CJE Wire: Case Law Updates

Citizens for Judicial Excellence publishes CJE Wire: Case Law Updates each month to help keep its members informed about recent court decisions that may impact their law practices. CJE Wire is prepared by CJE member Dena Alo-Colbeck. The Law Offices of Dena Alo-Colbeck focuses on research, brief writing, and trial preparation for criminal defense litigators. To learn more how she may be of assistance in trial preparation, pre-trial motions, or application of any of the following new case law, please contact her at (253) 318-1758 or alocolbecklaw@gmail.com.

CJE Wire: Case Law Updates — 2017 September 8

 


 Washington State Courts


 

Division II Court of Appeals

State v. Martell: The Court affirmed the trial court’s order amending Mr. Martell’s sentence to impose an indeterminate sentence under the sex offender sentencing statutes’ indeterminate sentencing provision, RCW 9.94A.507(1)(b), following his guilty plea conviction for second degree possession of depictions of minors engaged in sexually explicit conduct. The Court disagreed with Mr. Martell’s argument that the sex offender indeterminate sentencing provision requires a prior conviction for an offense involving a pattern of criminal street gang activity. Looking at the legislative history of and revisions to the statute, the Court found that at the time Mr. Martell committed his offense, he would have had to have had a prior sex offense, such as those to which he stipulated, to be considered a persistent offender. Therefore, the Court concluded that the amended sentence was correct. http://www.courts.wa.gov/opinions/pdf/D2%2048890-6-II%20Published%20Opinion.pdf

 


Division III Court of Appeals

State v. Vela: The Court reversed Mr. Duarte Vela’s conviction for second degree murder, finding that the trial court erred in refusing to allow Mr. Duarte Vela to explain to the jury his fear of the victim and the severity of injury feared, specifically by bringing in evidence of prior threats made by the victim and a prior abduction of Mr. Duarte Vela’s sister by the victim. The court found that the trial court’s rulings violated Mr. Duarte Vela’s right under the Sixth Amendment to the United States Constitution to present a defense.

Dissenting, Judge Korsmo argued that the trial court correctly excluded the evidence as to prior threats against Mr. Duarte Vela or abuse of Mr. Duarte Vela’s sister in the past, claiming that neither was relevant to the self-defense charge. The dissent argued that the appellate court improperly substituted its judgment for that of the trial court in determining the admissibility of the evidence. http://www.courts.wa.gov/opinions/pdf/332993_pub.pdf

 


 Federal Law


Ninth Circuit of Appeals

United States v. Mercado Moreno: The panel affirmed the district court’s denial of a motion for reduction of sentence under 18 U.S.C. § 3582(c)(2) in light of retroactive Sentencing Guidelines Amendment 782, which raised from 1.5 to 4.5 kilograms the quantity of actual methamphetamine required to trigger the maximum base offense level. The panel held that a district court in § 3582(c)(2) proceedings may make supplemental findings of drug quantity if they are necessary to determine the defendant’s eligibility for a sentence reduction in light of a retroactive Guidelines amendment, but that in doing so, the district court may not make supplemental findings that are inconsistent with the findings made by the original sentencing court.   The panel held that a district court has broad discretion in how to adjudicate § 3582(c)(2) proceedings, including whether to hold a hearing when making supplemental findings of drug quantity. The panel rejected the defendant’s argument that the district court was required to hold a contested hearing when making its supplemental findings. The panel explained that when the district court does not consider any evidence outside of the record at sentencing, an evidentiary hearing will not always be necessary. The panel rejected the defendant’s contention that the district court was required to hold a hearing pursuant to U.S.S.G. § 6A1.3, which applies only in original sentencing proceedings, not in § 3582(c)(2) proceedings. The panel rejected the defendant’s contention that the sentencing court’s finding that he distributed a total of 4.2 kilograms of methamphetamine was a specific finding of drug quantity that precluded the district court from engaging in any supplemental fact-finding. Because the original sentencing court did not make any findings regarding the amount of manufactured methamphetamine attributable to the defendant, it was necessary for the district court to make those supplemental findings in order to rule on the defendant’s later motion. The panel held that the district court’s conclusion that the defendant was responsible for at least 4.5 kilograms of actual methamphetamine was not clearly erroneous. The panel held that the district court therefore did not err in concluding, without a hearing, that the defendant was ineligible for a sentence reduction under § 3582(c)(2) because Amendment 782 did not lower his applicable guideline range. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/28/15-10545.pdf


Ybarra v. Filson: The panel (1) vacated the district court’s order denying Nevada state prisoner Robert Ybarra’s motion under Fed. R. Civ. P. 60(b) to reopen his habeas corpus proceedings challenging his death sentence based on Atkins v. Virginia, 536 U.S. 304 (2002), and remanded for reconsideration; (2) affirmed the district court’s order denying Mr. Ybarra’s Rule 60(b) motion raising a claim based on Hurst v. Florida, 136 S. Ct. 616 (2016), which invalidated Florida’s capital sentencing scheme; and (3) denied Mr. Ybarra’s application for leave to file a second or successive habeas petition raising a claim based on Hurst.   Mr. Ybarra claims that he is categorically exempt from the death penalty because he is intellectually disabled. The panel held that Mr. Ybarra’s Atkins-based Rule 60(b) motion was not a disguised second or successive habeas petition, and that the district court therefore did not err in concluding that it had jurisdiction to consider it. Reviewing de novo, the panel held that the district court erred in its AEDPA analysis of the Atkins-based motion by overlooking a number of instances where the Nevada Supreme Court contradicted the very clinical guidelines that it purported to apply, which is especially problematic in light of the decision in Bromfield v. Cain, 135 S. Ct. 2269 (2015), and by refusing to consider a doctor’s report concluding that Mr. Ybarra was intellectually disabled, which was part of the record under Cullen v. Pinholster, 563 U.S. 170 (2011). The panel held that the Mr. Ybarra’s Hurst-based Rule 60(b) motion was a disguised and unauthorized second or successive habeas petition, and therefore affirmed the district court’s order denying the motion.   The panel held that Hurst does not apply retroactively, and therefore denied Mr. Ybarra’s properly-filed application for leave to file a second or successive habeas petition in which he argues, based on Hurst, that Nevada’s capital sentencing scheme is unconstitutional.  http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/01/13-17326.pdf


United States v. Torres: The panel affirmed four defendants’ convictions and sentences for racketeering, drug trafficking conspiracy, and related offenses involving the Puente-13 street gang. The panel held that the district court’s jury instruction for determining drug quantities under 21 U.S.C. § 841(b), which required the jury to determine drug quantities that were reasonably foreseeable to each defendant in connection with his criminal activity, was not reversible error, even though the jury was not required to find that the drug quantities related to violations that were part of a jointly undertaken criminal activity. In a separate opinion that states the majority opinion as to this issue, Judge Clifton wrote that the reasoning of United States v. Banuelos, 322 F.3d 700 (9th Cir. 2003), in favor of employing a disjunctive formulation for assigning an individual conspirator’s responsibility for drug quantity, has since been undermined. Judge Clifton wrote that en banc review will ultimately be necessary to sort out the inconsistency in the case law, but that the questions need not be resolved in this case because plain error review applies here, and any error in the jury instructions did not affect the defendants’ substantial rights. The panel held that the district court did not err in denying defendant Abraham Aldana’s request for a multiple conspiracies instruction, where there was no evidence upon which the jury could rationally sustain the defense that he was a member only of separate conspiracies and not of the Puente13 conspiracy. The panel rejected the defendants’ argument that because their state convictions overlap temporally with their convictions in this case, the state convictions cannot be considered “prior” convictions that trigger sentencing enhancements under § 841(b). The panel held that because the jury verdict necessarily determined that the defendants’ conspiracy continued past the dates when their state convictions became final, the district court did not err in relying on the defendants’ prior drug convictions to impose the mandatory minimum penalties under § 841(b). The panel rejected the defendants’ argument that 21 U.S.C. §§ 841(b) and 851 violate the Sixth Amendment as interpreted in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 133 S. Ct. 2151 (2013). The panel explained that by permitting a court to find “the fact of a prior conviction,” the Supreme Court in Apprendi empowered a court to determine that the conviction was prior to the case before the court.

In the portion of her opinion that constitutes a special concurrence in Judge Clifton’s opinion, Judge Ikuta wrote that the panel remains bound by Banuelos, and that the district court therefore did not err in only requiring the jury to determine what quantities of drugs were reasonably foreseeable to each defendant in connection with his criminal activity. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/06/13-50088.pdf


United States v. D.M.: The panel vacated the district court’s order denying the defendant’s motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). The government agreed that the defendant was eligible for a sentence reduction under United States Sentencing Guidelines Amendment 782, which lowered the recommended sentence for drug offenses. The panel held that despite the defendant’s release from federal prison, the appeal was not moot. Agreeing with the Seventh Circuit, the panel held that U.S.S.G. § 1B1.10(b)(2)(B) allows a court to consider a number of departures when calculating a reduction in sentence where the defendant has provided substantial assistance, and the court is not limited to consideration only of the departure attributable to substantial assistance. The panel distinguished United States v. Ornelas, 825 F.3d 548 (9th Cir. 2016), which did not address § 1B1.10(b)(2)(B), an exception to the policy statement otherwise set forth in U.S.S.G. § 1B1.10(a). The panel also concluded, alternatively, that the defendant was entitled to the benefit of the rule of lenity because the Guideline was ambiguous. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/07/16-50243.pdf


United States v. Faagai: The panel affirmed the district court’s order denying the defendant’s motion to suppress contraband seized during a warrantless search of the defendant’s truck. The panel held that under the totality of the circumstances, there was probable cause to believe that contraband would be found in the truck, and that the search was therefore permissible under the automobile exception to the warrant requirement.

Dissenting, Judge Kozinski wrote that the government, whose case rests on four meetings between the defendant and a suspected meth dealer, came nowhere close to meeting the probable cause standard, where officers, who observed most of the meetings and wiretapped the dealer’s phone, never saw a handoff of money or contraband, nor heard an explicit mention of drugs. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/07/15-10621.pdf


Smith v. Williams: The panel reversed the district court’s judgment dismissing as untimely Taniko Smith’s federal habeas corpus petition, and remanded for further proceedings, in a case in which the state trial court entered a Second Amended Judgment reinstating Mr. Smith’s murder and attempted murder convictions after the Nevada Supreme Court reversed the state trial court’s amended judgment overturning and vacating the convictions. The panel held that Mr. Smith’s federal petition challenging his conviction and sentence under the Second Amended Judgment was timely filed. The panel explained that “the judgment” in 28 U.S.C. § 2244(d)(1) can only refer to the state judgment pursuant to which the petitioner is being held, and that the statute of limitations must therefore run from the judgment pursuant to which the petitioner is being held. The panel observed that the Supreme Court reached the same conclusion when determining in Magwood v. Patterson, 561 U.S. 320 (2010), how to decide whether a petition challenging a prisoner’s state conviction is second or successive. The panel wrote that it is of no moment that the Second Amended judgment reinstated counts on which Mr. Smith had originally been convicted rather than adding new counts of conviction. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/08/15-16967.pdf


United States v. Barragan: The panel affirmed Jesus Barragan’s, Pablo Franco’s, Francisco Gutierrez’s, and Hector Fernandez’s convictions for conspiracy in violation of the Racketeering Influenced Corrupt Organizations Act; affirmed Mr. Barragan’s conviction for drug crimes; affirmed Mr. Barragan’s, Mr. Franco’s, and Mr. Fernandez’s sentences; but vacated Mr. Gutierrez’s sentence and remanded for resentencing.

The panel rejected Mr. Gutierrez’s arguments (1) that suppression of wiretap evidence was required because the affidavit supporting the application failed to show necessity, and (2) that a Franks hearing was required because the affidavit contained false information. The panel held that the district court’s failure to try Mr. Fernandez separately from his co-defendants was not manifestly prejudicial to him. The panel held that the district court did not abuse its discretion in allowing a former Mexican Mafia member to testify on direct examination about his past crimes, nor in finding that the probative value of the evidence was not substantially outweighed by any prejudice. The panel found no error arising from the prosecutor’s blaming, in rebuttal, the defense for bringing up the former Mafia member’s violent past. The panel held that the district court did not abuse its discretion in admitting as lay opinion case agents’ testimony about the meaning of code words used by the conspirators.   The panel held that the district court did not abuse its discretion in admitting tapes of conversations between a confidential informant and alleged conspirators. The panel explained that the informant’s statements on the tapes, which were offered only for context and not for their truth, were not hearsay, and their admission did not offend the Confrontation Clause. The panel held that the government presented sufficient evidence of Mr. Fernandez’s participation in the RICO conspiracy to sustain his conviction.   The panel held that the prosecutor’s remarks in closing argument, emphasizing the violent nature of the defendants’ crimes and repeatedly urging the jury to say, “no more,” were improper because they invited the jury to convict for a nonevidentiary reason: to protect the community against future violence. The panel concluded, however, that the remarks did not have a probable effect on the jury’s verdict in light of the entire record. The panel held that the district court did not abuse its discretion in refusing to give Mr. Fernandez’s requested jury instructions (1) that he could not be convicted of conspiring with a government informant; (2) that his mere purchase of drugs did not establish participation in a conspiracy; and (3) that the government prove he was not a victim of extortion. The panel found no plain error in the district court’s failure to give jurors an explanation for their anonymity.

