US v. Mayea-Pulido, No. 18-50223 (1-3-20)(Friedland w/M. Smith & Bastian). This is an equal protection challenge as to derivative citizenship.  The defendant was convicted of illegal reentry under 1326, but he argued that 8 USC 1432(a), by applying different requirements for derivative citizenship depending on the parent’s marital status versus their being legally separated, violated equal protection. Previously, applying rational basis review, the 9th had rejected the claim under Barthelemy v. Ashcroft, 329 F.3d 1062 (9th Cir 2003). However, the Supreme Court in Sessions v. Morales-Santana, 137 S. Ct 1678 (2017), had rejected the categorical assertion that immigration statutes must always be given rational basis review. Heightened scrutiny may be required if the situation—between parents based on gender—required. Ah, this panel decided, Barthelemy’s blanket use of rational basis may be irreconcilable with Morales-Santana, but that the statute is still given rational basis. The 9th concluded that heightened scrutiny is not required in all parental distinction cases. Here, rational basis is appropriate because a group or gender or status is not singled out or put in a suspect classification. Legal separation or sole custody does not reflect historical discrimination.  The reason is that Congress acted rationally in distinguishing between requiring both parents to be naturalized for derivative citizenship but only requiring one parent to be naturalized so long as the parents were legally separated, meaning that the naturalized citizen had sole custody. This rational basis is to protect the rights of the non-naturalized parent who may still have custody. Another valiant hard fought appeal by Kara Hartzler, Fed Defenders of San Diego.
Milam v. Harrington, No. 19-55213 (3-25-20)(Hurwitz w/Tashima & Friedland). This is an equitable tolling case. The 9th vacates the dismissal of a habeas and remands. The petitioner is serving a life sentence. Petitioner’s family retained counsel, and then subsequently retained another, to represent him in habeas. Each retained counsel blew deadlines. The state moved to dismiss the federal petition as untimely, and it was granted, despite the argument for equitable tolling. The 9th held that the district court erred in (1) categorically finding that retained counsel obviated equitable tolling; and (2) that ”true abandonment” by counsel was required.  As for the first claim, the petitioner raised his severe mental illness, which could have well contributed to his not being able to pursue his claims, or even track his petitions. Congrats to Mike Drake, Deputy Federal Defender, Cal C (Los Angeles).
May v. Ryan, No. 17-15603 (3-27-20)(Friedlandw/concurrences by Ikuta & Friedland; dissent by Block). The jury hung; the new trial set; the defendant released when the jury sent a note to the court and said they still wanted to deliberate. Defense counsel failed to object. The jury deliberated and returned guilty verdicts on sexual molestation. The defendant received a virtual life sentence. In this habeas appeal, petitioner got relief, only to have the panel grant rehearing, and now, in this opinion, relief is denied. The majority held that the failure to object was not IAC. Counsel could have reasoned that his best shot was on the trial that occurred rather than the retrial. Concurring, Ikuta stresses the limited role of federal habeas review. Such limited review is appropriate to the federal judicial system. Concurring, Friedland is dismayed at the guilty verdict, and chafes at the limited role of federal habeas review, able t9 grant relief only for the most egregious constitutional violations. Dissenting, Block argues that the majority fails to apply Strickland’s IAC analysis appropriately. Deference is given to counsel’s informed decisions.  Here, counsel’s failure to object was anything but informed. It was deficient. Robert McWhirter, a member of the Phoenix CJA panel, was on the petitioner’s brief with others. It is a tough disappointing loss after a valiant effort. 

Berryman v. Wong, No. 10-99004 (3-27-20)(per curium w/McKeown, Christen, and Watford). Under AEDPA deference, the 9th affirms the denial of petitioner’s challenge to his capital sentence. Counsel was not ineffective in failing to present additional family and social mitigation in the penalty phase. Counsel was also not ineffective in failure to present mental experts and psychological and psychiatric evidence to show that the murders were not premeditated.
US v. Dominguez, No. 14-10268 (4-7-20)(Silverman w/Anello; partial dissent by Nguyen). This is a pretty interesting Hobbs categorical issue. The panel affirms various convictions related to a Hobbs robbery, 924(c), money laundering, and an attempted Hobbs robbery as having sufficient evidence. The interesting categorical question as to Attempted Hobbs robbery is whether it is a categorical crime of violence under the elements clause of 924(c)(3)(A). The majority finds it fits because when a substantive offense is a crime of violence under the 924 section, an attempt is a COV because an actual substantive step occurred, and there was a specific intent. This holds true even if the substantive step was not a step involving violence. The section also explicitly includes completed crimes but felonies that have an “attempted use” of force. An attempted Hobbs Act robbery has to include physical violence or a threat of violence. The 9th arguably falls into line with two other circuits (7th and 11th).  Nguyen’s partial dissent argues that under a categorical approach, an attempted Hobbs Act robbery can be committed without any actual use, attempted use, or threatened use of physical force. It makes no sense to find that just because when the substantive offense is a COV, an attempt, under the categorical approach, also must be.
US v. Costanzo, No. 18-10291 (4-17-20)(Hawkins w/Owens & Bennett).  Note: This is an Az FPD case. The 9th affirms convictions in a bitcoin money laundering case. The defendant was convicted of using bitcoin to supposedly launder funds from a criminal enterprise. The appeal raised whether there was interstate commerce. The 9th held there was: the internet is an instrumentality that affects interstate commerce. There was also a website (hosted abroad) and…a digital wallet.  Alas, in the light most favorable to the government, there was sufficient evidence. Other issues were decided in a memorandum. This was a hard fought trial by AFPD Maria Weidner and a clever appeal by AFPD Dan Kaplan, both of the AZ FPD.  Although the defendant lost, he at least got to watch oral argument: he had already been released.

