CJE Wire: Case Law Updates — 2018 July 20


 Washington State Courts

Division II Court of Appeals

In Re Knight:  The Court allowed Mr. Knight to withdraw his guilty plea to the non-existed crime of attempted manslaughter in the first degree and remanded to vacate the conviction. The Court found that Mr. Knight’s collateral attack was not time barred, because the judgment and sentence was facially invalid.  Because the conviction was for a non-existent crime, the Court found that it constituted constitutional error that per se actually and substantially prejudiced Mr. Knight.  Further, because the crime was a predicate for a three strikes sentence, the Court found Mr. Knight showed actual prejudice as well.  http://www.courts.wa.gov/opinions/pdf/D2%2049521-0-II%20Published%20Opinion.pdf


Division III Court of Appeals

State v. Johnson:  The Court remanded Mr. Johnson’s matter for resentencing regarding five community custody conditions challenged by Mr. Johnson.  The Court found that four of the conditions prohibited access to images or media containing some form of sexual content, and the fifth prohibited Mr. Johnson from being present at locations where children congregate.  The Court found that two provisions, restricting access to nude images and images of children wearing only undergarments and/or swimsuits were overbroad and not crime related, as there was no evidence Mr. Johnson was aroused by the types of nonerotic images described in this conditions. The Court applied similar reasoning to the conditions prohibiting the viewing of sexually explicit activity and attendance at X-rated movies, peep shows, or adult book stores, finding again no connection to the crime of conviction.  The court affirmed but amended the condition prohibiting Mr. Johnson from being in places where children congregate, adding that those children must be under 16 years of age.

Dissenting in part, Judge Fearing urged further modification of the condition prohibiting Mr. Johnson from patronizing places where children congregate, urging the court to make this condition more specific by specifying the places to be avoided. http://www.courts.wa.gov/opinions/pdf/349284_pub.pdf

State v. Burnam: The Court found no error in the trial court’s exclusion of evidence showing that the murder victim had dated a man accused of murder and hidden the murder weapon.  The Court agreed that this evidence “had minimal or no relevance to Mr. Burnam’s claim at trial that he feared serious injury or death.”  The Court noted that Mr. Burnam was allowed to present ample evidence that he was afraid of the victim and believed he was acting in self-defense on the night of the murder but found the specific evidence of the unrelated case irrelevant, and held there was no error in its exclusion.  http://www.courts.wa.gov/opinions/pdf/349462_ord.pdf

State v. Taylor:  The Court found that the rule enunciated in Old Chief, allowing a defendant to stipulate to prior convictions if the conviction is an element of the crime, extends to a defendant’s offer to stipulate to a postconviction no contact order.  The Court found that the order had no further probative value once the defendant stipulated to its existence and his knowledge of the order.  However, the Court found the risk of undue prejudice was substantial, particularly considering the order itself notified the reader that it was a post-conviction order.  The Court also found that Mr. Taylor’s guilty plea to a related charge was not knowingly and voluntarily entered because Mr. Taylor appeared to both admit and deny the prohibited conduct.  http://www.courts.wa.gov/opinions/pdf/351726_pub.pdf

State v. Karas:  The Court accepted the defendant’s motion for reconsideration and withdrew its original opinion, noting that an amended opinion will be filed in due course. http://www.courts.wa.gov/opinions/pdf/348997_ord.pdf



 Federal Law

United States Supreme Court

Carpenter v. United States:In a decision authored by the Chief Justice, and joined by Justices Breyer, Ginsburg, Sotomayor, and Kagan, the Court held that the government’s acquisition of the defendant’s cell site records, allowing the government to place Mr. Carpenter near the scene of four robberies on the dates they occurred, was a search under the terms of the Fourth Amendment, and a warrant was required.  In so holding, the Court recognized the privacy interest inherent in a person’s location and physical movements, and likened the records obtained by the government to the use of a GPS tracker, which also requires a warrant.  The government refused to extend the doctrine of third-party sharing, noting that the information contained in cell site records was far more revealing than the types of information subject to third-party sharing, and that the cell records were generated by the mere act of possessing the phone, and were thus not affirmatively shared. https://www.supremecourt.gov/opinions/17pdf/16-402_new_o75q.pdf

Dissenting, Justice Kennedy, joined by Justices Thomas and Alito argued that cell site records are no different than any other business record, and that third parties have no expectation of privacy in such records.

