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

The Ninth Circuit affirmed the district court's forfeiture order against defendant after she had pleaded guilty to attempted smuggling of ammunition from the United States into Mexico. Although the ammunition was subject to forfeiture, defendant had caused it to be transferred to a third party. The panel held that the district court properly ordered forfeiture of substitute property under 28 U.S.C. 2461(c) and 21 U.S.C. 853(p). In this case, defendant's acts and omissions caused the ammunition to be transferred to a third party and the forfeiture of $1,235 in the form of a money judgment was proper. View "United States v. Valdez" on Justia Law

The Ninth Circuit affirmed the district court's denial of three petitions for habeas relief under 28 U.S.C. 2241 challenging the revocation of good time credits. Petitioner was disciplined under Bureau of Prisons Prohibited Acts Code 203, which prohibits threatening another with bodily harm or any other offense. The panel held that when read reasonably in the context of the prison setting, and limiting the phrase "any other offense" to criminal offenses or violations of BOP rules, Code 203 is sufficiently narrow and clear to protect inmates' First Amendment rights. View "Lane v. Swain" on Justia Law

The Ninth Circuit affirmed the denial of a petition under 21 U.S.C. 853(n) to set aside an order forfeiting $73,000 in cash and denial of petitioner's motion for relief from judgment. The cash was connected to the guilty plea of petitioner's son. Petitioner argued that he was the bailor whose title to the cash was superior to the government's.The panel held that the district court did not clearly err when it found as a factual matter that the cash was drug proceeds. In this case, the money was found in the son's bedroom along with drugs, guns, and pay-owe sheets showing that the son had bought and sold methamphetamine in large amounts. Furthermore, the son signed a forfeiture agreement stating that the money constituted proceeds of narcotics trafficking and also signed a plea agreement incorporating the forfeiture agreement. The panel also held that there was no due process violation in the AUSA's communications with the son. View "United States v. Hernandez-Escobar" on Justia Law

The Ninth Circuit affirmed the district court's denial of three petitions for habeas relief under 28 U.S.C. 2241 arising from proceedings where petitioner was disciplined for sending threatening letters from prison. The panel held that Bureau of Prisons Prohibited Acts Code 203, which prohibits inmates from threatening another with bodily harm or any other offense, addressed legitimate penological concerns in a manner that was sufficiently narrow to satisfy constitutional concerns. The panel also held that the BOP's actions were supported by sufficient evidence. View "Lane v. Salazar" on Justia Law

Retroactivity analysis under Montgomery Ward & Co., Inc. v. FTC, 691 F.2d 1322 (9th Cir. 1982), is only applicable when an agency consciously overrules or otherwise alters its own rule or regulation, or expressly considers and openly departs from a circuit court decision. The Ninth Circuit denied a petition for review of the BIA's decision finding petitioner removable because he committed two crimes involving moral turpitude (CIMT) when he was convicted of felony endangerment under Arizona Revised Statutes 13-1201 and facilitation to commit unlawful possession of marijuana for sale.Applying Montgomery Ward to this case, the panel held that there was no change in law raising retroactivity concerns. Therefore, the BIA did not err by applying Leal I, In re Leal, 26 I. & N. Dec. 20 (B.I.A. 2012), to conclude that Arizona endangerment is a CIMT. Finally, the panel rejected petitioner's claim regarding Leal II, claims under In re Silva-Trevino, 24 I. & N. 687 (A.G. 2008), preclusion claims, and an 8 U.S.C. 1227(a)(2)(A)(ii) claim. View "Olivas-Motta v. Whitaker" on Justia Law

Defendant was convicted as a felon in possession of a destructive device, 18 U.S.C. 922(g)(1) and for possessing an unregistered destructive device, 26 U.S.C. 5861(d). The Ninth Circuit affirmed, rejecting the defendant’s argument that the definition of “destructive device” in 18 U.S.C. 921(a)(4)(C) requires possession of every component necessary to construct a functional weapon, and that he would be entitled to a judgment of acquittal because the government did not introduce any evidence to establish that he possessed the eight C-cell batteries needed for the device in question to operate. Section 921(a)(4)(C) requires only that the defendant possess a combination of parts from which a functional device “may be readily assembled.” The requirement does not categorically exclude situations in which the assembly process entails the acquisition and addition of a new part and the “readily assembled” element can still be met so long as the defendant could acquire the missing part quickly and easily, and so long as the defendant could incorporate the missing part quickly and easily. View "United States v. Kirkland" on Justia Law