Affirming Mr. Barragan’s sentence, the panel held (1) that a conviction under Calif. Penal Code § 211—which necessarily involves either generic robbery or generic extortion—was categorically a “crime of violence” for purpose of the career offender guideline in effect at the time of his sentencing; and (2) that, after reviewing the judicially noticeable records of Barragan’s prior conviction under California Health and Safety Code § 11379, a divisible statute, the district court properly concluded that the conviction was for selling a controlled substance offense under the career offender guideline.

The government conceded that the district court erred in calculating Mr. Gutierrez’s sentence as a career offender because his conviction in this case was not for a crime of violence or a controlled substance. The panel agreed, vacating Mr. Gutierrez’s sentence and remanding for resentencing on an open record.

The panel held that in finding certain RICO conspiracy predicate acts attributable to each defendant pursuant to U.S.S.G. § 2E1.1, the district court (1) was permitted to attribute to a defendant predicate acts that the jury verdicts did not so attribute and/or of which a defendant was acquitted or not formally charged; and (2) was permitted to find facts relating to the extent of the conspiracy by a preponderance of the evidence. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/09/08/13-50516.pdf


United States v. Ocampo-Estrada: The panel affirmed a conviction for conspiracy to distribute methamphetamine, vacated the sentence, and remanded for resentencing. The panel held that the district court did not abuse its discretion in denying the defendant’s requested theory-of-defense jury instruction on the buyer-seller exception to conspiracy liability. The panel held that California Health & Safety Code § 11378 is a divisible statute that is susceptible to the modified categorical approach. The panel held that using the modified categorical approach, the government failed to demonstrate that the defendant’s § 11378 conviction was based on a guilty plea to a controlled-substance element that is included within the “felony drug offense” definition set forth in 21 U.S.C. § 802(44). The panel therefore concluded that the defendant’s prior conviction does not qualify as a felony drug offense that would enhance his statutory mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A).


United States v. Geozos: The panel reversed the district court’s order denying David P. Geozos’s 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence, imposed in 2007, at which time the district court determined that Mr. Geozos was an armed career criminal under the Armed Career Criminal Act of 1984 (ACCA) and applied the ACCA’s 15-year mandatory minimum. Before United States v. Johnson, 135 S. Ct. 2551 (2015) (holding that an increased sentence under the ACCA’s residual clause violates due process), and Welch v. United States, 136 S. Ct. 1257 (2016) (holding that Johnson’s rule of constitutional law applies retroactively to cases on collateral review), Mr. Geozos brought an unsuccessful § 2255 motion. He brought a second § 2255 motion, authorized by this court, following the Supreme Court’s decision in Johnson. The panel held that, when, as here, it is unclear whether a sentencing court relied on the residual clause in finding that a defendant qualified as an armed career criminal, but it may have, the defendant’s § 2255 motion “relies on” the new constitutional rule announced in Johnson, and is not subject to the bar on second or successive § 2255 motions. In determining whether the Johnson error is harmless – i.e., whether there are three convictions that support an ACCA enhancement under one of the ACCA clauses that survived Johnson – the panel looked to the substantive law concerning the ACCA’s force clause as it currently stands, not the law as it was at the time of sentencing. Applying the categorical approach, the panel held that none of Mr. Geozos’s three Florida convictions – robbery, armed robbery, use of a firearm in the commission of a felony – is categorically a “violent felony” under the ACCA’s force clause, so the Johnson error at Mr. Geozos’s sentencing was not harmless. The panel remanded with instructions to vacate Mr. Geozos’s sentence, and to direct that Mr. Geozos, who has been in prison longer than the statutory maximum for a non-ACCA conviction, be released from custody immediately.

 

 

CJE Wire: Case Law Updates — 2017 August 11

 


 Washington State Courts


Washington State Supreme Court

State v. Bigsby: In an en banc decision authored by Justice Gonzalez, the Court held that only the Department of Corrections, not the Court had jurisdiction to sanction Brandon Bigsby for his failure to undergo a chemical dependency evaluation after he was released from jail on community custody as ordered by the trial court. The Court found that the Court did not have statutory authority under RCW 9.94B.040 to sanction Mr. Bigsby for sentence violations committed while he was on community custody under the Department’s supervision for a 2014 crime. The Court discussed the legislative history of the Sentencing Reform Act, and after a deep dive into the issues surrounding both the enactment of the SRA and issues that arose after enactment, declared that the statute applies only to crimes committed prior to July 1, 2000. For crimes after that date, the Court held, the Department has sole jurisdiction to impose sanctions. http://www.courts.wa.gov/opinions/pdf/939870.pdf

 


Division I Court of Appeals

State v. Holcomb: In this partially published opinion, the Court found that the charge of interfering with domestic violence, by the plain terms of the statute, requires the State to specify the actual underlying domestic violence crime for the offense in the Information. The Court found that commission of a specific domestic violence crime is an essential element of the interference crime codified at RCW 9A.36.150.5, and that the crime relied upon must be revealed in the Information. Here, Mr. Holcomb was charged with interfering with domestic violence based on an uncharged 4th degree assault claim, along with a charge of assault in the second degree. However, by excluding the 4th degree assault as the underlying domestic violence offense in the information, Mr. Holcomb was led to believe that the second degree assault was the underlying domestic violence offense, and was taken by surprise when the State, at trial, brought in evidence of the fourth degree assault and added that crime to the jury instruction for the interference charge. The Court found that the information did not reasonably apprise Mr. Holcomb of the actual underlying crime that the State alleged that he committed, and thereby failed to inform him of an essential element of the charged interference crime. http://www.courts.wa.gov/opinions/pdf/752456.PDF

 


 Federal Law


Ninth Circuit of Appeals

United States v. Smith: The panel affirmed the district court’s denial of a motion by two qui tam relators to intervene in a criminal forfeiture action so that they could recover a share of the proceeds. The relators worked for the criminal defendant, a licensed podiatrist who was convicted of health care fraud and against whom the government issued a personal forfeiture money judgment in the estimated amount of fraudulent claims paid by victim insurers. The relators filed a qui tam action against the criminal defendant pursuant to the False Claims Act. The panel held that the relators lack standing to intervene in the criminal forfeiture action, as they had no interest in the property when the criminal acts were committed, and they were not qualifying bonafide purchasers for value. The panel rejected the relators’ contention that the “alternate remedy” provisions of the False Claims Act permit a relator to intervene in a criminal action for the purpose of asserting a right to the proceeds of that action. The panel also rejected the relators’ argument that they have standing to intervene in the criminal action as “partial assignees of the government’s claims” under 21 U.S.C. § 853(n). The panel wrote that the relators’ sole statutory remedy is to commence a civil action. The panel held that the district court did not abuse its discretion in denying an evidentiary hearing or in declining to impose sanctions on the government. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/10/16-10160.pdf


Greenway v. Ryan: The panel affirmed the district court in an Arizona state prisoner’s appeal arising from his habeas corpus petition challenging his 1989 conviction and death sentence for the killing of a mother and daughter. After considering supplemental briefing regarding the impact on this case of McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015) (en banc), the panel held that neither the Arizona Supreme Court nor the trial court applied an impermissible causal-nexus test to exclude mitigating evidence. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/08/14-15309.pdf

 

 

 

CJE Wire: Case Law Updates — 2017 August 4

 


 Washington State Courts


Washington State Supreme Court

Detention of Marcum: In an opinion authored by Justice Madsen, and joined by Chief Justice Fairhurst and Justices Stephens, Johnson, and Wiggins, the Court found that Mr. Marcum was entitled to a full evidentiary hearing on his petition for unconditional release under 71.09 RCW. The Court overturned the Court of Appeals, which had found that the State met its threshold burden at the show cause hearing to establish that Mr. Marcum continued to be a Sexually Violent Predator (SVP). At the show cause hearing, the State had relied solely on their expert’s evaluation, arguing that this was alone sufficient to meet its statutory burden. The State argued that the conclusions reached in the defense evaluation were irrelevant because they pertained changes in Mr. Marcum’s mental condition that had occurred prior to an LRA revocation a few years prior. The Court held that the State has a two-fold burden at a show cause hearing. First, the State must establish that the detainee is still a sexually violent predator and, second, that conditional release to a less restrictive alternative is not appropriate.  Here, the Court found that the State’s evidence showed that Mr. Marcum is still a sexually violent predator, but failed to establish that conditional release to a less restrictive alternative would be inappropriate. Because the State had not met its burden at the show cause hearing, the Court found that Mr. Marcum is entitled to a full evidentiary hearing.

Concurring, Justice Gordon McCloud agreed that Mr. Marcum is entitled to a full hearing on his petition for unconditional release. Justice Gordon McCloud wrote separately because she disagrees with the majority interpretation of the SVP commitment statutes at issue her. The concurrence argued that the majority holding, that Mr. Marcum is entitled to a hearing on unconditional release because the State’s evidence supported conditional release to a less restrictive alternative (LRA) placement “is illogical, conflicts with the statute’s plain language, and avoids the question squarely presented in this case: whether Marcum’s evidence demonstrated the kind of treatment-based change that entitles a petitioner to a hearing on unconditional release.” The concurrence argued that Mr. Marcum’s evidence did demonstrate this type of treatment-based change, and therefore agreed that he is entitled to a hearing on unconditional release. However, the concurrence would go further, and hold that under RCW 71. 09. 090( 4 )(a), “any petitioner is entitled to a full evidentiary hearing on unconditional release if he presents evidence of “change”-as defined in RCW 71.09.090(4)(b)-since the last proceeding at which his SVP status was actually adjudicated and determined.”

Dissenting, Justice Yu, joined by Justices Owens and Gonzalez, argued that though there is no doubt Mr. Marcum made progress in treatment since his initial commitment, he continues to meet the definition of an SVP, and has not shown that he no longer fits the statutory definition of an SVP. Because he petitioned for unconditional release, the dissent argued that probable cause required evidence of such a change, evidence that the trial court did not find. The dissent argued that the majority was conflating the standards and had ordered a full trial for unconditional release “on the sole basis that Mr. Marcum may qualify for conditional release to an LRA.” http://www.courts.wa.gov/opinions/pdf/925011.pdf


State v. McFarland: In an opinion authored by Justice Stephens and joined by Justices Wiggins, Gordon McCloud, Madsen, Owens, and Johnson, held that firearm-related sentences may be run concurrently as an exceptional mitigated sentence, based on the rationale of In re Pers. Restraint of Mulholland, 161 Wn.2d 322, 166 P.3d 677 (2007). The Court concluded that the statutory analysis supporting Mulholland, which involved sentencing for multiple serious violent felonies under subsection (l)(b) of RCW 9.94A.589, “applies equally to sentencing for multiple firearm-related offenses under subsection (1 )( c ).”

Dissenting, Chief Justice Fairhurst disagreed that the trial court had discretion to impose exceptional concurrent sentences on the firearm charges in this case. The dissent argued that the extension of Mulholland to an offender convicted of the crimes of unlawful possession of a firearm and theft of a firearm is improper, as it does not fully consider the plain language of RCW 9 .41.040(6), the intent of the authors of the HT ACI, and the textual distinctions between RCW 9.41.040(6) and RCW 9.94A.589(1)(c), all of which “mandate the imposition of consecutive sentences between these two crimes.”

Dissenting, Justice Yu, joined by Justice Gonzalez, dissented on the basis that the Court should not have reversed a trial court decision on direct appeal because the record contained no evidence that the decision was made in error or that an exceptional sentence would be factually or legally justified. Instead, the dissent would have Ms. McFarland to take the extra step of seeking collateral review with supporting evidence, as is required of every criminal defendant who cannot demonstrate error based on the record presented on direct appeal. To do otherwise, Justice Yu argued, would be unfair to all other defendants who seek similar results and are required to file collateral review instead. http://www.courts.wa.gov/opinions/pdf/929475.pdf


State v. Olsen: In an opinion authored by Justice Owens, and joined by Justices Wiggins, Yu, Stephens, Madsen, and Gonzalez, found that requiring a probationer convicted of DUI to submit to random UAs for controlled substances implicated the probationer’s privacy interests, but did not violate those interests. The Court noted that probationers have a reduced expectation of privacy because they are “persons whom a court has sentenced to confinement but who are serving their time outside the prison walls.” However, “this diminished expectation of privacy is constitutionally permissible only to the extent ‘necessitated by the legitimate demands of the operation of the parole process.” The Court then examined whether a compelling interest, achieved through narrowly tailored means, supported the intrusion into a DUI probationer’s reduced privacy interests. The Court found that the State had a compelling interest in supervising a probationer to ensure progress toward rehabilitation and compliance with probation conditions, in this case a requirement that Ms. Olson refrain from drug and alcohol consumption, as well as to protect the public from potentially impaired drivers. The Court further found that the random UAs were a narrowly tailored means of achieving this end.

Dissenting, Chief Justice Fairhurst, joined by Justices Gordon McCloud and Johnson, argued that the collection of urine was a violation of the probationer’s private affairs, and could be justified only when supported by a reasonable suspicion that a probation condition had been violated. The dissent argued that this straightforward application of existing law should control the Court’s decision. The dissent argued that the change in the law “diminishes the promise of privacy enshrined in the Washington Constitution and confuses the standard we use to evaluate probationary searches.” http://www.courts.wa.gov/opinions/pdf/933154.pdf

 


Division I Court of Appeals

Detention of Marcum: In an opinion authored by Justice Madsen, and joined by Chief Justice Fairhurst and Justices Stephens, Johnson, and Wiggins, the Court found that Mr. Marcum was entitled to a full evidentiary hearing on his petition for unconditional release under 71.09 RCW. The Court overturned the Court of Appeals, which had found that the State met its threshold burden at the show cause hearing to establish that Mr. Marcum continued to be a Sexually Violent Predator (SVP). At the show cause hearing, the State had relied solely on their expert’s evaluation, arguing that this was alone sufficient to meet its statutory burden. The State argued that the conclusions reached in the defense evaluation were irrelevant because they pertained changes in Mr. Marcum’s mental condition that had occurred prior to an LRA revocation a few years prior. The Court held that the State has a two-fold burden at a show cause hearing. First, the State must establish that the detainee is still a sexually violent predator and, second, that conditional release to a less restrictive alternative is not appropriate.  Here, the Court found that the State’s evidence showed that Mr. Marcum is still a sexually violent predator, but failed to establish that conditional release to a less restrictive alternative would be inappropriate. Because the State had not met its burden at the show cause hearing, the Court found that Mr. Marcum is entitled to a full evidentiary hearing.

