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

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

Petitioner appealed the district court's denial of his first federal petition for a writ of habeas corpus. The Ninth Circuit affirmed in part, reversed in part, and remanded for an evidentiary hearing on one of petitioner's penalty-phase ineffective assistance of counsel claims.The panel held that petitioner was entitled to equitable tolling for the period from August 29, 1998, to September 17, 1999, and thus reversed the district court's contrary ruling. The panel remanded for further proceedings as to Claims 1(C), 1(D), 1(E), 1(H), 1(I), 1(J), 9, and 14. In regard to two related claims alleging ineffective assistance of trial counsel, the panel held that the district court did not abuse its discretion in denying an evidentiary hearing as to Claim 1(A). However, the district court abused its discretion in denying an evidentiary hearing as to Claim (F). Therefore, the panel remanded for the district court to hold an evidentiary hearing so that it may properly assess whether the evidence of petitioner's childhood abuse and trauma -- in combination with the brain damage evidence that was not on its own sufficient -- gave rise to a reasonable probability that the outcome of petitioner's sentencing hearing would have been different. Finally, the panel affirmed the district court's denial of petitioner's motion for relief under Federal Rule of Civil Procedure 60(b). View "Williams v. Filson" on Justia Law

California Penal Code 288(c)(1), which prohibits lewd or lascivious acts when a victim is a child of 14 or 15 years and the defendant is at least 10 years older than the child, is neither categorically a crime involving moral turpitude nor categorically a "crime of child abuse." The Ninth Circuit explained that because the offense required only sexual intent, and because a good-faith reasonable mistake of age was not a defense, a defendant was not required to have evil or malicious intent. The panel also held that section 288(c)(1) contains a single, indivisible set of elements such that the modified categorical approach did not apply.The panel granted separate petitions for review of the BIA's decision. The panel held that the BIA erred in concluding that Menendez's conviction triggered the stop-time rule and rendered her ineligible for cancellation. In regard to Rodriguez-Castellon's petition, the panel held that section 288(c)(1) was not categorically a crime of child abuse under 8 U.S.C. 1227(a)(2)(E)(1), because it was broader than the generic definition of a crime of child abuse. View "De Jesus Menendez v. Whitaker" on Justia Law

The Ninth Circuit reversed the district court's denial of habeas relief to petitioner, holding that the state trial court's admission of opinion testimony from a law enforcement expert on street gangs, who described for the jury the potential benefits that a street gang might receive when a member commits a robbery by himself, did not deny petitioner a fundamentally fair trial and due process. The panel held that the district court's judgment was not contrary to, or an unreasonable application of, Supreme Court precedent.However, the panel explained that the expert testimony was insufficient to support a ten-year gang enhancement and that the state court's decision was an unreasonable application of Jackson v. Virginia, 443 U.S. 307 (1979). Furthermore, no rational trier of fact could have found this expert testimony by itself sufficient to prove the elements of the 2001 robbery gang enhancement beyond a reasonable doubt. View "Maquiz MacDonald v. Hedgpeth" on Justia Law

The Ninth Circuit vacated defendant's conviction for sex trafficking of a minor or by force, fraud, or coercion, and for transportation of a minor in interstate commerce to engage in prostitution. The panel held that defendant's Sixth Amendment right to confront the witnesses against him was violated when one of the victims was permitted to testify against defendant remotely by two-way video because she was seven months pregnant and unable to travel.The panel held that, criminal defendants have a right to physical, face-to-face confrontation at trial, and that right cannot be compromised by the use of a remote video procedure unless it is necessary to do so and the reliability of the testimony is otherwise assured. In this case, alternatives were available for obtaining the testimony that would preserve defendant's right to physical confrontation. The court remanded for resentencing on the remaining five counts. View "United States v. Carter" on Justia Law

The Ninth Circuit affirmed defendant's convictions for assault on a federal officer, use of a firearm during and in relation to a crime of violence, possession of a firearm by a convicted felon, and possession of a firearm by an illegal alien. However, the court reversed defendant's convictions for attempted robbery of the officer's gun and attempted robbery of the officer's truck, and remanded.The panel held that the district court erred by instructing the jury on the elements of attempted robbery under 18 U.S.C. 2112 by failing to instruct that defendant must have possessed the specific intent to steal. The obvious instructional error affected defendant's substantial rights and seriously undermined the fairness and integrity of the proceedings. However, the district court did not plainly err by failing to instruct that defendant must have formed such intent by the time he used force, not just by the time he tried to take the property in question. The panel rejected defendant's remaining claims of error regarding the jury instructions and defendant's contention that the district abused its discretion by excluding expert testimony he belatedly sought to introduce at trial. View "United States v. Moreno Ornelas" on Justia Law

The Ninth Circuit vacated the district court's dismissal of a 28 U.S.C. 2254 habeas corpus petition asserting that California's second prosecution of petitioner violated the Double Jeopardy Clause. While the petition was pending, the state trial court vacated petitioner's convictions under Brady v. Maryland, 373 U.S. 83 (1963), and the state elected to retry him on the charge of conspiracy to commit murder. The district court dismissed the petition as moot.The panel held that the petition was not moot because it continued to present a live controversy where petitioner remained in custody, continued to claim he was in custody in violation of the Constitution, and continued to present precisely the same legal claim that he presented when his petition was filed. Furthermore, because petitioner's detention was no longer attributable to a state court judgment, proceeding under section 2254 was no longer appropriate, and he was free to seek habeas relief under 28 U.S.C. 2241(a) and (c)(3). On remand, the district court may convert the petition or dismiss it without prejudice. View "Dominguez v. Kernan" on Justia Law

The Ninth Circuit affirmed the district court's denial of defendant's motion to suppress evidence. Defendant conditionally pleaded guilty to receipt of child pornography and moved to suppress evidence including evidence seized pursuant to a Network Investigative Technique (NIT) warrant issued by a magistrate judge.The panel held that, although the NIT warrant violated Federal Rule of Criminal Procedure 41(b) because it authorized a search outside of the issuing magistrate judge's territorial authority, the good faith exception to the exclusionary rule applied to bar suppression of the evidence. The panel reasoned that there was no evidence that the officers executing the NIT warrant acted in bad faith. Furthermore, suppression of the evidence against defendant was unlikely to deter future violations of this specific kind because the conduct at issue was, after a December 2016 amendment, authorized by Rule 41(b)(6). View "United States v. Henderson" on Justia Law