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

The Ninth Circuit denied a petition for review of the BIA's decision and held that petitioner's conviction under California Penal Code 288.3(a), for attempting to communicate with a child with the intent to commit lewd or lascivious acts upon that child, was categorically a crime involving moral turpitude that made him removable.The panel explained that not all of section 288.3(a)'s enumerated offenses involve moral turpitude, and thus the statute is not categorically a crime involving moral turpitude. However, the panel held that the statute is divisible; petitioner pleaded guilty to section 288.3(a) with the specific intent of violating section 288; and thus he was properly deemed removable as an alien convicted of a crime involving moral turpitude under 8 U.S.C. 1227(a)(2)(A)(i). The panel also distinguished Menendez v. Whitaker, 908 F.3d 467 (9th Cir. 2018), from petitioner's circumstances in this case. View "Syed v. Barr" on Justia Law

The Ninth Circuit reversed defendant's conviction for illegal reentry into the United States. Defendant argued that the district court committed plain error by failing to comply with Federal Rule of Criminal Procedure 11(b)(2)'s requirements of establishing that the plea was voluntary. In light of the magistrate judge's egregious failure to comply with Rule 11(b)(2), which the panel has previously noted is part of a disturbing "pattern," the panel agreed.In this case, the magistrate judge did not engage in direct inquiries regarding force, threats, or promises, nor did he address competence to enter the plea. Furthermore, the government's bare bones justifications are not enough to establish voluntariness in light of defendant's significant mental challenges and the magistrate judge's complete lack of inquiry into whether the plea was coerced by any threats or promises. The panel explained that defendant showed that there was a reasonable probability that the error may have affected his decision to plead, and that the district court's plain error was sufficiently serious to impinge on the fairness, integrity or public reputation of judicial proceedings. View "United States v. Fuentes-Galvez" on Justia Law

After defendant was indicted on healthcare fraud and money laundering charges, he challenged a pre-trial repatriation order entered by the district court as a violation of his Fifth Amendment privilege against self-incrimination. The order requires defendant to repatriate any proceeds of the fraudulent scheme that he may have transferred to any African bank during a three-year period, up to $7,287,000, despite the indictment alleging that he transferred only $760,000 to two specific banks in Uganda and Kenya.The Ninth Circuit vacated the district court's order, holding that the challenged order compels defendant to incriminate himself by personally identifying, and demonstrating his control over, untold amounts of money located in places the government may not presently know about. The panel also held that the district court failed to apply the proper "foregone conclusion" exception test, relieving the government of its obligation to prove its prior knowledge of the incriminating information that may be implicitly communicated by repatriation. The panel explained that the order allows the government to shirk its responsibility to discover its own evidence, and the government's narrow promise of limited use immunity is insufficient to counterbalance these harms. Accordingly, the panel remanded with instructions to conduct an evidentiary hearing. View "United States v. Oriho" on Justia Law

The Ninth Circuit vacated defendant's conviction for obstruction of justice and interstate travel in aid of extortion. Defendant's conviction stemmed from his involvement in an armed standoff between agents of the BLM and a group of private militia members that rallied behind Nevadan Cliven Bundy. On appeal, defendant argued that the district court violated the Sixth Amendment during his trial when it terminated his right to represent himself and appointed standby counsel to represent him instead.The panel held that defendant's conduct was not sufficiently disruptive to justify termination of his right to self-representation. In this case, defendant was not defiant and did not engage in blatantly outrageous conduct, such as threatening a juror or taunting the district judge. To the contrary, defendant merely asked a question prejudicial to the government. Furthermore, he remained calm and ultimately acquiesced in the district court's decision to revoke his right to self-representation. The panel also held that a violation of a defendant's Sixth Amendment right to self-representation is structural error. Therefore, the panel must vacate the conviction and remand for a new trial. View "United States v. Engel" on Justia Law

Defendant, two of his sons, and sixteen other persons were charged in an indictment with obstructing federal law enforcement officials carrying out lawful court orders. In this case, defendant and hundreds of armed supporters forced federal officials to abandon the BLM's impoundment plan of defendant's cattle for a failure to pay federal grazing fees.The Ninth Circuit affirmed the district court's dismissal with prejudice of the indictment based on violations of Brady v. Maryland, 373 U.S. 83 (1963). The panel held that a district court is imbued with discretion in the supervision of proceedings before it and may dismiss an action when, in its judgment, "the defendant suffers substantial prejudice and where no lesser remedial action is available." The panel held that the withheld evidence -- the surveillance-camera evidence, the FBI 302s Regarding Snipers, the TOC Log, and the Threat Assessments -- substantially prejudiced the defense; the district court's findings of substantial prejudice and flagrant misconduct in relevant part were not clear error; and the district court did not abuse its discretion in dismissing with prejudice. View "United States v. Bundy" on Justia Law