Concurring, Justice Gordon McCloud agreed that Mr. Marcum is entitled to a full hearing on his petition for unconditional release. Justice Gordon McCloud wrote separately because she disagrees with the majority interpretation of the SVP commitment statutes at issue her. The concurrence argued that the majority holding, that Mr. Marcum is entitled to a hearing on unconditional release because the State’s evidence supported conditional release to a less restrictive alternative (LRA) placement “is illogical, conflicts with the statute’s plain language, and avoids the question squarely presented in this case: whether Marcum’s evidence demonstrated the kind of treatment-based change that entitles a petitioner to a hearing on unconditional release.” The concurrence argued that Mr. Marcum’s evidence did demonstrate this type of treatment-based change, and therefore agreed that he is entitled to a hearing on unconditional release. However, the concurrence would go further, and hold that under RCW 71. 09. 090( 4 )(a), “any petitioner is entitled to a full evidentiary hearing on unconditional release if he presents evidence of “change”-as defined in RCW 71.09.090(4)(b)-since the last proceeding at which his SVP status was actually adjudicated and determined.”

Dissenting, Justice Yu, joined by Justices Owens and Gonzalez, argued that though there is no doubt Mr. Marcum made progress in treatment since his initial commitment, he continues to meet the definition of an SVP, and has not shown that he no longer fits the statutory definition of an SVP. Because he petitioned for unconditional release, the dissent argued that probable cause required evidence of such a change, evidence that the trial court did not find. The dissent argued that the majority was conflating the standards and had ordered a full trial for unconditional release “on the sole basis that Mr. Marcum may qualify for conditional release to an LRA.” http://www.courts.wa.gov/opinions/pdf/925011.pdf


State v. McFarland: In an opinion authored by Justice Stephens and joined by Justices Wiggins, Gordon McCloud, Madsen, Owens, and Johnson, held that firearm-related sentences may be run concurrently as an exceptional mitigated sentence, based on the rationale of In re Pers. Restraint of Mulholland, 161 Wn.2d 322, 166 P.3d 677 (2007). The Court concluded that the statutory analysis supporting Mulholland, which involved sentencing for multiple serious violent felonies under subsection (l)(b) of RCW 9.94A.589, “applies equally to sentencing for multiple firearm-related offenses under subsection (1 )( c ).”

Dissenting, Chief Justice Fairhurst disagreed that the trial court had discretion to impose exceptional concurrent sentences on the firearm charges in this case. The dissent argued that the extension of Mulholland to an offender convicted of the crimes of unlawful possession of a firearm and theft of a firearm is improper, as it does not fully consider the plain language of RCW 9 .41.040(6), the intent of the authors of the HT ACI, and the textual distinctions between RCW 9.41.040(6) and RCW 9.94A.589(1)(c), all of which “mandate the imposition of consecutive sentences between these two crimes.”

Dissenting, Justice Yu, joined by Justice Gonzalez, dissented on the basis that the Court should not have reversed a trial court decision on direct appeal because the record contained no evidence that the decision was made in error or that an exceptional sentence would be factually or legally justified. Instead, the dissent would have Ms. McFarland to take the extra step of seeking collateral review with supporting evidence, as is required of every criminal defendant who cannot demonstrate error based on the record presented on direct appeal. To do otherwise, Justice Yu argued, would be unfair to all other defendants who seek similar results and are required to file collateral review instead. http://www.courts.wa.gov/opinions/pdf/929475.pdf


State v. Olsen: In an opinion authored by Justice Owens, and joined by Justices Wiggins, Yu, Stephens, Madsen, and Gonzalez, found that requiring a probationer convicted of DUI to submit to random UAs for controlled substances implicated the probationer’s privacy interests, but did not violate those interests. The Court noted that probationers have a reduced expectation of privacy because they are “persons whom a court has sentenced to confinement but who are serving their time outside the prison walls.” However, “this diminished expectation of privacy is constitutionally permissible only to the extent ‘necessitated by the legitimate demands of the operation of the parole process.” The Court then examined whether a compelling interest, achieved through narrowly tailored means, supported the intrusion into a DUI probationer’s reduced privacy interests. The Court found that the State had a compelling interest in supervising a probationer to ensure progress toward rehabilitation and compliance with probation conditions, in this case a requirement that Ms. Olson refrain from drug and alcohol consumption, as well as to protect the public from potentially impaired drivers. The Court further found that the random UAs were a narrowly tailored means of achieving this end.

Dissenting, Chief Justice Fairhurst, joined by Justices Gordon McCloud and Johnson, argued that the collection of urine was a violation of the probationer’s private affairs, and could be justified only when supported by a reasonable suspicion that a probation condition had been violated. The dissent argued that this straightforward application of existing law should control the Court’s decision. The dissent argued that the change in the law “diminishes the promise of privacy enshrined in the Washington Constitution and confuses the standard we use to evaluate probationary searches.” http://www.courts.wa.gov/opinions/pdf/933154.pdf

 


Division III Court of Appeals

State v. Gleim: The Court found that a prosecutor must abide by a plea agreement both at the original sentencing as well as at sentencing under remand. In this case, however, the Court had permitted the trial court to choose between full resentencing and merely adjusting the terms of community custody. The Court found that the prosecutor had not duty to advocate for full resentencing, and in fact may oppose such an action. The Court further found that the prosecutor didn’t breach the plea agreement by advocating for the sentence in the plea agreement, as opposed to simply standing by that proposed sentence. The Court found that the prosecutor did not undermine the sentencing recommendations, and indicated that he would stand by that recommendation. http://www.courts.wa.gov/opinions/pdf/345777_pub.pdf


State v. Jimenez: The Court found that the State, when prosecuting a minor for possession of marijuana, is not required to establish that the marijuana possessed by the minor contained more than .3 percent tetrahydrocannabinol {THC). The Court found that inserting the definition of “marijuana” from RCW 69.50.101, which includes that .3 percent THC threshold, into RCW 69.50.4014 causes the statute to internally clash, as the latter prohibits minors from possessing marijuana regardless of the THC concentration. http://www.courts.wa.gov/opinions/pdf/340694_pub.pdf

 


 Federal Law


Ninth Circuit of Appeals

United States v. Seminole: The panel affirmed the defendant’s convictions for strangling and assaulting his wife, in a case in which the district court compelled the defendant’s wife to testify against him. The panel rejected the defendant’s argument that the Supreme Court in Trammel v. United States, 445 U.S. 40 (1980), effectively overruled the holding in Wyatt v. United States, 362 U.S. 525 (1960), that a court can compel a witness to testify against her spouse when she is the victim of the crime. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/07/31/16-30202.pdf


Clabourne v. Ryan: The panel filed an order denying a petition for panel rehearing and, on behalf of the court, a petition for rehearing en banc in an appeal from the district court’s denial of a 28 U.S.C. § 2254 habeas corpus petition in a death penalty case.

Concurring in the denial of rehearing, Judges Clifton and Ikuta wrote that the panel’s assessment of what the Arizona Supreme Court did in resolving the petitioner’s appeal remained correct.

Dissenting from the denial of rehearing, Judge Berzon wrote that, in light of McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015) (en banc) (holding that the Supreme Court of Arizona applied an unconstitutional causal nexus test for nonstatutory mitigation), the panel was obligated to rehear the case and grant the habeas petition with regard to the penalty phase of trial. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/01/09-99022.pdf


Andrews v. Davis: The panel withdrew an opinion filed August 5, 2015; denied as moot a petition for rehearing and petition for rehearing en banc; and filed a superseding opinion in an appeal and cross-appeal arising from Jesse James Andrews’s conviction and capital sentence for three murders. The panel reversed the district court’s grant of relief on Mr. Andrews’s ineffective-assistance claim that he was prejudiced by his counsel’s failure to investigate and present additional mitigating evidence at the penalty phase of his trial. The panel held that under 28 U.S.C. § 2254(d)(1), the California Supreme Court did not unreasonably apply Supreme Court precedent in concluding that Mr. Andrews was not prejudiced by any deficient performance. The panel dismissed as unripe the sole claim certified by the district court for appeal – that California’s use of its lethal injection protocol to execute Mr. Andrews would violate his Eighth Amendment rights. The panel held that because no new protocol was in place at the time the district court ruled on the claim, the district court erred in entertaining the claim. The panel denied Mr. Andrews’s request to certify for appeal his uncertified claims of unconstitutional delay between sentencing and execution, ineffective assistance of counsel, failure to disclose material exculpatory evidence and false testimony, and destruction of evidence. The panel held that the district court did not abuse its discretion in denying Mr. Andrews’s motion for an evidentiary hearing.

Dissenting in part, Judge Murguia would affirm the district court’s order granting Andrews relief due to ineffective assistance of counsel at the penalty phase of his trial. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/01/09-99012.pdf

 

CJE Wire: Case Law Updates — 2017 July 28

 


 Washington State Courts


Division I Court of Appeals

In Re Pers. Restraint of France: The Court denied Mr. France’s personal restraint petition, disagreeing with his argument that three of the five convictions for felony harassment violated double jeopardy, because those three constituted a single course of conduct threatening the same victim. The Court found that the case relied upon by Mr. France, State v. Vidales Morales, 174 Wn. App. 370, 298 P.3d 791 (2013), was distinguishable, as in that case the same threat was made repeatedly at a particular time and place, rendering the unit of prosecution as one, regardless of the number of times the threat was communicated. Conversely, the Court reasoned, Mr. France made different types of threats to cause bodily harm to each of two victims in different times and places. The Court held that under the facts of this case, the unit of prosecution is each threat, and each threat is a violation of the felony harassment statute. http://www.courts.wa.gov/opinions/pdf/745085.pdf

 


Division II Court of Appeals

State v. Hand: The Court affirmed Mr. Hand’s convictions for first degree escape and unlawful possession of a controlled substance. The Court found that while the fact that Mr. Hand was held in jail for 61 days before being admitted to Western State Hospital for competency evaluation and restoration violated his due process rights, dismissal of his case was not required. The Court relied on former RCW 10.77.068(a)(i)(A), which states that a missed performance target for transfer to a mental health facility for competency restoration does not “create any new entitlement or cause of action related to the timeliness of competency evaluations or admission for inpatient restoration services related to competency to proceed or stand trial, nor can it form the basis for . . . a motion to dismiss criminal charges.” Former RCW 10.77.068(1)(a), (5).

The Court further reasoned that under CrR 8.3(b), Mr. Hand must show that the delay in receiving restorative treatment prejudiced his right to a fair trial, which he did not. The Court further found that dismissal was not required for the due process violation apart from CrR 8.3(b). Finally, the Court found that Mr. Hand’s SAG alleging ineffective assistance of counsel were “too vague to consider.” http://www.courts.wa.gov/opinions/pdf/D2%2048481-1-II%20Published%20Opinion.pdf


State v. Boyer: The Court confirmed the juvenile court’s adjudication of guilt in Mr. Boyer’s trial for second degree reckless burning, as well as his manifest injustice disposition at sentencing. The Court found that substantial evidence supported the Court’s finding of fact 5, which described Mr. Boyer’s actions prior to the fire, through eyewitness testimony. The Court further found that counsel’s failure to raise a corpus delicti challenge did not constitute ineffective assistance. The Court held that the corpus delicti for second degree reckless burning is satisfied by independent proof of two elements. The first being the occurrence of a fire or explosion that placed property in danger of destruction, and the second is proof that the fire or explosion occurred as a result of the actions of someone criminally responsible.   Finally, with regard to the manifest injustice disposition, the Court observed that the issue had already been decided by the Court commissioner and the Court denied Mr. Boyer’s motion to modify the commissioner’s ruling. http://www.courts.wa.gov/opinions/pdf/D2%2048763-2-II%20Published%20Opinion.pdf


In Re: Detention of Taylor-Rose: The Court affirmed Mr. Taylor-Rose’s commitment as an SVP, holding that (1) the trial court did not err in instructing the jury that second degree child

molestation is a crime of sexual violence, (2) the State provided sufficient evidence that Mr. Taylor-Rose was likely to engage in predatory acts of sexual violence if not confined to a secure facility based on expert testimony as well as the testimony of his parole officer, who expressed concerns about his ongoing deviant fantasies, (3) the trial court did not err in instructing the jury to determine Mr. Taylor-Rose’s risk level if released “unconditionally” from detention on the SVP petition, (4) the trial court did not err in declining to expressly include “placement conditions” as evidence the jury could consider in determining whether Mr. Taylor-Rose was likely to engage in predatory acts of sexual violence if not confined to a secure facility, and (5) the trial court did not err by declining to give Mr. Taylor-Rose’s proposed instruction about the State’s ability to bring a new SVP petition based on a recent overt act following his release. http://www.courts.wa.gov/opinions/pdf/D2%2047975-3-II%20Published%20Opinion.pdf

 


 Federal Law


Ninth Circuit of Appeals

United States v. Martinez-Lopez: The en banc court affirmed a sentence in a case taken en banc to revisit the divisibility of California drug statutes in light of recent guidance from the United States Supreme Court. The en banc court held that California Health and Safety Code section 11352, which criminalizes a variety of activities related to certain controlled substances identified by reference to other code provisions, is divisible with regard to both its controlled substance requirement and its actus reus requirement. The en banc court held that the district court therefore properly applied the modified categorical approach, and in doing so, correctly found that the defendant pled guilty to selling cocaine, which qualifies as a drug trafficking offense under the federal sentencing guidelines and subjects him to a 16-level enhancement to his base offense level. The en banc court concluded that the sentence imposed, based on a properly calculated guidelines range, is substantively reasonable.

