Case Law Update


The following criminal cases of note were decided during the last week:

Federal Law

Ninth Circuit Court of Appeals

United States v. Guzman-Ibarrez: The panel vacated a conviction and sentence for illegal reentry after deportation or removal in violation of 18 U.S.C. § 1326 and remanded for the district court to consider whether the defendant was prejudiced by the deprivation of his due process rights in his removal proceeding. The panel rejected the contention that the defendant’s due process rights were violated because his first degree robbery conviction did not qualify as an “aggravated felony” when his immigration proceedings began in 1995, and therefore the immigration judge (“IJ”) erred in finding him deportable based on that offense. The panel held that the new definition set forth in § 321(a) of the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), making theft offenses aggravated felonies so long as the defendant was sentenced to one year or more in prison, rather than five years or more, applied when the IJ acted in 1999 by entering a removal order. The panel held that the IJ erred when she failed to advise the defendant of the possibility of relief under 8 U.S.C. § 1182(c). The panel explained that § 440(d) of the Antiterrorism and Effective Death Penalty Act was not effective as to proceedings, such as the defendant’s, that had commenced prior to the date of the Act’s enactment. In addition, the provision of IIRIRA that eliminated relief under § 1182(c) did not apply to aliens, like the defendant, whose proceedings had commenced before the enactment of IIRIRA. The panel vacated the defendant’s conviction and sentence and remanded for the district court to consider whether he was prejudiced by the deprivation of his due process rights in his 1999 removal proceeding. The panel stated that if the defendant was not prejudiced, then the district court could reinstate his conviction and sentence. If the defendant was prejudiced, then the district court must dismiss the indictment. The panel held that the IJ did not err or deprive the defendant of due process when she failed to advise him of the possibility of relief under 8 U.S.C. § 1182(h).

Judge Fisher concurred in Parts A and B of the opinion. Dissenting from Part C, he wrote that in addition to informing the defendant about his eligibility for relief under § 1182(c), the IJ should have advised him of his apparent eligibility for § 1182(h) relief.


United States v. Salman: The panel affirmed a conviction by jury trial for conspiracy and securities fraud arising from an insider-trader scheme. The panel held that the defendant did not waive a sufficiency of the evidence issue raised only in a supplemental brief because both parties had an opportunity to brief the issue and to address it at oral argument. The panel held that the evidence was sufficient to support the conviction because it showed that an insider breached his fiduciary duty by disclosing information to a trading relative, and that the defendant knew of that breach at the time he traded on it. The panel declined to hold that under the Second Circuit’s opinion in United States v. Newman, 773 F.3d 438 (2d Cir. 2014), the government also was required to prove that the insider disclosed the information for a personal benefit.


United States v. Bryant: The panel issued an order denying a petition for rehearing en banc on behalf of the court in an appeal from the denial of a motion to dismiss an indictment charging the defendant, an Indian, with domestic assault by a habitual offender, in violation of 8 U.S.C. § 117(a). In its opinion, the panel reversed the district court’s denial of the motion to dismiss the indictment. Applying United States v. Ant, 882 F.2d 1389 (9th Cir. 1989), the panel held that, subject to the narrow exception recognized in case law for statutes that serve merely as enforcement mechanisms for civil disabilities, tribal court convictions may be used in subsequent prosecutions only if the tribal court guarantees a right to counsel that is, at minimum, coextensive with the Sixth Amendment right. Because the defendant’s tribal court domestic abuse convictions would have violated the Sixth Amendment had they been obtained in federal or state court, the panel concluded that it was constitutionally impermissible to use them to establish an element of the offense in a subsequent prosecution under § 117(a).

Concurring in the denial of rehearing en banc, Judge Paez, joined by Judge Pregerson, wrote that the conflict presented was how to apply Nichols v. United States, 511 U.S. 738 (1994), which permits the use of a prior uncounseled misdemeanor conviction to enhance a sentence, so long as the conviction does not violate the Sixth Amendment. Judge Paez explained that the opinion did not apply a bright line reading of Nichols, permitting the use of such convictions as long as they do not violate the Sixth Amendment (which tribal court convictions, by definition, never do), because Nichols is a sentencing case and does not sanction the use of a prior uncounseled misdemeanor conviction to establish an element of a § 117(a) felony prosecution.

