Ninth Circuit

The Ninth Circuit reversed the convictions of two defendants who had been convicted of conspiracy to commit bank fraud and making false bank entries. The two bank executives had lied to shareholders about the bank’s financial status and had made unauthorized transfers to hide the bank’s poor performance. However, the defendants did not attempt to enrich themselves or deprive the bank of its funds. The Court affirmed the district court’s order of acquittal based on insufficient evidence. The bank did not have a cognizable property interest, under the fraud statute, in the accuracy of its financial interests. Nor was it deprived of its property interest in the defendants’ salaries since the defendants were doing the job they were paid for.

The Ninth Circuit reversed a district court’s denial of a motion for a sentence reduction under 18 USC 3582(c)(2), which applies when the Guidelines are retroactively amended and would have had the effect of lowering a defendant’s Guidelines range. While the district court recognized the defendant was eligible for a reduction, the Ninth Circuit held that the court had abused its discretion when it “erroneously concluded that it could not consider intervening developments affecting the mandatory minimum in its 3553(a) factor analysis.”

The Ninth Circuit reversed a defendant’s conviction for child pornography. The district court should have suppressed evidence where the Government engaged in a warrantless search of the defendant’s email attachments, which had been forwarded to the government by Google’s automated system. Since the government was the first to review these files, the private search exception did not apply.

The Ninth Circuit affirmed a defendant’s conviction for possession of a firearm by a nonimmigrant visa holder. The Court held that there was sufficient evidence that the defendant knew his visa possessed the characteristics of a non-immigrant visa where it explicitly authorized a temporary stay for work purposes.

The Ninth Circuit affirmed a defendant’s conviction under 18 USC 922(g)(4) for possession of a firearm by a person previously committed to a mental institution. The Court held that the defendant’s conviction did not require evidence that his prior commitment was based on a finding that he was dangerous, and the Court rejected his constitutional challenge to 922(g)(4) after applying intermediate scrutiny and holding that his Second Amendment rights were not impermissibly restricted.

The Ninth Circuit vacated a defendant’s conviction for importing drugs based on the prosecutor’s statements in closing regarding the standard of proving guilt beyond a reasonable doubt. The Court held that the prosecutor’s comparison of the standard to the confidence a person might need to have in eating a meal without fear of sickness or traveling to court without worrying about a car accident mischaracterized and “trivialized” the standard and caused substantial prejudice.

The Eleventh Circuit and Ninth Circuit created a circuit split concerning the proper interpretation of the safety valve under 18 USC 3553(f), particularly as it was amended by the First Step Act. The courts disagreed over the proper interpretation of the word “and” in the list of requirements a defendant must meet for their criminal history to allow them to qualify for the safety valve. The Ninth Circuit’s interpretation would allow far more defendants qualify.

The Ninth Circuit reversed the district court’s dismissal of an indictment charging the defendants with violating the Anti-Riot Act. The Court held that the provisions of the Anti-Riot prohibiting an “overt act” in furtherance of inciting a riot were not overbroad since it satisfied the imminence requirement under Brandenburg. While the Court held that the provisions of the Act prohibiting the “urging,” “organizing,” “promoting,” encouraging,” and “advocating” a riot were overbroad, the language prohibiting the “instigating” of a riot was not, and regardless, the Act was severable.

The Fifth, Ninth, and Tenth Circuits have issued opinions over the past few weeks holding that district courts have broad, independent discretion in determining whether an inmate has established “extraordinary and compelling reasons” warranting a sentence reduction under 18 USC 3582(c)(1)(A). The courts join the Second, Fourth, Sixth, and Seventh Circuits in recognizing the broad discretion of district courts, creating a substantial majority of the circuits. The other circuits have not yet addressed this issue.

The Ninth Circuit reversed a defendant’s conviction under the Clean Water Act based on the trial court’s failure to instruct the jury that the defendant had to have knowledge that he was discharging pollutants “into water.” The error was not harmless because it was unclear whether the defendant knew that the area in question was inundated with water when he discharged the pollutants. The Court also held that waters being “of the United States” is a jurisdictional element, that “waters of the United States” is not unconstitutionally vague, and that revised regulatory definitions of the phrase are not retroactive unless explicitly made so.