Concurring in part and dissenting in part, “but frustrated with the whole endeavor,” Judge Bybee wrote that California Health and Safety Code § 11352(a) functions as a new form of “wobbler” statute in regards to the actus reus. He wrote that the “demand for certainty” required by Mathis v. United States, 136 S. Ct. 2243 (2016), to conclude that the statute identifies elements rather than means is not satisfied, and that the sentence enhancement therefore cannot stand.

Judge Berzon, joined by Chief Judge Thomas and Judge Reinhardt except as to Part IV, concurred in part and dissented in part. Judge Berzon dissented as to the majority’s decision on the actus reus component of § 11352(a). After applying all three steps outlined in Mathis, she concluded that it is most likely that the enumerated actions are different means of committing the offense stated in § 11352(a), not alternative elements, but there are some contrary indications. She would certify the question to the California Supreme Court. She concurred with respect to the statute’s controlled substance component, with the caveat that there have been changes in related California legal principles in recent years that may have undermined the assumptions in In re Adams, 536 P.2d 473 (Cal. 1975), as to whether a specific controlled substance is an element that must be proven beyond a reasonable doubt to a jury or admitted by the defendant. Judge Reinhardt, joined by Chief Judge Thomas, dissented, joining Judge Berzon’s opinion except as to Part IV. He would certify to the California Supreme Court the question of the divisibility of the controlled substance provision as well as of the actus reus provision.   http://cdn.ca9.uscourts.gov/datastore/opinions/2017/07/28/14-50014.pdf

CJE Wire: Case Law Updates — 2017 July 21

 


 Washington State Courts


Washington State Supreme Court

State v. Weyand: In a decision authored by Justice Madsen and joined by Chief Justice Fairhurst and Justices Stephens, Owens, Wiggins, Johnson, and Gordon McCloud, the Court overturned Mr. Weyand’s conviction for possession of a controlled substance based on evidence obtained during a Terry stop. The Court found that the facts in this case, that Mr. Weyand was seen entering and exiting a house where past drug activity had been confirmed and looked up and down the street before getting into his car and driving off, did not provide sufficient facts to justify a reasonable suspicion that Mr. Weyand was involved in criminal activity. The Court stressed that in evaluating facts known at the inception of a Terry stop, “it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief that the action taken was appropriate?” The Court found that the officer did not observe current activity in this case that would lead a reasonable observer to believe that criminal activity was taking place. The Court based its decision largely on recent rulings in State v. Fuentes and State v. Sandoz, upholding Fuentes on its facts.

Concurring, Justice Gonzalez, joined by Justice Yu agreed with the reasoning and result in the instant matter, but wrote separately to disagree with the Court’s failure to overturn Fuentes. The concurrence argued that the sole distinguishing fact in Fuentes was that Ms. Fuentes was observed carrying a filled bag into a drug house and leaving with a less full bag shortly thereafter. The concurrence argued that the mere diminished size of the bag, relied upon by the Fuentes majority was insufficient to find individualized suspicion for a traffic stop after officers followed Ms. Fuentes all the way home. http://www.courts.wa.gov/opinions/pdf/933774.pdf


State v. Lile: In an opinion authored by the Chief Justice and joined by Justices Johnson, Wiggins, Gonzalez, Owens, and Yu, the Court affirmed Travis Lee Lile’s convictions for multiple assaults and resisting arrest. On appeal, Mr. Lile argued that the trial court had improperly denying a timely affidavit of prejudice filed in accordance with RCW 4.12.050. Mr. Liles further cited as error the trial court’s exclusion of evidence impeaching victim Christopher Rowles’ purportedly nonviolent nature. The Court found that the trial court, prior to the time the affidavit was filed, had ruled on a motion for continuance, and that this ruling was discretionary in nature, rendering the affidavit untimely. The Court reversed the finding of the Court of Appeals that the ruling was not discretionary, but also not harmless, holding that if prejudice is established it is always, absent extraordinary circumstances, harmful prejudice, and a trial court’s refusal to grant a timely motion for change of judge is reversible error. With regard to the impeachment evidence, the Court found it was reasonable for the trial court to find that the proffered impeachment evidence was only tangentially related to the issue at bar and insufficiently relevant to impeach Mr. Rowles.

Concurring in the result only, Justice Madsen argued that the “distinction between discretionary and nondiscretionary rulings is a false dichotomy.” Instead, the concurrence argued that an affidavit of prejudice should be made “prior to the judge ruling on a matter that indicates how the judge may rule in the case-for that is the type of “discretion” that RCW 4.12.050(1) concerns.” In this case, the trial court’s ruling on an unopposed motion for continuance should not have been seen as discretionary because it did not indicate how he might rule in the case. However, because the trial was ultimately heard by a different judge, the concurrence argued that the error was harmless. The concurrence would further have found that the limitations placed on the cross examination of Mr. Rowles were an abuse of discretion, but argued that this, too, was harmless error.

Concurring, Justice Gordon McCloud, joined by Justice Stephens, agreed that the trial court’s ruling on the continuance was discretionary, thus rendering the affidavit of prejudice untimely. However, the concurrence argued that the impeachment evidence that Mr. Lile sought to bring in against Mr. Rowles was relevant and the trial court’s exclusion of this evidence was a violation of Mr. Lile’s confrontation clause rights. However, the error was harmless. http://www.courts.wa.gov/opinions/pdf/930350.pdf

 


Division I Court of Appeals

State v. Jefferson: The Court upheld Mr. Jefferson’s convictions for attempted first degree murder, first degree assault, and unlawful possession of a firearm. The Court found no error in any of the ten issues Mr. Jefferson raised on appeal, including: (1) the trial court erred in denying his Batson’ challenge after the State used a peremptory challenge to strike the only African American venireperson, (2) the trial court violated the appearance of fairness doctrine, (3) the trial court erred in denying a mistrial for jury misconduct, (4) the trial court erred in admitting gang evidence, (5) the trial court erred in excluding evidence and testimony from one of Jefferson’s witnesses, (6) prosecutorial misconduct, (7) that insufficient evidence supported the convictions, (8) the “to convict” instruction was inadequate, (9) ineffective counsel, and (10) cumulative error. With regard to the Batson challenge, the Court found that the State provided an acceptable race neutral explanation for striking the juror. However, the Court was concerned with the State’s primary argument on appeal, which appeared to be that the appellate court should affirm the trial court because of the fact that “(1) the case was being tried before an African American judge, (2) the prosecutor was African American. . . , (3) the defendant was African American, and (4) the defense attorney was a Caucasian woman.” The Court found that the race makeup of non-jurors in the court room has no bearing on a Batson analysis, as the Court’s focus is on the jurors. The Court similarly found the remainder of Mr. Jefferson’s claimed errors on appeal lacked merit. http://www.courts.wa.gov/opinions/pdf/760114.pdf

 


Division III Court of Appeals

State v. Buttolph: The Court affirmed Tylor Buttolph’s conviction for escape from community custody. The Court found that the trial court did not err in refusing to provide his proffered jury instruction, which equated the willfulness with purpose, instead giving an instruction equating willfulness with knowledge. The Court reasoned that the Washington Criminal Code equated willfulness with knowledge as to the material elements of the offence, and that this definition was in place at the time that the statute under which Mr. Buttolph was charged was enacted. The Court concluded that had the legislature intended a greater mens rea requirement, it would have so stated in the statute. http://www.courts.wa.gov/opinions/pdf/345297_pub.pdf

 


 Federal Law


No Federal opinions of note were decided in the last week.

 

CJE Wire: Case Law Updates — 2017 July 14

 


 Washington State Courts


Washington State Supreme Court

State v. Johnson: In an en banc decision authored by Justice Stephens, the Court held that its decision in State v. Hickman, 135 Wn.2d 97, 954 P.2d 900 (1998), remains good law and was not superseded by the recent SCOTUS decision in Musacchio v. United States, _U.S._, 136 S. Ct. 709, 193 L. Ed. 2d 639 (2016). Under Hickman, the State must establish all elements it agrees to include in a to convict instruction, even if not required by statute. However, in Musacchio, the Supreme Court rejected such a “law of the case” argument and held that due process requires only that evidentiary sufficiency claims “be assessed against the elements of the charged crime, not against the erroneously heightened command in the jury instruction.” 136 S. Ct. at 715. The Court reasoned that the state “law of the case” doctrine “does not rest on federal due process principles,” but has developed through the common law and state procedural rules, and remains intact following Musacchio. The Court found that the State did not demonstrate that its “law of the case” doctrine is incorrect and harmful, or that its legal underpinnings had been eroded. Then, applying the Hickman framework to the instant matter, the Court held that the State was required to prove that Mr. Johnson specifically intended to steal an access device, as alleged in the to-convict instruction in this case. The Court found sufficient evidence supporting the additional element and affirmed the conviction. http://www.courts.wa.gov/opinions/pdf/934533.pdf

 

 


Division I Court of Appeals

In re: Detention of S.E.: In this partially published decision, the Court held that the Washington Constitution does not require a jury to be seated to determine the issues presented in a probable cause hearing commenced pursuant to RCW 71.05.240 for involuntary commitment, whether short or long term. http://www.courts.wa.gov/opinions/pdf/749170.pdf

 

 


 Federal Law


Ninth Circuit Court of Appeals

Alfaro v. Johnson: The panel reversed the district court’s grant of Maria Alfaro’s habeas corpus relief on her claim, based on Jones v. Chappell, 31 F. Supp. 3d (C.D. Cal. 2014), rev’d sub nom., Jones v. Davis, 806 F.3d 538, 541 (9th Cir. 2015), that California’s post-conviction system for administering the death penalty violates the Eighth Amendment’s prohibition against cruel and unusual punishment. The panel held that Ms. Alfaro’s claim was barred by her failure to exhaust available state court remedies, and was untimely under Fed. R. Crim. P. 15(c). The panel held that Ms. Alfaro is not excused from her failure to exhaust the claim. The panel wrote that even assuming futility persists as a potential exception to AEDPA’s exhaustion requirement, it does not excuse Ms. Alfaro’s failure to exhaust her state court remedies in this instance in which the California Supreme Court has not definitively rejected the claim she now raises in her habeas petition. The panel rejected Ms. Alfaro’s argument that her failure to exhaust should be excused because requiring her to return to state court would compound the delay she has already suffered. The panel explained that Ms. Alfaro will not be prejudiced by application of the exhaustion requirement because so long as her petition is pending in state court, the constitutional violation of which she complains (unconstitutional imposition of the death penalty) will not take place.   The panel also held that neither relation back under Rule 15 nor the emergence of new facts renders Ms. Alfaro’s claim, which was filed as part of her Third Amended Petition more than a year after her conviction became final, timely. Because Ms. Alfaro has not previously alleged facts regarding systemic delay in California’s post-conviction death penalty process, the panel held that her claim does not relate back to earlier, timely-filed claims. The panel concluded that the effort required to aggregate the publicly available information upon which her instant claim relies rendered that information discoverable through the exercise of due diligence.   http://cdn.ca9.uscourts.gov/datastore/opinions/2017/07/14/15-55337.pdf


United States v. Chavas-Cuevas: The panel affirmed a conviction and sentence for being a removed person found unlawfully in the United States.   The panel wrote that it need not resolve the question whether the district court erred by not expressly accepting the defendant’s guilty plea, because even if there was an error, it was not plain. The panel observed that it is unclear how the district court’s failure to accept expressly the defendant’s plea affected his substantive rights or could be sufficiently grave to constitute structural error, which would require automatic reversal, since the defendant’s guilty plea was impliedly accepted by the district court after reviewing relevant materials and personally interacting with the defendant.   The panel held that the district court properly relied on United States v. Becerril-Lopez, 541 F.3d 881 (9th Cir. 2008), to impose a 16-level crime-of-violence enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on the defendant’s prior robbery conviction under Calif. Penal Code § 211. The panel rejected the defendant’s contention that Becerril-Lopez, which held that robbery under § 211 was categorically a crime of violence under U.S.S.G. § 2L1.2(b), is no longer good law following the Supreme Court’s decisions in Decamps v. United States, 133 S. Ct. 2276 (2013), and Mathis v. United States, 136 S. Ct. 2243 (2016).  http://cdn.ca9.uscourts.gov/datastore/opinions/2017/07/10/15-50480.pdf

 

 

CJE Wire: Case Law Updates — 2017 July 7

 


 Washington State Courts


Washington State Supreme Court

Seattle v. Erickson: In an opinion authored by Justice Owens and joined by Justices Johnson, Wiggins, Gonzalez, Gordon McCloud and Madsen, the Court seized a long-awaited opportunity to amend its Batson framework and held that “the peremptory strike of a juror who is the only member of a cognizable racial group constitutes a prima facie showing of racial discrimination requiring a full Batson analysis by the trial court.” In this case, the only black juror was stricken by the City during pre-emptory challenges but, when Mr. Erickson objected, the trial court pointed to the fact that there were other jurors from “constitutionally cognizable groups” who remained on the panel. The trial court identified five jurors as “people of color,” but did not explicitly speculate about their racial backgrounds or identities. The trial court then concluded that it saw no circumstances in this case that rose to the level of prima facie discrimination. In overturning the trial court’s decision, the Court first found that Mr. Erickson did not waive his right to bring a Batson challenge by failing to object immediately upon excusal of the single black juror on the panel, but that his objection at the close of jury selection after the jury was excused for the day was timely. The Court then reasoned that the purpose of Batson “is to ensure that jury selection proceedings are free from racial discrimination…. Though a pattern of striking multiple jurors may demonstrate racial animus, “‘ [t] he Constitution forbids striking even a single prospective juror for a discriminatory purpose.”‘ The Court called the trial court “misguided” for inferring that leaving some members of cognizable racial groups on a jury while striking the only African American member proves the strike was not racially motivated, observing that Batson is concerned with “whether a juror was struck because of his or her race, not the level of diversity remaining on the jury.” Further, the Court found that Mr. Erickson made some prima facie showing of discrimination in challenging the City’s peremptory strike based on the fact that the only black juror on the panel had been stricken, and found the municipal court should have at the least “found a prima facie case out of an abundance of caution,” given that there were no other circumstances showing legitimate grounds for the strike. The Court reversed and remanded for a new trial.