Dissenting from the denial of rehearing en banc, Judge Owens, joined by Judges O’Scannlain, Gould, Tallman, Bybee, Callahan, Bea, and M. Smith, wrote that the panel’s opinion allowed serial domestic violence offenders to operate with virtual impunity, created a split with the Eighth and Tenth Circuits, and wrongly invalidated an unquestionably valid misdemeanor conviction.

Dissenting from the denial of rehearing en banc, Judge O’Scannlain, joined by Judges by Gould, Tallman, Bybee, Callahan, Bea, M. Smith, and Owens, wrote that the panel’s opinion and Ant were incorrectly decided because the Indian Civil Rights Act, and not the Sixth Amendment, governs tribal court proceedings. Judge O’Scannlain wrote that the panel’s opinion contravened Nichols and stood in direct conflict with the only two other circuit courts to consider the issue presented.


Maes v. Chavez: The panel affirmed the dismissal as untimely of a habeas corpus petition brought under 28 U.S.C. § 2254. The time during which the petitioner’s state-court habeas petition was pending was not counted against the one year that he had to file his federal petition. The panel held that the petitioner was not entitled to additional tolling for the time during which he could have, but did not, file a further petition for habeas relief in California state court.


United States v. Zepeda: The en banc court affirmed a defendant’s convictions and sentence under the Indian Major Crimes Act, which authorizes federal jurisdiction over certain crimes committed by Indians in Indian country. The en banc court held in order to prove Indian status under the IMCA, the government must prove that the defendant (1) has some quantum of Indian blood and (2) is a member of, or is affiliated with, a federally recognized tribe. The court held further that under the IMCA, a defendant must have been an Indian at the time of the charged conduct, and that, under the second prong, a tribe’s federally recognized status is a question of law to be determined by the trial judge. Overruling United States v. Maggi, 598 F.3d 1073 (9th Cir. 2010), the en banc court held that the federal recognition requirement does not extend to the first prong of the Indian status test. The court held that the evidence at trial was sufficient to support the finding that the defendant was an Indian within the meaning of the IMCA at the time of his crimes. The en banc court held that the defendant’s sentence was not unreasonable because it was mandated by 18 U.S.C. § 924(c), which required the district court to impose consecutive mandatory minimum sentences on the defendant’s convictions for use of a firearm during a crime of violence. The en banc court agreed with the three-judge panel’s reasons for rejecting the defendant’s other arguments, and it adopted those reasons as its own.

Concurring in the judgment, Judge Kozinski, joined by Judge Ikuta, wrote that under the majority’s holding, the IMCA is a criminal statute whose application, in violation of equal protection, turns on whether a defendant is of a particular race. Judge Kozinski wrote that he would instead affirm the conviction either by applying the IMCA to all members of federally recognized tribes irrespective of their race, or by holding, consistent with Maggi, that the jury had sufficient evidence to infer that the defendant’s ancestry was from a federally recognized tribe.

Concurring in the judgment, Judge Ikuta, joined by Judge Kozinski, wrote that the court should not continue to define an Indian by the “degree of Indian blood” because this definition disrespects tribal sovereignty and perpetuates the “sorry history” of this method of establishing race-based distinctions.


United States v. Roach: The panel affirmed a conviction for storing and causing the storage of hazardous waste without a permit in violation of the Resource Conservation and Recovery Act, 42 U.S.C. § 6928(d)(2)(A), in a case in which the defendant argued that the statutory definition of “storage” expressly excludes acts constituting “disposal” of hazardous waste, and that he was guilty of disposal and therefore not of storage. The panel held that even accepting the defendant’s argument based on the technical definitions of “storage” and “disposal,” the defendant was clearly engaged in storing hazardous waste in sealed and intact containers left in his former electroplating facility. The panel therefore did not need to resolve the issue whether, if he had been so charged, the defendant could not have been found guilty of both storage and disposal of containers that were leaking. The panel rejected the defendant’s alternative argument that he could not be guilty of storage because he disposed of all of the containers left in the former facility by “abandoning” them in the building in which they were stored. The panel explained that while the defendant may have abandoned the premises in which the containers were stored, the containers were not abandoned, and he is liable as a principal for “causing the storage of waste” under 18 U.S.C. § 2(b).