US v. Baldon, No. 18-10411 (4-21-20)(Bennett, Lee, & Piersol). This is a categorical guidelines decision involving California’s carjacking statute, 215. The defendant pled guilty to being a prohibited felon with a firearm. The sentencing court enhanced upwards for a prior COV: the state carjacking. The 9th found it was not a COV, but held a prior precedent was abrogated. In Stokeling v. US, 139 S. Ct 544 (2019), the Supremes revisited Johnson and clarified that “any force” is force enough for a
COV if it will overcome a victim’s resistance. Prior 9th precedent, Solorio-Ruiz v. Sessions, 881 F.3d 733 (9th Cir. 2018),  is irreconcilable with this holding and so is abrogated. However, the state statute is still not a categorical COV for a different reason.  The state statute is overbroad.  It criminalizes “threat to property” in carjacking and not simply threat to the person. The state defines its carjacking more broadly than 4B1.2(a)(1) by not limiting fear solely to persons. The state jury instructions so define the act. And, there is a state court decision. It is not beyond the realm of imagination, as the government argues.  The offense is also not a match with the enumerated offenses. Substantively, the 9th finds sufficient evidence that the defendant possessed the gun or knew of its presence. The sentence is vacated and remanded.

US v. Ray, No. 18-50115 and Bacon, No. 18-50120  (4-28-20)(Per Curiam; concurrence by Wardlaw). Insanity. Daubert. Expert opinion. Relevancy.  Defendant’s right to a defense. Prison stabbing.  This case has all those things. The takeaway is that (1) an expert in an insanity case does have not to state an ultimate opinion as to whether a defendant is legally insane because the jury decides that; but (2) the opinion still has to meet the Daubert requirements of being founded on science and is reliable; and (3) because the court used the wrong legal standard – abuse of discretion – in assessing the ultimate medical opinion (insanity) rather than whether it was reliable and relevant, a new trial is required rather than a limited remand to see if the expert’s opinion meets the reliability and Daubert gatekeeper standards. As alluded to above, this was a prison stabbing. The co-defendant (Bacon) wanted to mount an insanity defense. His expert opined about the defendant’s myriad of severe mental health issues, and that on the day of the incident is was reasonable that he was suffering from a dissociative state and lacked an ability to differentiate his actions. The prosecution moved to preclude because the conclusion of a “dissociative” state was unsupported in the literature. The court precluded because the expert failed to state an ultimate opinion, and may not be relevant. The 9th vacated and remanded, grudgingly, because of the wrong legal standard. The 9th held that the opinion was relevant and that the expert did not have to state an ultimate opinion. However — nudge nudge – the district court still has a Daubert gatekeeper role and should determine whether the opinion can be deemed reliable, considering all the factors of Daubert and FRE 702. The concurrence wishes the panel did not have to grant a new trial, but instead issue a limited remand to the district court to see, under the correct standard, whether Daubert was satisfied.

Mitchell v. US, No. 18-17031 (4-30-20)(Ikuta w/ concurrence by Christen & concurrence by Hurwitz). Editorial note: FPD Az was trial counsel on this capital matter. How can one learn of juror racial bias under Pena-Rodriguez v. Colorado, 137 S. Ct 855 (2017) unless one can approach jurors? “Not our problem,” opines the 9th, in affirming the denial of petitioner’s request to interview jurors. The 9th  acknowledges that while Pena-Rodriguez creates a new exception to Fed R. Evid 606(b), allowing jurors to testify as to their deliberations when it comes to racial bias, the case did not change the law of investigating or interviewing jurors absent “extraordinary circumstances.” No such extraordinary circumstances were presented here. This was not for want of trying by counsel. This case is a capital conviction for carjacking resulting in murder  on the Navajo Reservation. Counsel raised juror issues related to representation of Native Americans on the jury and other issues. Habeas counsel was prevented from interviewing jurors due to the local rule that barred interviewing jurors. Jurors could approach counsel; but not counsel approaching jurors. The panel did allow this issue to be raised under Rule 60(b). It was procedural as opposed to a second successive claim.  A small victory there. Christen concurred. She acknowledged the jurisdiction for the offense, but raises concerns that this was the first death case for an Indian upon Indian crime, not under 18 USC 1153 (Major Crimes), but by jurisdiction through carjacking resulting in death. Hurwitz concurred. He wrote to urge the current Administration to take a “fresh look” at the “wisdom” of imposing death on a crime committed by a Navajo on Navajos, entirely within the Navajo nation, when the Navajo nation opposed seeking the death penalty, the members of the victims’ family opposed the death penalty, and the US Attorney at the time of the offense opposed seeking the death penalty. Seeking such a penalty betrays the respect the federal government must afford tribal sovereignty. Some issues to consider: (1) Counsel should seek to change such local rules that bar counsel approaching jurors to afford a “bias exception.” (2) Counsel should object to the juror instruction at the discharge of the jury, stating that counsel cannot approach them, but they can approach counsel. Counsel should ask that jurors be specifically instructed to approach the Court or counsel as to any bias in deliberations.  (3) In the alternative, counsel can ask about bias. (4) Can Pena-Rodriguez be used as a separate instruction prior to deliberations as an admonition against prejudice and a duty to report such statements. (5) Can/should counsel specifically argue Pena-Rodriguez to the jury against bias. (6) Can Pena-Rodriguez be used as a way for expanded jury voir dire, or even counsel voir dire, because the court will tell the jurors they can approach counsel, at the end of the case. Deputy FPDs Jonathan Aminoff and Celeste Bacchi, FPD Cal Central (Los Angeles) fought hard on this issue and appeal.