Concurring, Justice Stephens, joined by Chief Justice Fairhurst, wrote separately not to object to the adoption of a bright line rule, but to comment that it was unnecessary because Mr. Erickson had made a prima facie case under any standard. The concurrence argued that the new rule was “unlikely to significantly reduce racial bias in jury selection because the ultimate inquiry under Batson remains whether the peremptory strike against a sole member of a constitutionally protected group evidenced intentional race discrimination.” The concurrence then advocated for a new rule under consideration by the court that would “alter the method for evaluating claims of race-based peremptory challenges so that the intentional discrimination that must be proved under Batson is no longer required.”

Also concurring, Justice Yu, joined by Justice Gonzalez, wrote separately to express concern that the bright line rule “assumes too much and falls short on ensuring that no juror is removed solely because of race, gender, sexual orientation, or religious beliefs.” The concurrence also expressed concern that adopting a bright line rule “that does not extend to members of other cognizable groups does not address discrimination on any basis other than race.” The concurrence argued that the basic framework of Batson does not work and joined Justice Gonzalez in calling for the “complete abolishment of peremptory challenges.” http://www.courts.wa.gov/opinions/pdf/934088.pdf

 


Division I Court of Appeals

State v. Youngs: The Court found that the issuing magistrate did not have sufficient facts to make an independent decision that there was probable cause for the warrant to draw Mr. Young’s blood. Though there was sufficient evidence of impairment when the officer claimed to observe a heavy odor of intoxicants, slurred speech, six of six clues on the HGN, and a PBT sample of .114, coupled with an admission to drinking, the Court found that the officer’s summary conclusion that Mr. Young’s car had been involved in a one car rollover collision was insufficient to establish he was driving. http://www.courts.wa.gov/opinions/pdf/734202.pdf


State v. Streepy: The Court affirmed Mr. Streepy’s convictions of attempted assault in the second degree, harassment based on threats to kill, four counts of unlawful possession of a firearm, and assault in the fourth degree. The Court found no error in the trial court’s admission of out of court statements by the victim’s son, reasoning that the child was too young to understand that any statements he might give could be used in trial against Mr. Streepy. Further, the court observed, the statements were made immediately after police interrupted Mr. Streepy’s assault on the child’s mother, and provided the officer with probable cause for arrest Mr. Streepy. Next, the Court found that Mr. Streepy’s claim that the trial court erroneously prohibited him from cross-examining the victim regarding her immigration status was “wrong.” The court noted that though the victim was eligible for a U visa based on the altercation, she did not know of this at the time of the assault and, further, had elected not to pursue such a visa in light of her DACA status. The Court found that any evidence of her immigration status was therefore irrelevant to the charge at hand. The Court also found that Mr. Streepy’s counsel was not ineffective for failing to enter into an Old Chief stipulation with regard to the firearms charges, holding that there was a conceivable strategic reason for counsel to decline to stipulate to the prior conviction, and instead force the State to prove that conviction. Finally, the Court accepted the State’s concession that the trial court erred by failing to treat the convictions for attempted assault and felony harassment as constituting the same course of criminal conduct for sentencing purposes, and remanded for resentencing. http://www.courts.wa.gov/opinions/pdf/747452.pdf

 


 Federal Law


Ninth Circuit Court of Appeals

United States v. Ochoa: The panel granted a petition for panel rehearing, withdrew its memorandum disposition filed December 14, 2016, denied a petition for rehearing en banc as moot, and filed a published opinion reversing the defendant’s conviction for illegal reentry in violation of 8 U.S.C. § 1326. The removal underlying the defendant’s illegal reentry conviction was based on the defendant’s prior conviction for conspiracy to export defense articles without a license in violation of 18 U.S.C. § 371 and 22 U.S.C. § 2778. The panel held that by criminalizing unlicensed exports of a broad range of munitions, § 2278 sweeps more broadly than the generic federal aggravated felony or firearms offenses, and that the defendant’s underlying conviction thus does not categorically qualify as a proper § 1326 predicate offense. The panel held that § 2278 is not divisible, and thus did not proceed to the modified categorical approach. Because the statute was overbroad and indivisible, the § 2278 conviction could not serve as a proper predicate for removal. The panel remanded with instructions to dismiss the indictment.

Concurring, Judge Graber, joined by Judge McKeown and Chief District Judge Lynn, wrote separately to express her view that this case should be reheard en banc to correct this court’s course with respect to the scope of collateral challenges under 8 U.S.C. § 1326(d), which has strayed increasingly far from the statutory text and is out of step with sister circuits’ correct interpretation. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/07/03/15-10354.pdf


United States v. Zapien: The panel affirmed the district court’s denial of the defendant’s motion to suppress his confession volunteered after he was arrested for alleged involvement in an illegal drug sale, Mirandized, and accused by DEA agents of being a drug dealer. The panel disagreed with the defendant’s argument that the agents’ questioning following the invocation of his right to counsel constituted interrogation, and concluded that the questioning was covered by the booking exception, which is an exemption from Miranda’s coverage for questions posed to secure the biographical data necessary to complete booking or pretrial services. The panel agreed with the district court that the questions asked of the defendant were biographical questions and were not reasonably likely to elicit an incriminating response.   http://cdn.ca9.uscourts.gov/datastore/opinions/2017/07/03/14-10224.pdf


United States v. Padilla-Diaz: The panel affirmed the district court’s denials of three defendants’ motions for sentence reductions under United States Sentencing Guidelines Amendment 782 and 18 U.S.C. § 3582(c)(2). Each defendant was denied a reduction based on an application of the Sentencing Commission’s Policy Statement § 1B1.10(b)(2)(A), which prohibits courts from reducing a defendant’s “term of imprisonment” to “less than the minimum of the amended guideline range,” absent circumstances not present here. The panel rejected the defendants’ contention that § 1B1.10(b)(2)(A) conflicts with 28 U.S.C. § 991(b) by nullifying departures and variances from the guideline range that were necessary to meet the statutory mandates of achieving a sentence sufficient but not greater than necessary under 18 U.S.C. § 3553(a). The panel held that the anomalous result – that sentences initially tailored to avoid unwarranted disparities and to account for individualized circumstances will now converge at the low end of the guideline range – does not create an irreconcilable conflict with § 991(b). The panel explained that § 991(b) is a general statement of the Commission’s goals, and that as acts of lenity, § 3582(c)(2) reductions are not constrained by the general policies underlying initial sentencing or even plenary resentencing proceedings. Rejecting the defendants’ contention that § 1B1.10(b)(2)(A) violates the equal protection component of the Fifth Amendment by irrationally denying sentence reductions to offenders who received lower sentences while granting them to those who originally received higher sentences, the panel held that the defendants have not shown that § 1B1.10(b)(2)(A) fails rational basis review. The panel rejected the contention by two defendants that applying the current version of § 1B1.10 to them violates due process because they entered into their plea agreements prior to its amendment. The panel explained that the defendants’ failure to receive a benefit from Amendment 782, which was promulgated after their pleas and is governed by limitations on its sentence reductions, is not the result of a retroactive deprivation of a pre-existing benefit, but rather the result of a prospective grant of a limited benefit. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/07/05/15-30279.pdf


Petrocelli v. Baker: The panel affirmed the district court’s denial of Tracy Petrocelli’s pre-AEDPA habeas corpus petition with respect to his Nevada state conviction for robbery and first-degree murder, and reversed the denial of the petition with respect to his death sentence. The panel held that because Mr. Petrocelli failed to invoke his right to counsel unambiguously, his April 19 interrogation was not conducted in violation of Miranda v. Arizona, 384 U.S. 436 (1966), or Edwards v. Arizona, 451 U.S. 477 (1981), and trial counsel was therefore not ineffective in failing to move to suppress testimony as fruit of the interrogation. The panel rejected Mr. Petrocelli’s contention that use at trial of his statements to detectives on April 20 and 27 violated his Fifth, Sixth, and Fourteenth Amendment rights. Because the State used the statements only for impeachment, the panel rejected Mr. Petrocelli’s contention that his Fifth and Sixth Amendment rights were violated by the taking of his statements during interrogations at which his appointed counsel was not present. The panel rejected the defendant’s contention that his statements were involuntary. The panel affirmed the district court’s conclusion that Mr. Petrocelli failed to exhaust his challenge to the jury instruction defining premeditation and deliberation. The panel held that the State waived any defense to Mr. Petrocelli’s contention that the admission of psychiatric testimony during the penalty phase violated his Fifth and Sixth Amendment rights under Estelle v. Smith, 451 U.S. 454 (1981). The panel held that even if the State had not waived its defense, admission of the testimony violated Estelle, where the psychiatrist, acting at the request of the prosecutor, visited Mr. Petrocelli in jail to determine his competency to stand trial, failed to provide Miranda warnings, did not seek or obtain permission from Mr. Petrocelli’s appointed counsel to visit or evaluate him, and testified that Mr. Petrocelli was dangerous and incurable. The panel concluded that the violation had a substantial and injurious effect on the jury’s decision to impose the death sentence.

Concurring, Judge Christen wrote separately because, in her view, even if the State could show that the prosecutor’s tactics had not prejudiced the jury’s verdict, Mr. Petrocelli’s case is one of the very few in which deliberate prosecutorial misconduct and egregious trial errors warrant habeas relief. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/07/05/14-99006.pdf


Visciotti v. Martel: The panel affirmed the district court’s denial of habeas relief in a case in which California state prisoner John Visciotti raised (1) a penalty-phase ineffective assistance claim, focused on the allegation that key aggravating evidence was introduced only as a result of counsel’s errors during the penalty proceedings; (2) a new claim that the cumulative effect of counsel’s ineffectiveness during both the guilt and penalty phases of trial ultimately prejudiced the penalty proceedings; and (3) a claim that the trial judge’s closure of the death-qualification voir dire proceedings violated Mr. Visciotti’s Sixth Amendment right to a public trial. The panel held that, whether or not the ineffective assistance of counsel claims have merit, they are foreclosed by the Supreme Court’s prior decision in this case, Woodford v. Visciotti, 537 U.S. 19 (2002) (per curiam). Regarding the trial judge’s closure of death-qualification voir dire, to which counsel did not object, the panel held that de novo review continues to apply, post-AEDPA, to a contention that ineffective assistance of trial counsel constitutes cause to excuse a procedural default. The panel concluded that counsel’s failure to object to the closure of death-qualification voir dire did not constitute deficient performance, and that Visciotti therefore cannot demonstrate cause to excuse his default of the public trial right claim.