United States v. Chan: The panel reversed the district court’s dismissal of a petition for a writ of error coram nobis in a case in which Maureen Elaine Chan sought to withdraw her guilty plea on the ground that defense counsel affirmatively misrepresented the adverse immigration consequences of her conviction. The panel held that United States v. Kwan, 407 F.3d 1005 (9th Cir. 2005) (holding that affirmatively misleading a client regarding the immigration consequences of a conviction could constitute the basis for an ineffective assistance of counsel claim), survives Padilla v. Kentucky, 559 U.S. 356 (2010) (holding that in order to satisfy the Sixth Amendment, defense counsel must inform her client whether his plea carries a risk of deportation), and did not establish a new rule of criminal procedure under Teague v. Lane, 489 U.S. 288 (1989). The panel thus held that Kwan applies retroactively to Ms. Chan’s case, and remanded for the district court to evaluate the merits of the petition in the first instance.

Judge Bybee concurred. He agreed with the majority opinion that Kwan did not create a new rule under Teague. But in his view, the panel should reverse for an independent, more compelling reason: Ms. Chan’s coram nobis petition is on all fours with Kwan, in which this court granted coram nobis relief.

Dissenting, Judge Ikuta wrote that Kwan created a new rule, and cannot be applied retroactively to Ms. Chan’s case, because the result in Kwan was not dictated by precedent existing at the time Ms. Chan’s conviction became final and would not have been apparent to all reasonable jurists.


United States v. Watson: The panel reversed the district court’s denial of Bill Watson’s 2013 motion pursuant to the Innocence Protection Act to order DNA testing of underwear, clothes, and vaginal swabs in a case in which Mr. Watson was convicted in 2006 of knowingly attempting to engage in a sexual act with a person physically unable to communicate unwillingness. The panel held that Mr. Watson satisfied the preconditions that he identify a theory of defense that would establish his actual innocence, and that the identity of the perpetrator was at issue in the trial. The panel held that new DNA tests that make previously useless DNA capable of identification amount to “newly discovered DNA evidence” under the Act, even though the underwear and semen are not, thereby rebutting the presumption of the motion’s untimeliness.


United States v. Ye: Affirming convictions relating to the provision of false information on a passport application in violation of 18 U.S.C. § 1542, the panel held that a violation of § 1542 does not require specific intent. The panel held that a conviction under the first paragraph of § 1542 requires only that, in applying for a passport, the defendant made a statement that the defendant knew to be untrue. The panel therefore rejected the defendant’s arguments about purported flaws in the jury instructions that depend on the notion that specific intent is required by § 1542. The panel held that the defendant’s argument that the government’s failure to call certain translators as witnesses at trial violated her rights under the Confrontation Clause is foreclosed by precedent.


Foley v. Biter: The panel reversed the district court’s order denying Mark Foley’s motion pursuant to Fed. R. Civ. P. 60(b) for relief from the 2004 denial of his habeas corpus petition in a case in which Mr. Foley’s counsel never informed him that the court denied his petition and Mr. Foley only discovered that his petition was denied six years later when he sent a letter to the court inquiring about its status. The panel held (1) that the district court erred by finding that Mr. Foley was not abandoned by his attorney, (2) that the abandonment directly prevented Mr. Foley from timely appealing the denial of his habeas petition, and (3) that the motion for relief was timely because once Mr. Foley learned his petition had been denied, he made reasonable efforts to determine whether relief was available and how to seek such relief. The panel remanded for further proceedings.


Boyer v. Chappell: The panel affirmed the district court’s denial of Richard Delmer Boyer’s habeas corpus petition challenging his two first degree murder convictions and death sentence.