Dissenting, Justice Alito, joined by Justice Thomas argued that the request in this case, asking a company to look through its records and turn over specific documents, did not rise to the level of an actual search and is contrary to Fourth Amendment jurisprudence.  The dissent further argued that the Court today allows a defendant to object to a search of a third party’s property.

Dissenting, Justice Thomas argued that this case should not turn on whether a search occurred, but on whose property was searched, and posited that the government did not search the defendant’s records in this case, but those belonging to the cell phone companies.  Justice Thomas also found fault with the Katz reasonable expectation of privacy test, which he claimed had no basis in the Fourth Amendment.

Dissenting, Justice Gorsuch advocated for a return to the pre-Katz method of evaluating the need for a warrant, by merely determining the right to privacy through the lens of common law property rights.


Ninth Circuit Court of Appeals

Tamplin v. Muniz:The panel reversed the district court’s judgment denying California state prisoner Dwight Tamplin, Jr.’s petition for a writ of habeas corpus, and remanded with instructions to grant the writ.  Mr. Tamplin argued that his 25years-to-life Three Strikes sentence was obtained in violation of his Sixth Amendment right under Faretta v. California, 422 U.S. 806 (1975).  The panel reviewed the state habeas court’s decision that Mr. Tamplin’s Farettaclaim was meritless through the lens of the Antiterrorism and Effective Death Penalty Act (AEDPA).  The panel specifically found that the state court’s two conclusions—that Mr. Tamplin’s request to represent himself was equivocal, and that Mr. Tamplin waived his Sixth Amendment right by not continuing to object after a public defender was reappointed to represent him—were clearly contrary to established Supreme Court law.  Reviewing de novo, the panel held that Mr. Tamplin’s request to represent himself was timely; that Mr. Tamplin’s appellate counsel rendered constitutionally deficient performance by failing to raise Mr.  Tamplin’s compelling Farettaclaim; and that Mr. Tamplin was prejudiced by counsel’s deficient performance.

Dissenting, Judge Hawkins wrote that Mr. Tamplin has not established that the state court’s decision was in direct and irreconcilable conflict with Supreme Court precedent and has not shown that the state court ruling applying Faretta was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair minded disagreement.  http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/06/16-15832.pdf

United States v. Obendorf: Affirming a conviction for illegally baiting ducks in violation of the Migratory Bird Treaty Act, and conspiring to do the same, the panel held that an “agricultural practice exception” set forth in 50 C.F.R. § 20.21(i)(1) applies to unlawful taking, but not unlawful baiting, and thus could not have immunized the defendant’s conduct. The panel concluded that although the parties misapprehended the law in the district court by treating § 20.21(i)(1) as applicable to the defendant’s case, the error was harmless.  http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/09/16-30188.pdf

United States v. Hernandez: The panel affirmed in part and vacated in part a sentence for sexual exploitation of a child and issued a limited remand for resentencing. The panel affirmed the district court’s determination that the distribution-of-pornography enhancement set forth in U.S.S.G. § 2G2.1(b)(3) applies when the perpetrator creates an illicit image of a minor victim and shares it only with the victim. The panel issued a limited remand for resentencing because the record suggests that the district court penalized the defendant by increasing his sentence based on his decision to exercise his Sixth Amendment right to go to trial. Judge Rawlinson dissented from the portion of the majority opinion concluding that the district judge impermissibly “punished” the defendant by tethering his sentence to the exercise of his constitutional right to have his guilt determined by a jury.  http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/10/13-10428.pdf

United States v. Joyce: Affirming a conviction for conspiring to suppress and restrain competition by rigging bids, in violation of 15 U.S.C. § 1, the panel held that bid rigging is per se illegal under Section 1 of the Sherman Act, and that the district court therefore did not err by refusing to permit the defendant to introduce evidence of the alleged ameliorative effects of his conduct.  http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/11/17-10269.pdf