Concurring, Judge Berzon, joined by Judge Pregerson, wrote separately to emphasize that this case illustrates that Supreme Court summary reversals cannot, and do not, reflect the same complete understanding of a case as decisions after plenary review. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/07/06/11-99008.pdf


Grant v. Swarthout: The panel reversed the district court’s order dismissing as untimely California state prisoner Willie Ulysses Grant’s federal habeas corpus petition, and remanded for further proceedings, in a case involving a prisoner’s right to equitable tolling for the period during which he was prevented from completing his federal habeas petition by an extraordinary circumstance. The panel held that a petitioner is entitled to use the full one-year statute-of-limitations period for the filing of his state and federal habeas petitions and that he need not anticipate the occurrence of circumstances that would otherwise deprive him of the full 365 days that Congress afforded him for the preparation and filing of his petitions. The panel therefore held that it was improper for the district court to fault the petitioner for filing his state petition for postconviction relief late in the statute-of-limitations period in reliance on his having a full year to file both his state and federal petitions, as promised by AEDPA. The panel held that Mr. Grant exercised reasonable diligence during the 20-odd day duration of an extraordinary circumstance, where he requested from the prison trust office, on the day he received notice of the California Supreme Court’s denial of his state postconviction petition, the prison account certificate required to file a federal habeas petition in forma pauperis and filed a second request when he did not hear back from prison officials for two weeks. Because it is obvious that Mr. Grant was diligent after he received the prison account certificate, the panel did not resolve whether a petitioner needs to prove that he was diligent after the extraordinary circumstance has ended. The panel disagreed with the state that Mr. Grant did not experience an extraordinary circumstance sufficient to justify tolling. The panel wrote that where a prisoner is dependent on prison officials to complete a task necessary to file a federal habeas petition and the staff fails to do so promptly, this constitutes an extraordinary circumstance. The panel concluded that Mr. Grant is entitled to equitable tolling from the time he requested the prison account certificate until he received the certificate, and that his petition was therefore timely. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/07/07/13-55584.pdf

 

 

 

CJE Wire: Case Law Updates — 2017 June 30



 Washington State Courts


Washington State Supreme Court

City of Sunnyside v. Gonzalez: In a unanimous opinion authored by Justice Yu, the Court overturned a lower court decision upholding the forfeiture of Mr. Gonzalez’ car and money due to drug manufacturing and distribution charges brought against Mr. Gonzalez. The Court found that Division III erred in refusing to apply the analysis used in the Division II Valerio opinion, in which Division II reversed a forfeiture order based on the fact that there was insufficient evidence connecting the money to be forfeited to illegal drug transactions. The Court applied the analysis in Valerio to the instant case, finding that the hearing examiner’s findings did not provide substantial evidence that Mr. Gonzalez’ property was subject to forfeiture. The Court deferred to the hearing examiner’s finding that Mr. Gonzalez’ explanation for the fact that he had multiple cell phones in his possession, was carrying thousands of dollars in cash without a substantial source of income, and driving a car with out-of-state plates that was not registered in his name was not credible, and court support a reasonable inference that he had obtained the car and the money through some unlawful means. However, the Court found, “the City’s burden was not merely to show that Gonzalez’s property was connected to some illegal or untoward activity. It was required to prove, by a preponderance of the evidence, that Gonzalez’s car and money were specifically connected to drug manufacturing, transactions, or distribution. The only preliminary finding that is supported by substantial evidence and relates in any way to controlled substances is the undisputed finding that cocaine was found in the car. The cocaine was described as a “[s]treet level amount, user amount,” Tr. (Apr. 7, 2014) at 5, “definitely less than an eighth of an ounce,” id. at 6, of “crack cocaine,” id. at 12, that was in a “cigarette pack” in the car’s center console, id. at 13. There was no other paraphernalia to indicate that Gonzalez had separated this cocaine from a distribution-level amount. Gonzalez was clearly guilty of possession, but there was no evidence that his drug-related activities ever had or ever would include drug manufacturing, transactions, or distribution. Allowing forfeiture under these circumstances would mean that a person’s property may be subject to forfeiture if it is connected to possession of even a small amount of a controlled substance.” This, the Court concluded, is contrary to the plain language of the forfeiture statute. http://www.courts.wa.gov/opinions/pdf/939071.pdf

 


Division I Court of Appeals

State v. Kocher: The Court found that the trooper had reasonable suspicion to stop Ms. Kocher for a traffic violation when he observed her drive with her wheels over the fog line for approximately 200 feet. The Court disagreed with Ms. Kocher’s argument that the applicable statute for the stop was RCW 46.61.140, “Driving on roadways laned for traffic,” not RCW 46.61.670, “Driving with wheels off roadway.” The Court held that “RCW 46.61.670 controls where it is undisputed that Kocher operated the wheels of her vehicle over the fog line, off of the roadway.” The Court rejected Ms. Kocher’s public policy argument, notably that it was absurd to allow a stop for a minor incursion over the fog line but not for a minor incursion over the lane line, stating that such an argument is “better addressed to the legislature.” The Court upheld the stop and the subsequent detention and arrest for DUI. http://www.courts.wa.gov/opinions/pdf/747754.pdf

 


Division II Court of Appeals

State v. Linville: In this partially published opinion, the Court found that Mr. Linville’s counsel was ineffective for failing to move to sever the improper joinder of charges in this case, and remanded for separate trials. The Court found that the plain language of RCW 9A.82.085 “prohibits the joinder of crimes not “alleged to be part of the pattern of criminal profiteering activity” to a prosecution for leading organized crime.” Thus, Mr. Linville’s counsel rendered deficient performance by not objecting to the joinder of charges not included in the definition of “criminal profiteering.” The Court reasoned that the unreasonable failure to research and apply relevant statutes without any tactical purpose constitutes deficient performance. Further, the Court found that Mr. Linville was prejudiced by Counsel’s failure to move for severance. The failure to object meant that Mr. Linville as improperly tried for 138 total charges and convicted of 137 offenses. Had counsel properly objected to the joinder, 56 of the charges, including all of the burglary charges, would have been severed, the trial would not have included convictions for those 56 improperly joined charges, and the outcome of this trial would have been different. Further, the Court noted, each of the four firearm enhancements, which resulted in a mandatory minimum sentence of 240 months, were associated with the four counts of first degree burglary, which would not have been considered but for defense counsel’s deficient performance.   Additionally, the joinder of the firearm charges permitted the State to introduce evidence of Mr. Linville’s prior felony for possession of a controlled substance without a prescription – a highly prejudicial piece of evidence, considering that the State’s theory was that Mr. Linville’s crime ring was motivated by drugs. The State additionally relied heavily on the burglaries as evidence of Mr. Linville’s guilt for leading organized crime. This evidence would not necessarily have been introduced in separate trials. http://www.courts.wa.gov/opinions/pdf/D2%2047916-8-II%20Published%20Opinion.pdf

 

 


Division III Court of Appeals

State v. Disney: The Court affirmed Mr. Disney’s conviction for malicious prosecution, finding sufficient evidence upheld the conviction. Mr. Disney had filed a Prison Rape Elimination Act (PREA) complaint against his public defender, alleging that she had reached under counsel table and rubbed the inside of his leg near his groin. Mr. Disney speculated that counsel was attempting to “butter him up” to take a plea deal. Courtroom tape was reviewed and no improper conduct was observed. Despite being notified that nothing untoward had happened, Mr. Disney repeated his claims to four additional agencies, prompting the prosecutor to file a charge of malicious prosecution against Mr. Disney. Mr. Disney appeared to argue that his belief that probable cause existed for the alleged assault was dispositive in the resolution of the instant charge. The Court found that while this is a factor to be considered, the Court may also look at evidence presented by opposing parties to determine whether the complained of action occurred, and thus determine whether there was probable cause for the charge of malicious prosecution. The Court further found that it was proper for the judge to stand in the courtroom in the location where the corrections officer was standing on the date of the alleged assault to observe what could be seen from that vantage point, as the corrections officer testified she would have notices had counsel reached across the chairs and touched Mr. Disney’s leg. Even if this was improper, however, the Court found that this was not an issue that could be raised for the first time on appeal, as Mr. Disney did not object to the judge’s actions during the trial. http://www.courts.wa.gov/opinions/pdf/349691_pub.pdf

 


 Federal Law


United States Supreme Court

Davila v. Davis: In an opinion authored by Justice Thomas and joined by the Chief Justice and Justices Kennedy, Alito, and Gorsuch, the Court held that the ineffective assistance of post-conviction counsel does not provide cause to excuse the procedural default of ineffective assistance of appellate counsel claims in a habeas petition. The Court pointed to Coleman v. Thompson, 501 U. S. 722, where the Court found that attorney error committed in the course of state post-conviction proceedings (for which there is no constitutional guarantee of the right to counsel) cannot supply cause to excuse a procedural default that occurs in those proceedings. The only exception to this, carved out in Martinez v. Ryan, is those instances where state law requires a claim of ineffective assistance of trial counsel to be raised in an “initial-review collateral proceeding” rather than on direct appeal. In those situations, “a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if” the default results from the ineffective assistance of the prisoner’s counsel in the collateral proceeding.” The Court declined to extend this exception to allow a federal court to hear a substantial, but procedurally defaulted, claim of appellate ineffectiveness when a prisoner’s state postconviction counsel provides ineffective assistance by failing to raise it. The Court appeared to reason that where, as here, a claim of trial error, preserved by trial counsel but not raised by appellate counsel, will have been addressed by the trial court, and so the equitable considerations of an unpreserved trial error that is not raised on appeal would not apply. In the latter circumstances, the Coleman or Martinez rules could be invoked.

Dissenting, Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, clarified that Justice Thomas’ opinion explained the rule that a federal habeas court cannot hear a state prisoner’s claim that his trial lawyer was, constitutionally speaking, “ineffective” if the prisoner failed to assert that claim in state court at the appropriate time, that is, if he procedurally defaulted the claim. However, the dissent argued that equitable exceptions apply, including when the underlying ineffective assistance of trial counsel claim is a substantial one, that is, the prisoner must demonstrate that the claim has merit. The dissent argued that this same exception should apply when a prisoner raises a constitutional claim of ineffective assistance of appellate counsel. The dissent argued that the reasons the majority cited for distinguishing the two instances were not rational, and noted that due process requires a criminal defendant to have effective assistance of appellate counsel as well. The dissent concluded, “[t]he basic legal principle that should determine the outcome of this case is the principle that requires courts to treat like cases alike. To put the matter more familiarly, what is sauce for the goose is sauce for the gander.” https://www.supremecourt.gov/opinions/16pdf/16-6219_i425.pdf

 


Ninth Circuit Court of Appeals

United States v. Strickland: Vacating a sentence and remanding, the panel held that third degree robbery under Oregon law is not a violent felony for purposes of the Armed Career Criminal Act because the term “physical force” as used in the Oregon statute is not coextensive with the term’s use in the ACCA. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/26/14-30168.pdf


United States v. Perez-Silvan: The panel affirmed a sentence for illegal reentry after deportation, and dismissed an appeal from a judgment revoking supervised release for a prior illegal reentry conviction.   The panel held that even if the defendant’s appeal from the judgment revoking supervised release had been timely, he waived his ability to contest the revocation by neglecting to brief the merits.   The panel held that the district court did not err by applying a 16-level crime-of-violence enhancement to the defendant’s illegal reentry sentence pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2015) based on his prior aggravated assault conviction under Tennessee Code Annotated § 3913-102. The panel explained that because §§ 39-13-102(a)(1) and (a)(2) carry different penalties, they necessarily contain distinct elements, rather than alternative means of committing aggravated assault, and that § 39-13-102(a) is therefore divisible into two crimes. Looking to the charging documents, the panel observed that the defendant was convicted under § 39-13-102(a)(1), which criminalizes intentional or knowing assault, rather than § 39-13102(a)(2), which covers reckless assault. The panel therefore concluded that the defendant’s claim that his statute of conviction does not qualify as a crime of violence because it can be violated by recklessness necessarily fails. The panel also explained that although an offensive touching under § 39-13-101(a)(3) can satisfy the second element of § 39-13-102(a)(1), an aggravated assault conviction further requires that the offensive touching “[c]ause[] serious bodily injury to another” or “use[] or display[] a deadly weapon,” both of which entail the use of violent force.

Concurring, Judge Owens applauded the United States Sentencing Commission for reworking § 2L1.2, which has been simplified since the defendant was sentenced; he urged the Commission to continue to simplify the Guidelines to avoid frequent complicated sentencing adventures. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/28/16-10177.pdf


United States v. Cavillo-Palacios: The panel affirmed a sentence for illegal reentry after deportation, and dismissed an appeal from the revocation of supervised release and the revocation sentence.   The defendant contended that the district court erred by applying a 16-level crime-of-violence enhancement to his illegal reentry sentence pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on his prior conviction for aggravated assault under Texas Penal Code §§ 22.01 and 22.02. The parties did not dispute that the defendant committed a simple assault in violation of § 22.01(a)(2), which became aggravated assault by application of § 22.02(a). The panel held that aggravated assault is a crime of violence under the element prong of § 2L1.2(b)(1)(A)(ii) because both means of committing aggravated assault—(1) causing serious bodily injury and (2) using or exhibiting a deadly weapon—entail the use of violent, physical force.   The panel held that the defendant waived his ability to contest the supervised release revocation and the revocation sentence by raising no issue and arguments in this regard in his opening brief.

Concurring, Judge Owens referred the reader to his concurrence in United States v. Perez-Silvan, Nos. 1610177, 16-10205 (9th Cir. 2017).   http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/28/16-10039.pdf


Godoy v. Spearman: The en banc court reversed the district court’s judgment denying a habeas corpus petition in which Enrique Anthony Godoy, who was convicted of second-degree murder, claimed improper outside influence on the jury. The en banc court held that the California Court of Appeal – which acknowledged juror misconduct and a presumption of prejudice, but concluded that the presumption was rebutted and refused to hold an evidentiary hearing – acted contrary to clearly established law: (1) by never requiring the state to rebut the presumption of prejudice, as required by Mattox v. United States, 146 U.S. 140 (1892), and Remmer v. United States, 347 U.S. 227, 229 (1954); (2) by relying on the same statement from a juror’s declaration both to raise the presumption of prejudice and to rebut it; and (3) by requiring Godoy to show a “strong possibility” of prejudice in order to have an evidentiary hearing, contrary to the Remmer requirement of a hearing whenever, as here, the presumption attaches but the prejudicial effect of the improper contact is unclear from the record. The en banc court remanded with instructions that the district court hold a hearing to determine the circumstances of a juror’s misconduct, the impact upon the jury, and whether or not it was prejudicial. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/30/13-56024.pdf

 

 

CJE Wire: Case Law Updates — 2017 June 25

 


 Washington State Courts


Washington State Supreme Court

State v. Lee: In an opinion authored by Chief Justice Fairhurst and joined by Justices Johnson, Gonzalez, Owens, and Yu, the Court found that the trial court did not abuse its discretion when it limited the scope of cross-examination of the alleged victim, J.W., by Mr. Lee. Mr. Lee had asked to cross-examine J.W. regarding a prior false rape accusation she had made against another person. The trial court allowed questioning regarding a false accusation to police about another person, but prevented Mr. Lee from specifying that the prior accusation was a rape accusation. The Court held that the State’s legitimate interests in excluding prejudicial evidence and protecting sexual assault victims outweighs Lee’s need to present evidence with minimal probative value. The Court found that Mr. Lee’s confrontation rights were satisfied when the trial court allowed him to cross-examine J.W. regarding prior false accusations. The Court further found that the four-year delay between arrest and trial was not a manifest error affecting a constitutional right such that it could be raised for the first time on appeal. The Court did remand to the trial court for a determination of Mr. Lee’s actual ability to pay LFO’s pursuant to Blazina.