The panel held that the state court did not unreasonably apply clearly established Supreme Court precedent when it determined that federal law did not require the trial court to conduct a live evidentiary hearing to assess the reliability of testimony that the prosecution introduced at the penalty phase in order to prove that Mr. Boyer had committed a prior murder. Regarding Mr. Boyer’s sufficiency of the evidence challenge to the prior murder, in connection with which Mr. Boyer pointed to problems with the eyewitness identification, the panel held that fair minded jurists could disagree on the correctness of the state court’s decision that the evidence that Mr. Boyer committed the murder was sufficient. Regarding Mr. Boyer’s claim that trial counsel deficiently failed to investigate the possibility that Mr. Boyer suffered from organic brain damage at the guilt phase of the trial, the panel held that it was not unreasonable for the state court to conclude that Mr. Boyer’s counsel conducted a thorough investigation into his mental state and that such investigation satisfied the performance prong of Strickland v. Washington. The panel also held that Mr. Boyer failed to demonstrate the requisite prejudice. The panel held that the district court did not err when it denied for largely the same reasons Mr. Boyer’s claim that trial counsel deficiently failed to investigate the possibility that he suffered from organic brain damage at the penalty phase. The panel rejected as foreclosed by precedent Mr. Boyer’s contentions that the California death penalty is unconstitutional by virtue of (1) the statutory scheme’s failure to narrow adequately the class of eligible defendants and (2) prosecutorial discretion. The panel declined to certify two claims relating to the admission of testimony given pursuant to an agreement that the testimony would be consistent with prior statements to the police. Certifying three previously-uncertified claims, the panel held that Mr. Boyer is not entitled to relief on his contentions that the trial court erred when it sua sponte failed to instruct the jury that unconsciousness is a complete defense and failed to define unconsciousness, and that trial counsel provided ineffective assistance for failure to request such instructions.


Rogers v. McDaniel: The panel affirmed the district court’s grant of habeas corpus relief regarding Mark Rogers’s death sentence, affirmed the district court’s denial of Mr. Rogers’s motion for a stay based on competency, expanded Mr. Rogers’s Certificate of Appealability as to several of his guilt-phase claims, vacated the district court’s denials of relief on those claims, and remanded for further proceedings. The panel held that a depravity-of-mind aggravating factor and jury instruction were unconstitutionally vague under clearly established Supreme Court law, and that the error was not harmless. The panel held that the district court did not abuse its discretion in denying Mr. Rogers’s motion to stay proceedings due to his purported incompetency. The panel expanded the COA, vacated the district court’s denials of relief as to guilt-phase claims, and remanded for further proceedings because the district court did not have the benefit of many potentially relevant cases decided while Mr. Rogers’s appeal was pending, including Martinez v. Ryan, 132 S. Ct. 1309 (2012); Dickens v. Ryan, 740 F.3d 1302 (9th Cir. 2014) (en banc); Sossa v. Diaz, 729 F.3d 1225 (9th Cir. 2014); and Rhines v. Weber, 544 U.S. 269 (2005).


United States v. Gonzalez-Corn: The panel affirmed a conviction for illegally reentering the United States after having been deported, in violation of 8 U.S.C. § 1326(a). The panel held that the defendant’s prior conviction under the federal Controlled Substances Act (CSA), for possessing marijuana with the intent to distribute, resulting in a sentence exceeding one year, was for an aggravated felony under the Immigration and Nationality Act (INA). The panel held that because the INA incorporates felony violations of the CSA into its definition of “aggravated felony,” and because the defendant was convicted of a felony violation of the CSA, his conviction qualifies as an aggravated felony on its face. The panel concluded that there is, accordingly, no need to compare the elements of his conviction to the elements of a generic federal offense of possession with intent to distribute marijuana to determine if his conviction was for an aggravated felony, as set forth in Taylor v. United States, 495 U.S. 575 (1990), and Moncrieffe v. Holder, 133 S. Ct. 1678 (2013). The panel explained that in the aggravated felony context, the Taylor approach is intended for cases in which the defendant (or petitioner, in the immigration context) was convicted under a statutory scheme that is not directly incorporated into the INA, such as a conviction under state law. The panel held that the district court did not err when it instructed the jury that it could infer the defendant’s alienage from his prior deportation order in combination with his admissions regarding his alienage.