White v. Ryan:The panel reversed the district court’s judgment denying Arizona state prisoner Michael Ray White’s petition for a writ of habeas corpus based on ineffective assistance of counsel at resentencing and remanded with instructions to grant a conditional writ.  Regarding counsel’s performance, the panel held (1) that counsel performed deficiently by failing to challenge evidence that Mr. White committed the murder for pecuniary gain, and by failing to conduct an adequate investigation of mitigating factors, including the unreasonable decision not to hire any experts to assist with the penalty phase; and (2) that the state post-conviction court’s contrary conclusion was an unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984), and Wiggins v. United States, 539 U.S. 510 (2003).  The panel evaluated prejudice without AEDPA deference because the state post-conviction court applied a test for prejudice contrary to Strickland.  Reviewing de novo, the panel concluded that there is a reasonable likelihood that White would have received a different sentence if counsel had investigated and presented mitigating evidence.  http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/11/15-99011.pdf

United States v. Pepe:The panel vacated a conviction and sentence under the 2005 version of 18 U.S.C. § 2423(c), which applies to a U.S. citizen “who travels in foreign commerce and engages in any illicit sexual conduct with another person,” and remanded, in a case in which the defendant, a U.S. citizen, drugged and raped several children in Cambodia, where he claims to have resided for several years.  The defendant contended that the statutory language didn’t encompass his conduct because, as a resident of Cambodia, he had ceased “travel[ing] in foreign commerce.” The panel held that in light of a 2013 amendment to the statute adding a new basis for criminal liability, as well as the accompanying legislative history, it is evident that the version of § 2423(c) in effect at the time of the defendant’s illicit sexual conduct was inapplicable to U.S. citizens living abroad unless they were traveling—meaning something more than being in transit—when they had illicit sex.  The panel wrote that this subsequent Congressional pronouncement is clearly irreconcilable with this court’s previous construction of the statute in United States v. Clark, 435 F.3d 1100 (9th Cir. 2006) (concluding that § 2423(c) “does not require that the conduct occur while traveling in foreign commerce”), and that the panel is therefore not bound by the reasoning in Clark.  The panel observed that the government appears to dispute the defendant’s claim that he had resettled in Cambodia.  Because the jury was not properly instructed on the travel element, the panel wrote that if the government elects to retry the defendant, it will need to prove that he was still traveling when he committed illicit sexual conduct.

Dissenting, Chief Judge Thomas wrote that Clark, whose holding of the statutory reach of the prior statute is completely consistent with the 2013 amendment, remains good law and is binding on this panel.  He wrote further that the panel should not be deciding the question, never argued to the district court, of whether the prior statute applied to citizens who temporarily resided abroad and intended to resettle.  http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/11/14-50095.pdf

United States v. Buenrostro:  The panel affirmed the district court’s denial of Jose Luis Buenrostro’s motion for a sentence reduction under 18 U.S.C. § 3582(c)(2), and the district court’s denial of his motion to vacate his sentence under 28 U.S.C. § 2255, following President Obama’s commutation of his sentence from life in prison without release to 360 months in prison. The panel held that Mr. Buenrostro is ineligible for a sentence modification under § 3582(c)(2) because he was originally sentenced based on a statutory mandatory minimum, not based on a sentencing range.  Explaining that a presidential commutation does not overturn the sentence imposed by the sentencing court, the panel wrote that President Obama’s commutation was not based on a recalculation of a sentencing range. The panel held that President Obama’s commutation of Mr. Buenrostro’s sentence did not create a new judgment, and that Mr. Buenrostro therefore remains subject to the restrictions on second-or-successive motions under § 2255. http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/13/16-10499.pdf

United States v. Barnes:  The panel affirmed a conviction for being a felon in possession of a firearm, in a case in which the defendant argued that the district court erred (1) by denying his motion to suppress evidence based on an allegedly invalid arrest warrant and (2) by precluding the defendant from presenting a necessity defense.  The panel held that the district court’s finding that the municipal judge who signed the defendant’s arrest warrant must have reviewed the underlying citation as part of her “ordinary course of business” was clearly erroneous, where there is no record evidence that the municipal court judge either received or read a copy of the citation prior to her finding of probable cause.  The panel therefore concluded that the warrant for the defendant’s arrest for the underlying trip permit violation was inexcusably infirm and that the defendant therefore satisfied his burden of showing judicial abandonment by a preponderance of the evidence.   The panel held that the good faith exception to the exclusionary rule applies unless a defendant can show that the issuing judge abandoned his or her role and that the law enforcement officer knew or should have known of such abandonment.  The panel concluded that although the defendant met his burden of showing judicial abandonment, the evidence cannot be suppressed because the officers executing the infirm warrant were unaware—and had no reason to be aware—of any judicial misconduct.  The panel held that the district court did not err in denying the defendant’s request to present a necessity defense to the jury.  http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/19/16-30203.pdf