Concurring, Justice McCloud, joined by Justices Madsen, Wiggins, and Stephens, argued that the trial court impermissibly restricted Mr. Lee’s right to confrontation by limiting the scope of cross-examination in this case, but agreed that the error was harmless, and concurred in the result reached by the majority. http://www.courts.wa.gov/opinions/pdf/924759.pdf


In Re Personal Restraint of Lui: In an opinion authored by Justice Gonzalez and joined by the Chief Justice and Justices Stephens, Wiggins, Yu, Siddoway, and Owens, the Court affirmed the appellate court’s finding that Mr. Lui’s claims of ineffective assistance of counsel, prosecutorial misconduct, Brady nondisclosure, jury misconduct, and newly discovered evidence were meritless, and affirmed the Court of Appeals’ denial of Mr. Lui’s request for a reference hearing. The Court found that Mr. Lui did not demonstrate that many of counsel’s decisions of which he complained were unreasonable trial tactics, he did not demonstrate prejudice due to ineffective assistance, nor did he raise disputed material facts that would establish prejudice and entitle him to a reference hearing. As to prosecutorial misconduct claims not raised at trial, the Court found these were not “so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice” and was incurable by a jury instruction. The Court found that Mr. Lui’s claim that the State failed to turn over an officer’s entire file did not amount to a Brady violation, as there was nothing to support a claim that the State suppressed evidence that would amount to Brady material. The Court likewise found no juror misconduct, and found no evidence that newly discovered DNA evidence would have affected the result of the trial.

Dissenting, Justice Madsen, joined by Justice Johnson, argued that Mr. Lui had presented sufficient evidence to warrant a reference hearing on the issue of ineffective assistance of counsel to further explore the alleged errors. http://www.courts.wa.gov/opinions/pdf/928169.pdf


State v. Whitlock: In a unanimous opinion authored by Justice Gordon McCloud, the Court found that the in-chambers conference between the judge and counsel to discuss the proper extent of cross-examination of a confidential informant who was the State’s key witness was an improper closure of the Courtroom. The Court noted that the discussion was not a sidebar, despite the fact that the trial was to the bench, and excluded the defendants and court reporters. A summation of the in-chambers proceeding was placed on the record, but it was not recorded. The Court distinguished the case from Smith, in which it held that sidebars do not implicate the public trial right under the experience and logic test, because this conference occurred in chambers, behind closed doors, and constituted an intentional courtroom closure without the justification that might be provided by a Bone-Club analysis. http://www.courts.wa.gov/opinions/pdf/936854.pdf

 


 Federal Law


United States Supreme Court

Honeycutt v. United States: In an opinion authored by Justice Sotomayor, and joined by the remainder of the court save Justice Gorsuch, who took no part in the consideration of the case, the Court found that Terry Honeycutt, who served as a sales and inventory manager for a hardware store owned by his brother, Tony Honeycutt, had no personal property interest in the hardware store and thus the government could not order a forfeiture of proceeds from the store, or of the store itself, for Terry’s part in a conspiracy between the brothers to distribute a product used in methamphetamine production. The Court reasoned that “forfeiture pursuant to §853(a)(1) is limited to property the defendant himself actually acquired as the result of the crime,” and concluded that forfeiture of the store or its proceeds was not permitted under that provision as against Terry Honeycutt. In reviewing the statute as a whole, the Court determined there was “no doubt that congress did not… incorporate the principle that conspirators are legally responsible for each other’s foreseeable actions in furtherance of their common plan. Instead, other provisions in the statute allow for recoupment of damages if the tainted property itself is not available. https://www.supremecourt.gov/opinions/16pdf/16-142_7l48.pdf


Virginia v. LeBlanc: In a Per Curiam opinion, the Court found that the Fourth Circuit had not given proper deference to the State of Virginia’s determination that its Geriatric Release program could satisfy the standards set forth in Graham to ensure that juvenile defendants sentenced to life without parole prior to the Graham decision are given an opportunity to seek parole. The Court observed that “[t]he regulations for conditional release under this statute provide that if the prisoner meets the qualifications for consideration contained in the statute, the factors used in the normal parole consideration process apply to conditional release decisions under this statute.” Therefore, the Court found, it was not objectively unreasonable for the state court to conclude the geriatric release program allowed juveniles to obtain release based on factors of maturity and rehabilitation as required under Graham. The Court observed that the question of whether the program violated the Eighth Amendment was not before it or the lower court, and could in any event not be resolved in federal habeas review. https://www.supremecourt.gov/opinions/16pdf/16-1177_m648.pdf


Packing ham v. North Carolina: In an opinion authored by Justice Kennedy and joined by Justices Ginsburg, Sotomayor, Kagan, and Breyer, the Court found an unreasonable restriction of free speech a North Carolina law that makes it a felony for a registered sex offender “to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages.” The Court observed that “[a] fundamental First Amendment principle is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more. Today, one of the most important places to exchange views is cyberspace, particularly social media, which offers “relatively unlimited, low-cost capacity for communication of all kinds, to users engaged in a wide array of protected First Amendment activity on any number of diverse topics.” The Court reasoned that even if the statute is content neutral and thus subject to intermediate scrutiny, the provisions therein are not narrowly tailored to serve a significant government interest. The Court specifically noted that the statute was unprecedented in the scope of First Amendment speech it burdens: “With one broad stroke, North Carolina bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge. Foreclosing access to social media altogether thus prevents users from engaging in the legitimate exercise of First Amendment rights. Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, particularly if they seek to reform and to pursue lawful and rewarding lives.” The Court further found that the State had not met its burden of establishing the law was necessary or legitimate to serve its stated purpose of keeping sex offenders away from vulnerable victims.

Concurring, Justice Alito, joined by Justice Thomas and the Chief Justice (Justice Gorsuch took no part in the consideration or decision of the case) agreed with the majority that, “because of the law’s extraordinary breadth” it violates the Free Speech Clause of the First Amendment. The concurrence declined to join the majority opinion, however, “because of its undisciplined dicta.” Specifically, the concurrence appeared offended by the Court’s “musings that seem to equate the entirety of the internet with public streets and parks,” expressing concern that “this language is bound to be interpreted by some to mean that the States are largely powerless to restrict even the most dangerous sexual predators from visiting any internet sites, including, for example, teenage dating sites and sites designed to permit minors to discuss personal problems with their peers.” https://www.supremecourt.gov/opinions/16pdf/15-1194_08l1.pdf


Weaver v. Massachusetts: In an opinion authored by Justice Kennedy, and joined by the Chief Justice and Justices Thomas, Ginsburg, Sotomayor, and Gorsuch, the Court held that the exclusion of the public during jury selection, an action necessitated by the size of the courtroom, and which was not objected to by defense counsel, the Court found that the defendant must show prejudice to secure a new trial based on a public-trial violation during jury selection, as the error was not preserved nor raised in direct appeal but raised later via an ineffective assistance claim. The Court then embarked on an examination of the proper application of the doctrines of structural error and ineffective assistance, concluding that though a structural error nearly always is sufficient to procure a new trial, regardless of prejudice, when defense counsel fails to preserve the issue, the defendant must show either fundamental unfairness in the error, or demonstrate that the result of the trial would have been different but for the error.

Concurring, Justice Thomas, joined by Justice Gorsuch, wrote separately with two observations about the scope of the ruling. First, the concurrence noted, this case presumes that that the closure of the courtroom during jury selection “was a Sixth Amendment violation” and that “defense counsel provided ineffective assistance” by “failing to object” to it. The concurrence expressed doubts as to whether, contrary to current case law, the Sixth Amendment right to a public trial in fact extends to jury selection. Second, the concurrence expressed concern that the holding in Strickland had been misstated, noting that prejudice under that case is established by demonstrating “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different”; by showing an “[a]ctual or constructive denial of the assistance of counsel altogether”; or by showing that counsel labored under “an actual conflict of interest.”

Also concurring, Justice Alito, joined by Justice Gorsuch argued that this case calls for a straightforward application of Strickland, and that the defendant cannot meet the standard set forth therein. According to the concurrence, Mr. Weaver could either demonstrate “a reasonable likelihood that his counsel’s error affected the verdict,” or he could “establish that the error falls within the very short list of errors for which prejudice is presumed.” As neither occurred, the concurrence agreed that the petition must be denied.

Dissenting, Justice Breyer, joined by Justice Kagan argued that “a defendant who shows that his attorney’s constitutionally deficient performance produced a structural error should not face the additional—and often insurmountable—Strickland hurdle of demonstrating that the error changed the outcome of his proceeding.” Instead, the dissent argued, the majority appeared to divide structural error into two types, those that are fundamentally unfair and those that are not. The dissent argued against conflating the Strickland standards with those of structural error in trial. https://www.supremecourt.gov/opinions/16pdf/16-240_g3bi.pdf


Turner v. United States: In an opinion authored by Justice Breyer and joined by Chief Justice Roberts and Justices Kennedy, Thomas, Alito, and Sotomayor, found that evidence withheld by the government in this kidnapping, robbery, and murder case in which Catherine Fuller was allegedly beset upon by a large group of individuals was favorable to the defense, but was not material under Brady such that the outcome of the trial would have been different. The Court rejected defense arguments that the evidence, including the identity of a man seen running into the alley where the murder occurred after the murder and stopping near the garage where Ms. Fuller’s body had already been found, the statement from a passerby who claimed to hear groans coming from the closed garage, and evidence tending to impeach government witnesses, would not have allowed the defense to challenge the Government’s basic group attack theory by raising the theory that only one or two perpetrators had been involved. The Court reasoned that in the context of the record, the evidence is “too little, too weak, or too distant from the main evidentiary points to meet Brady’s standards. The Court further found that the undisclosed impeachment evidence was largely cumulative of impeachment evidence petitioners already had and used at trial.

Dissenting, Justice Kagan, joined by Justice Ginsburg argued that with the withheld evidence, the defense would have been able to mount a unified defense, built around a different theory of the crime. This, the dissent posited, would have allowed them to dispute the gang-attack narrative and to challenge the credibility of the Government’s investigation. The dissent noted the only question left is whether this would change the outcome of the case, and that the legal standard is whether there was a reasonable probability that the outcome would be different. In summing up her belief that it would have been, the dissent concluded:

The Government got the case it most wanted—the one in which the defendants, each in an effort to save himself, formed something of a circular firing squad. And the Government avoided the case it most feared—the one in which the defendants acted jointly to show that a man known to assault women like Fuller committed her murder. The difference between the two cases lay in the Government’s files—evidence of obvious relevance that prosecutors nonetheless chose to suppress. I think it could have mattered to the trial’s outcome.

Justice Gorsuch took no part in the consideration or decision of the cases.

https://www.supremecourt.gov/opinions/16pdf/15-1503_4357.pdf


United States v Jae Lee: In an opinion authored by Chief Justice Roberts and joined by Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, the Court found that Mr. Lee had received ineffective assistance of counsel when he entered into a plea agreement on charges of possession with intent to distribute ecstasy based on the assurances of counsel that he would not be deported as a result of the plea. When Mr. Lee found he was in fact subject to mandatory deportation, he filed a motion to vacate his conviction and sentence, arguing that his attorney had provided constitutionally ineffective assistance. At an evidentiary hearing, both Mr. Lee and his plea-stage counsel testified that “deportation was the determinative issue” to Mr. Lee in deciding whether to accept a plea, and Mr. Lee’s counsel acknowledged that although Mr. Lee’s defense to the charge was weak, if he had known Mr. Lee would be deported upon pleading guilty, he would have advised him to go to trial. Contrary to the Sixth Circuit holding in this case, the Court found that Mr. Lee had demonstrated that he was prejudiced by his counsel’s erroneous advice. Mr. Lee had testified he would never have plead to the charge and would have insisted on going to trial had he known the result would be deportation, thus establishing prejudice. The Court rejected the Government’s urging that it adopt a per se rule that a defendant with no viable defense cannot show prejudice from the denial of his right to trial.

Dissenting, Justice Thomas, joined by Justice Alito, argued that “[n]either the Sixth Amendment nor this Court’s precedents support” the conclusion that a defendant should be able to overturn his plea despite “overwhelming evidence of guilt” and “no chance of success at trial” simply because his attorney misadvised him of the immigration consequences of the plea. Justice Thomas stuck by his pig-headed assertion that the Sixth Adnet does not require counsel to provide accurate advice regarding immigration consequences of a plea, and apparently based his dissent on this concept, which has been soundly rejected by his fellow justices. The dissent further called today’s decision a “novel concept for prejudice at the plea stage,” and argued that the need for evidentiary hearings for all motions to withdraw pleas would be a burden on the courts.