State Law


Washington State Supreme Court


State v. Z.U.E. In an opinion authored by Justice Johnson and joined by Chief Justice Madsen and Justices Wiggins, Owens, Gonzalez, Stephens, and Yu, the Court affirmed the Division II Court of Appeals’ holding that there was insufficient evidence to support a stop that was based on tips from informants, only one of whom was identified, describing two people with guns. Though it declined to strictly apply the Aguilar-Spinelli factors in this case, leaning more toward a totality of the circumstances approach, the Court nevertheless found that the tips lacked sufficient indicia of reliability and the police officers’ observations were unable to corroborate the presence of criminal activity. Based on this, the officers lacked the well- founded suspicion that Z.U.E. or the other occupants were connected to actual or potential criminal activity necessary to conduct a lawful investigative stop of his vehicle.   In so holding, the Court specifically found that the fact that two callers were in fact identified was not sufficient to establish their reliability when all that was known about them was a name, phone number, and address or location. The Court next found that corroboration of innocuous facts reported by the informants was likewise insufficient to justify the stop. Rejecting the State’s exigency claim, the Court found no evidence that the one female described was violent based on the description given, and the claim she had handed off the gun she was carrying provided too tenuous a connection to any claim of ongoing violence to justify an exigency.


Concurring, Justice Gordon McCloud, joined by Justice Fairhurst, agreed with the majority that under article I, section 7 of the Washington State Constitution, an informant’s tip must bear sufficient indicia of reliability under the totality of the circumstances to support a stop, and that the single, uncorroborated, essentially unidentified informant’s tip about the female in this case lacked reliability under this “totality of the circumstances” test. However, the concurrence disagree with the majority’s description of our “totality of the circumstances” test.   The concurrence argued that in the Navarette decision, relied upon by the majority, the majority-applying the Fourth Amendment to the United States Constitution-gave the “totality of the circumstances” test a very broad reading. However, the concurrence urged clarification that article I, section 7 compels the Court to adopt a standard as protective as the one that the Navarette dissent adopted. The concurrence further disagreed with the majority’s assertion that a court applying the “totality of circumstances” test can consider only the crimes that the arresting officer subjectively suspected, as reasonable suspicion is an objective, not subjective inquiry. The concurrence argued that the majority’s erroneous adoption of a subjective test ties the court’s hands.


Pers. Restraint of Yates: Writing for a unanimous Court, Justice Owens upheld Robert Lee Yates Jr.’s convictions for two counts of aggravated first degree murder and the subsequent death sentence. The court rejected the personal restrain petition filed by Mr. Yates in 2014, seven years after his judgment and sentence became final. The Court reasoned that personal restraint petitions must be filed within one year of a judgment and sentence becoming final, and that Mr. Yates’ petition does not meet any of the statutory exceptions to the one-year filing requirement. Mr. Yates had claimed his counsel was ineffective for failing to object to venue both in the initial trial and post-conviction. The court declined Mr. Yates’ plea to consider this claim under the newly discovered evidence exception to the one year time bar, and further declined to create a new exception to the time bar for post-conviction ineffective assistance of counsel.


State v. Kalebaugh: In an opinion authored by Justice Yu, and joined by Justices Stephens, Owens, Gordon McCloud, Fairhurst, Wiggins, and Johnson, the Court affirmed Mr. Kalebaugh’s conviction for first degree child molestation. The Court found that the trial judge committed error in misstating the meaning of “reasonable doubt” in his preliminary remarks to the jury venire. The Court observed that the trial judge had instructed the jury that a “reasonable doubt” is a doubt for which a reason can be given, rather than the correct jury instruction that a “reasonable doubt” is a doubt for which a reason exists. However, the Court found that the error was harmless beyond a reasonable doubt, as the instruction as read did not lower the State’s burden of proof in this case or affect the outcome of the trial. Further, the Court reasoned, the correct instructions were in fact given at the close of the case, both orally and in writing.


