedly interested in a suicide mission. Alhaggagi met with the agent several times. After a meeting at a location where the FBI had left barrels of mock explosives, Alhaggagi expressed excitement about the plan but distanced himself from the agent, later stating, “I never took it seriously ... until he was ready to make a bomb … which I wanted no part of!”Alhaggagi pleaded guilty to attempting to provide material support to a terrorist organization 18 U.S.C. 2339B(a)(1). The district court concluded his conduct was “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against the government conduct,” and applied U.S.S.G. 3A1.4's sentencing enhancement. The Ninth Circuit vacated the 188-month sentence. Section 3A1.4 does not automatically apply to all material support offenses. The government must prove that the offense committed involved, or was intended to promote, a “federal crime of terrorism.” The district court failed to determine whether Alhaggagi knew how the accounts he opened were to be used, so it could not find that he specifically intended that they be used to coerce or intimidate the government, and did not find sufficient facts to indicate that his opening of social media accounts was intended to retaliate against government conduct. View "United States v. Alhaggagi" on Justia Law

The Ninth Circuit denied the petition for review of the BIA's decision determining that petitioner was ineligible for cancellation of removal under 8 U.S.C. 1229b(b)(1). The panel held that the BIA reasonably concluded that petitioner had been convicted of a crime involving moral turpitude for which a sentence of one year or longer may be imposed based on his conviction for the offense of knowingly sponsoring or exhibiting an animal in a fighting venture under 7 U.S.C. 2156(a)(1). The panel deferred to the BIA's conclusion that, pursuant to the cross-reference in section 1229b(b)(1)(C), an alien is ineligible for cancellation of removal if the alien has been convicted of a crime involving moral turpitude for which a sentence of one year or more may be imposed, regardless of whether the alien meets the immigration prerequisites for inadmissibility or deportability. View "Ortega-Lopez v. Barr" on Justia Law

The conduct proscribed by Oregon's former marijuana delivery statute, Or. Rev. Stat. 475.860 (2011), does not constitute the federal generic crime of "illicit trafficking of a controlled substance," under the Immigration and Nationality Act, 8 U.S.C. 1101(a)(43)(B).The Ninth Circuit held that the Oregon statute criminalizes more conduct—namely, solicitation—than does the federal generic crime. The panel concluded that "illicit trafficking" does not include solicitation offenses and thus Oregon's former crime of marijuana delivery for consideration, Or. Rev. Stat. 475.860(2)(a), does not qualify as an aggravated felony under section 1101(a)(43)(B). In this case, the BIA erred in relying on Rendon v. Mukasey, 520 F.3d 967 (9th Cir. 2008), especially given the panel's earlier precedent establishing that solicitation offenses do not fall under the controlled substance ground for deportation under section 1227(a)(2)(B)(i). Therefore, the panel granted the petition for review and remanded for further proceedings. View "Cortes-Maldonado v. Barr" on Justia Law

The Ninth Circuit affirmed the district court's denial of a petition for writ of error coram nobis brought by petitioner, a lawful permanent resident from Canada, who pleaded guilty to health care fraud and was convicted in 2005. The government seeks to remove petitioner from the United States because his conviction is an aggravated felony.In this case, the panel held that petitioner is not entitled to coram nobis relief because, after learning that the only way he could avoid removal was to challenge his conviction, he waited two years, without a valid reason, before filing his petition for writ of error coram nobis. The panel specifically held that uncertainty or ambiguity in the law is not itself a valid reason to delay seeking coram nobis relief. View "United States v. Kroytor" on Justia Law