In 2013, the Tydingco family traveled from their home in the Commonwealth of the Northern Mariana Islands (CNMI) to China, Lili’s native country. Lili is a legal U.S. permanent resident through her marriage to Frank. In China, X.N.’s father asked them to take 10-year-old X.N., a Chinese national, to attend school. A friend told Lili that it was possible to bring X.N. to the U.S. The CNMI's “parole” program, designed to support its tourism industry, allows Chinese and Russian nationals to enter the CNMI without a visa and stay for up to 45 days. At Saipan immigration control, Lili presented a notarized letter from X.N.’s parents stating that the Tydingcos would be X.N.’s guardians during her studies. The officer told Lili to get the letter stamped at the local police station, but otherwise said nothing about X.N.’s attending school on Saipan. They showed proof that X.N. had a return flight to China on October 28, 2013. The officer stamped X.N.’s passport that X.N. had to leave the CNMI by November 4. The Tydingcos enrolled X.N. in public school. Lili did not apply for a student visa for X.N. because the school never requested one. X.N. left the Tydingcos in February 2015. Lili voluntarily spoke to a DHS agent and signed a written statement, acknowledging that she “had [X.N.]’s passport and saw the I-94 showing she was paroled in until November 2013.” The Ninth Circuit reversed their convictions for harboring an illegal alien, 8 U.S.C. 1324(a)(1)(A)(iii). The instruction defining “harbor” erroneously did not require the jury to find that they intended to violate the law. The instruction defining “reckless disregard” erroneously did not require the jury to find that Lili subjectively drew an inference that the alien was in the U.S. unlawfully and may have affected the outcome. View "United States v. Tydingco" on Justia Law

Dropbox, an internet company providing data storage, submitted a tip to the National Center for Missing and Exploited Children that child-pornography images had been uploaded to a specific account. The FBI linked the Dropbox and email accounts to IP addresses and to a cellphone number. Executing a search warrant, FBI agents seized a desktop computer tower, a loose hard drive, and another hard drive. Each contained videos or images of child pornography and was linked to the Dropbox account, so that all images were accessible from Dropbox on the other devices. Charged with child-pornography possession, 18 U.S.C. 2252(a)(4)(B), the defendant unsuccessfully moved to dismiss a four-count superseding indictment as multiplicitous. Chilaca was convicted on all four countst and was sentenced to four concurrent 66-month terms, a lifetime of supervised release, a special assessment, and $6,000 in restitution. The Ninth Circuit reversed in part and remanded. Section 2254(a)(4)(B) makes it a crime to knowingly possess “1 or more” matters containing any visual depiction of child pornography; simultaneous possession of different matters containing offending images at a single time and place constitutes a single violation. The four counts charging the defendant with possession of child-pornography images on separate media found at the same time and in the same place were multiplicitous and constituted double jeopardy. No new trial is warranted. The panel remanded for resentencing on the remaining count. View "United States v. Chilaca" on Justia Law

The Ninth Circuit amended a previous opinion and voted to deny the petition for panel rehearing.The panel denied the petition for review of the BIA's denial of petitioner's application for cancellation of removal on the ground that she was convicted of a crime involving moral turpitude. The panel held that bribery under 18 U.S.C. 666(a)(2) is categorically a crime involving moral turpitude because it requires proof of a corrupt mind. The panel applied Jordan v. De George, 341 U.S. 223 (1951), and Tseung Chu v. Cornell, 247 F.2d 929 (9th Cir. 1957), and held that the crime involving moral turpitude statute, 8 U.S.C. 1182(a)(2)(A)(i)(I), is not unconstitutionally vague. The panel also held that Jordan and Tseung Chu remain good law in light of the Supreme Court's decisions in Johnson v. United States, 135 S. Ct. 2551 (2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018). View "Martinez-de Ryan v. Whitaker" on Justia Law

Petitioner, a native and citizen of Mexico, sought review of a final order of removal, challenging the BIA's determination that he was convicted of a "particularly serious crime" within the meaning of 8 U.S.C. 1231(b)(3)(B)(ii), which rendered him ineligible for statutory withholding of removal and withholding of removal under the Convention Against Torture (CAT).The Ninth Circuit held that the statutory phrase "particularly serious crime" was not unconstitutionally vague on its face. The panel reasoned that the "particularly serious crime" inquiry requires an imprecise line-drawing exercise, but it was no less certain than the "perfectly constitutional statutes" that the Supreme Court discussed. The panel held that the fatal combination in Johnson v. United States, 135 S. Ct. 2551 (2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018), which applied an uncertain standard to an idealized crime on the context of the categorical approach, was not present in this circumstance, because the particularly serious crime inquiry requires consideration of what a petitioner actually did. View "Melgoza Guerrero v. Whitaker" on Justia Law