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

The plain language and legislative history of the Endangered Species Act make clear that permits or other exemptions are affirmative defenses, not elements of the crime itself. The Ninth Circuit affirmed in part and reversed in part the district court's judgment vacating defendant's conviction for taking a grizzly bear in violation of the ESA. The panel held that the lower court erred in its formulation of the elements of the crime, improperly placing the burden of proving the nonexistence of a permit on the Government. Therefore, the panel rejected defendant's argument because he presented no evidence at trial that he possessed a permit. The panel affirmed the lower court rulings that defendant was not entitled to a jury trial. However, because the lower court erred in applying an objective standard to defendant's self-defense claim, the error was not harmless. View "United States v. Charette" on Justia Law

In 2008, the Veras and 13 co-conspirators, were charged with conspiracy to distribute narcotics. The co-conspirators pled guilty. A jury found the Veras guilty and returned a special verdict holding them responsible for at least: 100 grams of heroin, 500 grams of cocaine, and 280 grams of cocaine base. The court sentenced Salvador to 360 months’ and Armando to 210 months’ imprisonment. The Ninth Circuit vacated their sentences. The government’s “key witness,” FBI Special Agent Lavis, had opined about the government’s “primary evidence” against the Veras: over 70 wiretapped phone calls that were played or read before the jury. Aside from one proven sale of heroin, Lavis’ opinions interpreting the wiretapped calls were the only evidence of specific quantities. The court concluded the testimony “did not rest on reliable methods” but on speculation. On remand, the government relied heavily upon the co-conspirators’ plea agreements to establish the quantities of drugs attributable to the brothers. The court found the evidence reliable. The plea agreements, which the government drafted, pointed fingers at the Veras. Citing Federal Rule of Evidence 804(b)(3), (statement-against-interest exception to the hearsay rule), the court concluded that the co-conspirators’ admissions amounted to declarations against interest and sentenced Salvador to 324 months’ and Armando to 168 months’ imprisonment. The Ninth Circuit vacated and remanded. The factual bases in the plea agreements were neither inherently reliable as statements against interest nor corroborated by other information that made their reliability apparent. View "United States v. Vera" on Justia Law

The Ninth Circuit affirmed defendant's conviction for lying to a grand jury. Although the verdict form was clearly erroneous, the error was harmless. In this case, the verdict form indicated that the jury would have to find the defendant not guilty beyond a reasonable doubt. The panel reasoned that the jury instructions taken as a whole, read in conjunction with the verdict form, clearly outlined the burdens of proof and the reasonable doubt standard. View "United States v. Espino" on Justia Law

The Ninth Circuit affirmed defendant's sentence after he was convicted of two counts of possession of child pornography. The panel held that neither of defendant's prior California convictions constitute offenses "relating to" child pornography under 18 U.S.C. 2252(b)(2), which imposes a ten-year mandatory minimum sentence. The panel held that because the terms "child pornography" and "sexually explicit conduct," are explicitly defined in chapter 110, the statutory text favored the narrower reading of "related to." Therefore, the panel did not depart from the usual, elements-based, categorical approach to determine whether defendant's prior state statutes of conviction trigger the federal mandatory minimum provision in 2252(b)(2) for individuals with prior offenses "relating to" child pornography. Under the categorical approach, the panel held that both California Penal Code 311.11 and 311.3 are overbroad compared to the federal statute and indivisible. View "United States v. Reinhart" on Justia Law

The Ninth Circuit denied a petition for panel rehearing and amended its April 6, 2018, opinion granting the petition for review.In the amended opinion, the panel granted the petition for review of the published decision of the Board of Immigration Appeals, Matter of G-G-S-, 26 I. & N. Dec. 339 (BIA 2014), which concluded that petitioner was statutorily ineligible for withholding of removal because he was convicted of a "particularly serious crime" under 8 U.S.C. 1231(b)(3)(B), and vacated and remanded. View "Gomez-Sanchez v. Sessions" on Justia Law

The Ninth Circuit vacated defendant's sentence after he pleaded guilty to assault resulting in serious bodily injury. The panel held that the district court properly applied a sentencing enhancement for a dangerous weapon used during the commission of the offense under USSG 2A2.2(b)(2)(B). In this case, defendant's tennis shoes qualified as dangerous weapons when he used them to kick and stomp the victim’s head. However, the district court erred in applying an enhancement for an assault that was motivated by a payment or offer of money or thing of value under USSG 2A2.2(b)(5). The panel found that no evidence suggesting that defendant had been hired by someone to assault the victim or that he had been paid anything of value. View "United States v. Swallow" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision denying petitioner's application for cancellation of removal. The panel held that petitioner was ineligible for relief because he was convicted of "Assault of a Child in the Third Degree – Criminal Negligence and Substantial Pain – With Sexual Motivation." The court held that petitioner's conviction was a categorical match for sexual abuse of a minor, which was an aggravated felony under 8 U.S.C. 1101(a)(43)(A). The panel reasoned that it was unnecessary to decide whether to look at state law or the line of Supreme Court precedent beginning with Apprendi v. New Jersey, 530 U.S. 466 (2000), to determine what elements were part of the offense that petitioner had been convicted of, because the sexual motivation allegation constituted an element under either approach. View "Quintero-Cisneros v. Sessions" on Justia Law

The Ninth Circuit vacated defendant's sentence for being a felon in possession of a firearm. The panel held that defendant's prior conviction for assault with a deadly weapon under Nevada Revised Statutes 200.471 categorically qualified as a crime of violence under the elements clause of USSG 4B1.2(a) because the statute required proof that the defendant placed the victim in fear of bodily harm and thus necessarily entailed the use or threatened use of violent physical force against the person of another. However, defendant's prior convictions for robbery and coercion did not constitute a "crime of violence" because, under the categorical approach, they were not covered by the Guidelines' definition of the term. Accordingly, the panel remanded for resentencing. View "United States v. Edling" on Justia Law

The Ninth Circuit affirmed the district court's denial of habeas relief where petitioner contended that he was denied his Sixth Amendment right to effective assistance of counsel because his trial attorney held deeply racist beliefs about African Americans in general and him in particular. The panel rejected petitioner's claim in light of Mayfield v. Woodford, 270 F.3d 915 (9th Cir. 2001) (en banc), where petitioner conceded that he was unaware of his attorney's racism until years after his conviction was final and failed to identify any acts or omissions by his attorney that fell below an objective standard of reasonableness. View "Ellis v. Harrison" on Justia Law

The Ninth Circuit certified three questions of criminal law to the Nevada Supreme Court: 1. Is Nev. Rev. Stat 453.337 divisible as to the controlled substance requirement? 2. Does the decision in Sheriff v. Luqman, 697 P.2d 107 (Nev. 1985), conclude that the existence of a controlled substance is a "fact" rather than an "element" of section 453.337, rendering the statute indivisible? If so, can this conclusion be reconciled with Muller v. Sheriff, 572 P.2d 1245 (Nev. 1977)? 3. Does the decision in Muller conclude that offenses under section 453.337 comprise "distinct offenses requiring separate and different proof," rendering the statute divisible as to the controlled substance requirement? If so, can this be reconciled with Luqman? View "United States v. Figueroa-Beltran" on Justia Law