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

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

The Ninth Circuit vacated the district court's order denying defendant's motion seeking discovery on a claim of selective enforcement. Defendant was convicted of conspiracy to distribute cocaine and conspiracy to interfere with commerce by robbery after he was caught in a law enforcement reverse sting operation to rob a fictitious stash house.The panel held that in these stash house reverse-sting cases, claims of selective enforcement are governed by a less rigorous standard than that applied to claims of selective prosecution under United States v. Armstrong, 517 U.S. 456 (1996). The panel held that a defendant need not proffer evidence that similarly-situated individuals of a different race were not investigated or arrested to receive discovery on a selective enforcement claim like the defendant's. Rather, a defendant must have something more than mere speculation to be entitled to discovery, and the district court should use its discretion to allow limited or broad discovery based on the reliability and strength of the defendant's showing. Because the district court applied the wrong legal standard, the panel remanded to the district court to determine in the first instance whether defendant has met his burden. View "United States v. Sellers" on Justia Law

Federal Rule of Civil Procedure 60(d) is subject to the certificate of appealability requirement in 28 U.S.C. 2253(c)(1). The Ninth Circuit denied petitioner's request for a certificate of appealability (COA) to appeal the district court's denial of his motion under Federal Rule of Civil Procedure 60(d)(3). Petitioner alleged that the district attorney who secured his conviction and death sentence made false sworn statements during the federal habeas proceedings, and that these statements were part of a larger scheme involving assignment of inmate informants to cells next to defendants incarcerated in Orange County, California, in hopes of obtaining incriminating admissions. The panel held that, although a COA was required in this case, petitioner was not entitled to one because regardless of how the prosecution obtained the informants' testimony or later explained its tactics to the district court, the evidence itself was not material to petitioner's conviction and sentence. View "Payton v. Davis" on Justia Law

The Ninth Circuit affirmed Defendant Gonzalez, Luviano, and Ayala's convictions and sentences for conspiracy to deprive a visitor to the Los Angeles County Men's Central Jail of his civil rights in violation of 18 U.S.C. 241; violating his civil rights in violation of 18 U.S.C. 242; and falsifying reports to obstruct an investigation in violation of 18 U.S.C. 1519. Gonzalez was a sergeant with the LA County Sheriff's Department and the other two defendants were deputies under his supervision. A jury found defendants guilty of violating the visitor's civil rights and falsifying reports to conceal the wrongdoing.The panel held that there was sufficient evidence to convict Gonzalez and Ayala of conspiracy under section 241 and for the substantive offense of willfully depriving the visitor of his right to be free from the use of excessive force; the evidence was sufficient to convict Ayala and Luviano for falsifying reports under section 1519; defendants' challenge to the district court's denial of their request to dismiss a juror was rejected; there was no plain error in the jury instructions; the government did not commit misconduct during closing argument; and Ayala's challenge to her sentence was rejected. View "United States v. Gonzalez" on Justia Law

The Ninth Circuit vacated defendant's 20 month sentence imposed after revocation of supervised release. In this case, in its order sentencing defendant, the district court relied on the probation officer's confidential sentencing recommendation, which included factual information that had not been disclosed to defendant and to which she had no opportunity to respond before her sentence was imposed.The panel took the opportunity to address the procedure employed by the district court, holding that even if the defendant is given an opportunity to appear and speak before the magistrate judge, the district court must provide the defendant an additional opportunity before the actual sentence is imposed. In this case, defendant's failure to obtain a hearing before the district court by objecting to the magistrate judge's finding and recommendation did not constitute an explicit waiver of her right to be present and allocute at the imposition of her sentence. Therefore, the panel remanded for resentencing. View "United States v. Gray" on Justia Law

Although not all convictions under the Travel Act represent violations related to controlled substances, meaning that the statute is not a categorical match to the removal statute, the Travel Act is divisible in that respect. Petitioner challenged the BIA's finding that he was removable for a controlled substance offense and ineligible for cancellation of removal.The panel denied the petition for review in part and held that petitioner's conviction qualified as a controlled substance offense under the modified categorical approach. The panel held, however, that the BIA's conclusion that petitioner was ineligible for relief under 8 U.S.C. 1229b was not supported by substantial evidence. The panel held that section 1229b states that the relevant time period ends "when the alien is served a notice to appear." In this case, the BIA used the date on which the notice to appear was issued, not the date when it was served on petitioner. Therefore, the panel granted the petition in part and remanded for the BIA to consider petitioner's claim for cancellation of removal. View "Myers v. Sessions" on Justia Law

The Ninth Circuit certified the following questions to the Oregon Supreme Court: 1. Is Oregon first-degree robbery, Or. Rev. Stat. 164.415, divisible? 2. Is Oregon second-degree robbery, id. 164.405, divisible? 3. Put another way, is jury unanimity (or concurrence) required as to a particular theory chosen from the listed subparagraphs of each statute? View "United States v. Lawrence" on Justia Law