Justice Gorsuch took no part in the consideration or decision of the case.

https://www.supremecourt.gov/opinions/16pdf/16-327_3eb4.pdf


Maslenjak v. United States: In an opinion authored by Justice Kagan and joined by the Chief Justice and Justices Kennedy, Ginsberg, Breyer, and Sotomayor, the Court overturned the conviction of Ms. Maslenjak, an ethnic Serb who resided in Bosnia during the 1990s but escaped as a refugee to the United States in 1998. In her later citizenship application, Ms. Maslenjak swore that she had never given false information to a government official while applying for an immigration benefit or lied to an official to gain entry into the United States. However, the government soon learned that Ms. Maslenjak had known all along that her husband spent the war years not secreted in Serbia, but serving as an officer in the Bosnian Serb Army. The government charged her with knowingly “procur[ing], contrary to law, [her] naturalization,” in violation of 18 U. S. C. §1425(a). The Government claimed Ms. Maslenjak violated §1425(a) because, in the course of procuring her naturalization, she broke another law: 18 U. S. C. §1015(a), which prohibits knowingly making a false statement under oath in a naturalization proceeding. The District Court instructed the jury that, to secure a conviction under §1425(a), the Government need not prove that Maslenjak’s false statements were material to, or influenced, the decision to approve her citizenship application. The Court found that the text of §1425(a) “makes clear that, to secure a conviction, the Government must establish that the defendant’s illegal act played a role in her acquisition of citizenship. To “procure . . . naturalization” means to obtain it. And the adverbial phrase “contrary to law” specifies how a person must procure naturalization so as to run afoul of the statute: illegally. Thus, someone “procure[s], contrary to law, naturalization” when she obtains citizenship illegally. As ordinary usage demonstrates, the most natural understanding of that phrase is that the illegal act must have somehow contributed to the obtaining of citizenship. To get citizenship unlawfully is to get it through an unlawful means—and that is just to say that an illegality played some role in its acquisition.” Therefore, the mere fact that a law was broken while answering questions on a citizenship application is insufficient to run afoul of this law. The Court found that the Government’s contrary interpretation unsupportable under the basic rules of language and the context of the prosecution. Further, under the Court’s holding, qualification for citizenship is a complete defense to a prosecution under §1425(a).

Concurring in part and concurring in the judgment, Justice Gorsuch, joined by Justice Thomas argued that the Court overstepped the question asked, which was whether the statute contains a materiality element, not “the contours of a causation requirement.” The concurrence criticized the court for establishing causation tests and an affirmative defense, arguing that there had been no briefing on the subject and that the lower courts had not had a chance to weigh in. The concurrence concluded, “For my part, I believe it is work enough for the day to recognize that the statute requires some proof of causation, that the jury instructions here did not, and to allow the parties and courts of appeals to take it from there as they usually do. This Court often speaks most wisely when it speaks last.”

Concurring, Justice Alito wrote that the “language of 18 U. S. C. §1425(a) does not require that an illegal false statement have a demonstrable effect on the naturalization decision. Instead, the statute applies when a person makes an illegal false statement to obtain naturalization, and that false statement is material to the outcome.” The concurrence also noted that Section 1425(a) criminalizes the knowing performance of a substantial act that he or she thinks will procure naturalization.


Ninth Circuit Court of Appeals

United States v. Ubaldo: The panel affirmed Cesar Ubaldo’s conviction for illegally importing weapons into the United States in violation of 18 U.S.C. §§ 371, 922(l), 924(a)(1)(C), and 22 U.S.C. § 2778(b)(2). The panel held that the district court correctly determined that, considering the language and history of the legislation, the weapons importation statutes, §§ 922(l) and 2778(b)(2), apply extraterritorially. Applying the aiding and abetting statute to the defendants’ conduct, the panel held that the district court properly rejected the challenge to the sufficiency of the evidence to support the jury’s verdict. The panel held that the district court properly denied, after conducting a Franks hearing, Mr. Ubaldo’s suppression motion in which he claimed that the search warrant affidavit contained false and misleading statements. Rejecting Mr. Ubaldo’s contention that the district court should have dismissed the indictment due to an agent’s failure to preserve text messages, the panel held that the district court did not clearly err in finding that Mr. Ubaldo failed to establish bad faith. The panel held that the district court acted within its discretion when it elected to issue a curative instruction rather than granting a mistrial for a purported violation of Fed. R. Crim. P. 16. The panel held that the district court did not abuse its discretion in admitting evidence regarding Mr. Ubaldo’s previous smuggling conduct, which was relevant to show his “intent, plan, knowledge or absence of mistake”; or in allowing the government to introduce testimony regarding the capabilities, usage, and source of the weapons. The panel held that any error in allowing the weapons introduced into evidence to remain in display in the courtroom was harmless. The panel held that the district court adequately instructed the jury regarding the elements of causing the importation of weapons into the United States under 18 U.S.C. § 2(b); and that there is no merit to the defendants’ contentions that the district court’s willfulness instruction was incomplete, or potentially allowed the jury to convict the defendants for merely facilitating or brokering the deals. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/09/14-50093.pdf


United States v. Brown: The panel reversed a conviction for conspiracy to make, print, or publish “any notice or advertisement seeking or offering” child pornography in violation of 18 U.S.C. §§ 2251(d) and (e), and remanded for retrial, in a case in which the defendant was a member of an online bulletin board where members shared child pornography. The defendant challenged his conviction on the ground that the district court violated his Sixth Amendment right to present his defense to the jury when it precluded him from arguing the government had not met its burden to show that the bulletin board involved a “notice” or an “advertisement,” given the closed nature of the bulletin board. The panel held that by effectively ruling as a matter of law that the closed nature of the bulletin board was irrelevant to the question of whether an “advertisement” or a “notice” had been shown, a determination that was the jury’s to make, the district court violated the defendant’s fundamental right to assistance of counsel and right to present a defense, which was structural error, and relieved the prosecution of its burden to prove its case beyond a reasonable doubt.

Dissenting, Judge Bybee wrote that the majority opinion is entirely inconsistent with United States v. Grovo, 826 F.3d 1207 (9th Cir. 2016), which held that posting child pornography on a closed, online bulletin board was—as a matter of “statutory interpretation”—an “advertisement” under § 2251(d). http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/12/15-30148.pdf


United States v. Hernandez: The panel reversed the defendant’s conviction for transportation of firearms into his state of residence in violation of 18 U.S.C. § 922(a)(3), and remanded. The panel agreed with the government that the prohibition on the transportation of guns in § 922(a)(3) is not subject to the heightened willfulness requirement used in some tax and structuring laws. In this case, the government was required to show that the defendant knew his transportation of firearms into California was somehow unlawful, even if he did not know of the specific legal duty, or the particular law, that made it unlawful. The panel held that, viewed in the light most favorable to the prosecution, a reasonable jury could have concluded that the government met its burden. But given the district court’s broad willfulness instruction, and the government’s introduction of, and arguments relying on, evidence that the defendant intended to later unlawfully sell the guns he purchased, the panel held that there is a substantial likelihood that the defendant was convicted for the act of transporting guns with the intent to commit a later crime rather than the one with which he was charged. The panel could not conclude on this record that this constitutional error was harmless beyond a reasonable doubt. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/15/14-50214.pdf


United States v. Kleinman: The panel affirmed a conviction and sentence for conspiracy to distribute and possess marijuana, distribution of marijuana, maintaining a drug-involved premises, and conspiracy to commit money laundering, arising out of the operation of purported medical-marijuana collective storefronts in California. The defendant argued that a congressional appropriations rider enjoining use of United States Department of Justice funds in certain medical marijuana cases prohibits continued prosecution of his case, and that he is entitled to an evidentiary hearing under United States v. McIntosh, 833 F.3d 1163 (9th Cir. 2016), to determine whether he strictly complied with all relevant conditions imposed by state law. The panel held that the rider only prohibits the expenditure of DOJ funds in connection with a specific charge involving conduct that is fully compliant with state laws regarding medical marijuana; that the rider does not require a court to vacate convictions that were obtained before the rider took effect; and that the rider, if it applies to this case at all, might operate to bar the DOJ from continuing to defend the prosecution on appeal insofar as it relates to those counts that may be determined to involve only conduct that wholly complies with California medical marijuana law. The panel concluded that the defendant is not entitled to a McIntosh remand in this case because (1) his conviction and sentence were entered before the rider took effect; (2) the rider does not bar the DOJ from spending funds in connection with Counts 1 and 6, which definitively involved conduct that violated state law; (3) even if the rider applied to Counts 2 and 5, an open question, the panel’s rulings on Counts 1 and 6 are dispositive of all counts since the defendant’s substantive appellate claims concern all counts equally; and (4) the defendant does not win relief on any of his other arguments, so a McIntosh remand on Counts 2 through 5 is unnecessary. The panel held that the district court erred by instructing the jury that “[t]here is no such thing as valid jury nullification,” and that it “would violate [its] oath and the law if [it] willfully brought a verdict contrary to the law given to [it] in this case.” The panel held that because there is no right to jury nullification, the error was harmless. The panel held that the district court did not err by denying the defendant’s motion to suppress, because the dispensary’s practice, as described in the warrant affidavit, of requiring members to designate the dispensary as their primary caregiver and then allowing members to purchase marijuana immediately after, provided probable cause to believe that the dispensary was operating illegally. The panel held that the district court did not err by denying the defendant a Franks hearing, or by declining to instruct the jury on the defendant’s joint-ownership defense. The panel held that the district court did not abuse its discretion by considering the government’s late-filed objections to the presentence report, and that the sentence is substantively and procedurally reasonable. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/16/14-50585.pdf


United States v. Cervantes: The panel affirmed a conviction and sentence in a case in which police officers conducted a warrantless, suspicionless search of the defendant’s hotel room pursuant to a condition of the mandatory supervision the defendant was serving for the final year of his three-year California county jail sentence. The panel held that for Fourth Amendment purposes, mandatory supervision is more akin to parole than probation, and that the search was authorized under the search condition because the officers had probable cause to believe that the hotel room constituted “premises” under the defendant’s control. Rejecting the defendant’s contention that the officers violated California’s prohibition against arbitrary, capricious, or harassing searches, the panel noted that, without something more, a suspicionless search is lawful if authorized by a parolee’s search condition. Concluding that no Fourth Amendment violation was shown, the panel held that the district court properly denied the defendant’s motion to suppress the evidence found in his hotel room. The panel held that the defendant had adequate notice of a suspicionless search condition of supervised release imposed in connection with his federal sentence, and that the facts of the case justified the district court’s belief that the condition would be necessary to mitigate the exceptionally high risk that the defendant would re-offend during his term of supervised release. http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/19/15-50459.pdf

 

 

 

CJE Wire: Case Law Updates — 2017 February 17

 


 Washington State Courts


Division I Court of Appeals

State v. Bacon: The Court found that the juvenile court does not have authority to suspend dispositions due to a manifest injustice of the length of the disposition. Evan Bacon pleaded guilty to second degree robbery. His prior record dictated a standard sentencing range of 52 to 65 weeks. Mr. Bacon asked for a declaration of manifest injustice, noting that he was doing better, back in school, and living at home. The court noted that Mr. Bacon had begun to make important changes in his life, but that he was still a “threat to the community.” However, wanting to keep youth in the community when possible, the court granted a manifest injustice, imposed a disposition of 65 weeks’ confinement, and suspended it, placing Mr. Bacon instead on community supervision. The State appealed. The Court found that the Juvenile Justice Act gives juvenile courts limited authority to suspend dispositions, but that a manifest injustice was not one of the listed reasons allowing such suspension. Instead, the Court found, if the juvenile court finds that a standard range disposition will “effectuate a manifest injustice the court shall impose a disposition outside the standard range.” RCW 13.40.0357 (option D). http://www.courts.wa.gov/opinions/pdf/742337.pdf

 


Division II Court of Appeals

State v. Froelich: Martha Froelich was involved in a two-car accident at a busy intersection on SR 3. After the accident, the truck she was driving came to rest on the side of the road, out of traffic. When troopers arrived, they questioned Ms. Froelich about the registration of the car, which she admitted was not hers, and then regarding her drug use. When another trooper arrived to administer field tests, Ms. Froelich requested an ambulance. The troopers followed her to the hospital and ultimately determined she was not impaired. Before she left, however, officers failed to discuss the disposition of the vehicle, or inquire about her ability to have someone come get the car. The officer later determined that the vehicle was a traffic hazard because it impeded visibility, but also believed it would be impossible to remove the car without a tow truck. The officer further could see valuables in plain view inside the vehicle, and determined that he could not leave the car unsecured in its present location. Because of this, but without discussing other options with Ms. Froelich, the officer impounded the vehicle and began an impoundment inventory. During the search, the officer located white powder which he believed was methamphetamines. He stopped the search, applied for a warrant, and completed the search, confirming the nature of the drug.   In the subsequent motion to suppress the trial court found, and the appellate court agreed, that the vehicle was not properly impounded under the officer’s community caretaking function, and that the drugs found in the resulting inventory search must be suppressed. The court reasoned that for the impoundment to be lawful, the officer was required to consider whether Ms. Froelich, a spouse, relative, or friend could arrange to move the car before it was impounded. As the officer did not offer Ms. Froelich this option, the impoundment was illegal.

Dissenting, Judge Melnick argued that he officer acted lawfully and responsibly in impounding Ms. Froelich’s vehicle. The dissent argued that the majority’s reliance on the obligation of the officer to determine whether friends or a spouse is available to move the vehicle was misplaced. “The police are neither required to ask the driver, in the circumstance of this case, about the availability of someone else to remove the car nor are they required to call people who are not at the scene of the vehicle impound and wait for them to respond.” The dissent noted that Ms. Froelich voluntarily left the scene and was not present to authorize another person to move the vehicle, the vehicle was a traffic hazard, and could only be moved with a tow truck. Further, though it was not part of the trial court’s findings of fact, the dissent argued that the officer did consider alternatives to impoundment. Therefore, the dissent argued that the impoundment and inventory search was lawful and should have been upheld. http://www.courts.wa.gov/opinions/pdf/D2%2048026-3-II%20Published%20Opinion.pdf