Concurring, Justice Gonzalez, joined by the Chief Justice, agreed that the trial court’s preliminary oral instruction was improper and implicated the constitutional due process requirement that the State prove every element of a crime beyond a reasonable doubt. The Concurrence further agreed that in the context of the instructions as a whole, the oral instruction did not actually lower the State’s burden of proof, and that Mr. Kalebaugh made no plausible showing the oral instruction had any practical and identifiable consequences in his trial.   However, the concurrence argued that the wisest way to dispose of this case would have been to decline to reach the unpreserved error in the first place. The concurrence expressed concern that the majority’s analysis “could be read to eliminate an appellant’s burden to make a plausible showing that an unpreserved error had practical and identifiable consequences in the trial of a case.”


State v. Love: In a unanimous opinion authored by Justice Yu, the Court upheld a long established method of challenging jurors after voir dire, in which counsel exercises for cause challenges orally at the bench and subsequently exercises peremptory challenges silently by exchanging a list of jurors and alternatively striking names from it. The Court found that such a method is consistent with the minimum safeguards of the public trial right. The Court reasoned that the courtroom was open during the entirety of voir dire, that the public could see and hear the challenges as they were posed, and the exchanging of written challenges was not a violation of the right to public trial as long as those challenges were filed in the record. The Court further declined to find that Mr. Love’s absence from the bench during a conference wherein the trial judge and counsel discussed two for-cause challenges violated his right to be present during his trial, noting that he was present in the courtroom during the entirety of voir dire and was able to consult with counsel during this time.



Division II Court of Appeals


State v. Strange: The Court granted Mr. Strange’s motion to publish the June 23, 2015 decision in which the Court affirmed Mr. Strange’s convictions for one count of second degree child molestation and one count of voyeurism. The court found that Mr. Strange’s right to a fair trial by an impartial jury was not violated when jurors were allowed to make comments regarding their own experiences with child molestation during jury venire. The Court observed that none of the jurors expressed opinions that children who claim to be abused never lie about the abuse, and none claimed to be experts in child molestation. The Court further found that Mr. Strange’s trial counsel’s decision to not object to a video of Mr. Strange’s police interview was a legitimate trial tactic and did not render his counsel ineffective. Finally, the Court ruled that Mr. Strange was not entitled to a Petrich instruction because the State relied on only one act of molestation.


State v. Lyle: The Court affirmed the trial court’s imposition of legal financial obligations (LFOs) following Mr. Lyle’s bench trial conviction for failure to register as a sex offender. The Court found that Mr. Lyle had failed to challenge his LFOs at the time of trial and was sentenced after the Blazina ruling which provided notice that the failure to object to LFOs during sentencing waives a related claim of error on appeal, and that he had therefore waived the issue. The Court further found that Mr. Lyle’s claim of ineffective assistance of counsel for counsel’s failure to object to the LFOs also failed because the record did not establish that defense counsel’s failure to object was prejudicial.


Dissenting, Judge Bjorgen argued that the defendant in Blazina had likewise not raised the issue of ability to pay LFOs at sentencing, but that the Supreme Court nonetheless exercised its discretion to address the issue because it found that the pernicious consequences of “broken LFO systems” on indigent defendants demand” that it reach the issue, even though it was not raised in the trial court.  The dissent argued that Mr. Lyle presents with the same set of circumstances, and review should thus be undertaken. The dissent argued that the Supreme Court has concluded that the hazards of our LFO system demand consideration of this same issue, even if not raised below and, as an indigent, Mr. Lyle confronts the same hazards as those confronted by the indigent defendant in Blazina.


State v. Troy: In this partially published opinion, The Court affirmed Mr. Troy’s conviction, finding that the trial court did not abuse its discretion by declining to reappoint counsel after Mr. Troy waived his right to counsel and re-asserted this right only after the State had rested its case. The Court reasoned that the only basis for the request for re-appointment of standby counsel was Mr. Troy’s own inability to technically navigate the legal system, though not because of mental incompetence. Therefore the fact that counsel was not immediately ready to take over Mr. Troy’s case and the court declined to re-appoint counsel was not error.



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