The Ninth Circuit granted a petition for review of the BIA's determination that petitioner's California conviction was "categorically one for an aggravated felony offense relating to obstruction of justice," and dismissal of his appeal. Because the panel in Valenzuela Gallardo I applied the Chevron framework to the BIA's construction of the aggravated felony of an offense relating to obstruction of justice, and the panel does not believe any exceptions to the law of the case doctrine apply here, the panel must proceed to Chevron Step One. The panel explained that both a de novo interpretation of the obstruction of justice provision utilizing traditional tools of statutory interpretation and a Chevron Step One analysis lead to the same conclusion.The panel held that "obstruction of justice" under 8 U.S.C. 1101(a)(43)(S) is unambiguous in requiring an ongoing or pending criminal proceeding, and the Board's most recent interpretation is at odds with that unambiguous meaning. Furthermore, because "obstruction of justice" under section 1101(a)(43)(S) unambiguously requires a nexus to ongoing or pending proceedings, and California Penal Code section 32 does not, petitioner's state criminal conviction is not a categorical match with the aggravated felony offense charged in his Notice to Appear. Therefore, the panel vacated the removal order. View "Valenzuela Gallardo v. Barr" on Justia Law

The Ninth Circuit dismissed an appeal and cross-appeal arising from the magistrate judge's order extending the supervision of the case based on alleged due process violations. This action arose from a class action settlement agreement stemming from California's housing of the plaintiff prisoners in solitary confinement based only upon their gang affiliation. Before the settlement agreement was set to expire, the prisoners moved to extend its duration. A magistrate judge granted the motion on two claims, but denied a third claim, extending the settlement agreement for one year.The panel agreed with the prisoners that it cannot reach the merits of the appeal because the magistrate judge lacked authority to enter a final extension order under 28 U.S.C. 636(c)(1). Because Article III supervision was lacking here, the panel explained that the parties cannot appeal from the extension order under section 636(c)(3). Therefore, the panel cannot reach the merits of the appeal. The panel remanded to the district court to consider construing the magistrate judge's extension order as a report and recommendation. View "Ashker v. Newsom" on Justia Law

Prisoners moved to enforce a civil rights class action settlement agreement stemming from California's housing of the plaintiff prisoners in solitary confinement based only upon their gang affiliation. The prisoners contend that California breached the agreement when it transferred some prisoners from Security Housing to General Population but did not give those prisoners increased out-of-cell time. Furthermore, prisoners contend that California broke the settlement agreement when it limited another inmate group's direct physical contact during yard time.The Ninth Circuit reversed the district court's ruling that California violated the settlement agreement. The panel held that California has complied with Paragraph 25's requirements and agreed with California's contention that Paragraph 25 of the agreement requires inmate transfer from Security Housing to General Population but does not control General Population conditions. The panel also held that California has substantially complied with Paragraph 28's requirements for restricted custody inmates and, given the institution's safety concerns, the limitations are only minor deviations from Paragraph 28's requirements. The panel vacated the district court's remedial orders and remanded for further proceedings. View "Ashker v. Newsom" on Justia Law

Defendant appealed his convictions for possession of a machinegun in violation of 18 U.S.C. 922(o) and possession of an unregistered machinegun in violation of 26 U.S.C. 5861(d).The Ninth Circuit held that a weapon is "designed to shoot" automatically if it has a specific configuration of objective structural features that, in the absence of any minor defect, would give the weapon the capacity to shoot automatically. The panel also held that the challenged phrase is not unconstitutionally vague on its face where it relies on the objective features of the device even when it is combined with the statutory phrase "framer or receiver." The panel further held that defendant's remaining challenges concerning the application of section 5845(b) lacked merit. In this case, there was no plain error in the jury instruction's objective focus on "specific machinegun design features which facilitate automatic fire;" there is no reasonable possibility that the jury here relied on an impermissibly expansive reading of the instruction in convicting defendant; and defendant had fair notice that Exhibit 12 qualified as such a device based on its configuration of objective features. Therefore, the panel rejected defendant's vagueness challenge. Finally, the panel rejected defendant's challenges to his section 5861(d) conviction, but agreed with defendant that his two convictions are improperly multiplicitous. The panel remanded with instructions to vacate one of the two convictions. View "United States v. Kuzma" on Justia Law

The Ninth Circuit denied a petition for review challenging petitioner's removal for committing two crimes involving moral turpitude (CIMT). The panel held that the BIA did not err in concluding that a California Penal Code 646.9(a) criminal stalking conviction qualifies as a CIMT because a section 646.9(a) offense is categorically a CIMT. The panel stated that the BIA's reliance on In re Ajami, 22 I. & N. Dec. 949 (B.I.A. 1999), to determine that a section 646.9(a) criminal stalking conviction constitutes a CIMT is entitled to Skidmore deference, rather than Chevron deference. Pursuant to the panel's review of the statutory text and in light of its CIMT precedents, the panel concluded that section 646.9 does not plainly and specifically criminalize conduct outside the contours of the federal definition of a CIMT.The panel also held that the BIA reasonably concluded that petitioner's two section 646.9(a) counts of conviction did not arise out of a single scheme of criminal misconduct. In this case, Count 1 of the state felony complaint involved petitioner willfully and maliciously following and harassing one person between June 1, 2015 and April 26, 2017. Count 2 involved the same conduct by petitioner against a different person between March 1, 2017 and April 26, 2017. Accordingly, petitioner is removable as charged under 8 U.S.C. 1227(a)(2)(A)(ii). View "Orellana v. Barr" on Justia Law