Ross v. Williams:  The panel affirmed the district court’s judgment dismissing as untimely California state prisoner Ronald Ross’s amended habeas corpus petition brought pursuant to 28 U.S.C. § 2254.  Mr. Ross argued that the claims in his new petition, prepared with the assistance of counsel, arose out of facts set out in a state court order attached to his pro se original petition, and that the district court therefore erred in failing to apply the relation back doctrine in Fed. R. Civ. P. 15(c). The panel held that because Mr. Ross did not comply with Rule 2(c) of the Rules Governing Section 2254 Cases either directly or by incorporating (or attempting to incorporate) the facts in the Nevada Supreme Court affirmance into his original petition, that petition does not provide an aggregation of facts that can support the claims in his amended petition. The panel concluded that the district court therefore did not err in concluding that Mr. Ross’s amended petition cannot relate back to the claims in his original petition.

Dissenting, District Judge Bates wrote that this court should liberally construe Mr. Ross’s pro se original petition as setting out facts discussed in the attached state court decision and should then remand for the district court to determine in the first instance whether the claims in the amended petition arose out of the conduct, transaction, or occurrence set out in his original petition. http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/19/16-16533.pdf

United States v. Robertson:  The panel affirmed convictions for theft of mail by a postal employee in violation of 18 U.S.C. § 1709, and possession of stolen mail in violation of 18 U.S.C. § 1708.   The panel held that the district court did not err in denying the defendant’s motion to dismiss the indictment on due process grounds based on the government’s failure to preserve a video of a Postal Service employee parking lot.  The panel held that the district court’s finding that the investigating agent did not act in bad faith was not clearly erroneous, and that the exculpatory value of the video was speculative. The panel held that the district court did not abuse its discretion by failing to instruct the jury on lost or destroyed evidence as a sanction for the government’s failure to preserve the parking lot video.

The panel held that the district court did not abuse its discretion in ruling that a conversation between the prosecutor and two investigating agents outside the courtroom did not violate Fed. R. Evid. 615, which provides that, at a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony.  Addressing an open question, the panel held that Rule 615 prohibits a sequestered witness from not only attending a hearing or trial but reading transcripts from it.  The panel held that the district court acted within its discretion by determining that the appropriate sanction for the government’s allowing two agent witnesses to review transcripts of prior testimony was to allow the defense to cross-examine the witnesses about their exposure to the transcripts. The panel held that the district court did not abuse its discretion in denying the defendant’s request for production of an agent’s notes under the Jencks Act.  The panel clarified that unless a defendant makes a threshold showing that notes sought pursuant to the Jencks Act may qualify as a “statement” under the Act, the district court is not obligated to review the notes in camera before refusing to compel production.  The panel concluded that the defendant did not make that threshold showing.

 The panel rejected the defendant’s argument that the district court’s disjunctive jury instruction on embezzlement of mail by a postal employee – which allowed the jury to convict her solely on a finding that “she came into possession” of the mail, rather than a showing of both entrustment and possession – was plain error.  The panel explained that the jury instruction tracked the language of section 1709, and that the government may charge in the conjunctive and prove in the disjunctive.  http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/20/16-10385.pdf

United States v. Sleugh:  The panel affirmed the district court’s affirmance of a magistrate judge’s order denying Damion Sleugh’s motion to unseal codefendant Shawndale Boyd’s applications to issue subpoenas pursuant to Fed. R. Crim. P. 17(c).  The panel held that there is no presumption of public access under the First Amendment or common law that attaches to Rule 17(c) subpoena applications and their supporting materials; and that parties can only justify accessing sealed or in camera Rule 17(c) subpoenas, subpoena applications, and supporting documents by demonstrating a “special need.”  The panel held that Sleugh failed to demonstrate a “special need” for Boyd’s Rule 17(c) subpoena materials, and that there is a continuing need to seal them. http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/23/17-10424.pdf