The FPD’s TGIF Roundup—Post-July-4 Catch-Up Edition

For the weeks of July 3 & 10, 2015

In this edition:

News to Use | Top of the Ninth |
SCOTUS Focus | Short Circuits | For the Bookworms

News to use

• What does Johnson mean for the past, present and future of the career offender guidelines? (SL&P)
• Johnson: Remembrance Of Illegal Sentences Past (Ninth Circuit Blog)
• More than a Residual Victory (Carl Gunn)
• The Supreme Court’s Half Step Toward Supporting the Ninth Circuit on Overbreadth of Controlled Substance Schedules (Carl Gunn)

Top of the Ninth

• U.S. v. Ye (offense of providing false information on passport, 18 U.S.C. §1542, does not require specific intent). UPDATE (7.20.15): More at Ninth Circuit Blog.
• U.S. v. Watson (previously useless DNA that can now be tested using new techniques is “newly discovered” for purposes of Innocence Protection Act).
• U.S. v. Chan (circuit’s decision in Kwan survives Padilla and did not establish new rule under Teague).
• U.S. v. Roach (even if “storage” of hazardous waste within 42 U.S.C. §6928(d)(2)(A) excludes “disposal” of it, defendant here was clearly involved in storage; nor did defendant “dispose” of them by abandoning premises in which waste containers were stored, which merely transferred custody of them to former landlord, leaving defendant liable as principal under §2(b)).
• U.S. v. Zepeda (en banc) (Indian status under Indian Major Crimes act requires proof that defendant has some quantum of Indian blood and affiliated with some federally recognized tribe) (tribe’s federally recognized status at time of charged conduct is question of law) (sentence was not unreasonable because it was mandated by §924(c)) (Kozinski and Ikuta concur to point out equal protection problems with applying criminal statutes based on race rather than affiliation).
• Maez v. Chavez (§2254) (petitioner was not entitled to tolling for period between denial of his petition by California superior court and his filing of petition in federal district court, even though he would have been entitled to it had he brought subsequent petition to higher state court instead) (panel laments California habeas procedures that “creat[e] work for judges and … snares for litigants”).
• U.S. v. Bryant (order denying reh’g en banc with concurrence and multiple dissents, in case where panel had reversed denial of motion to dismiss indictment charging domestic violence by habitual offender, 18 U.S.C. §117(a), because predicate convictions had been secured without guarantee of right to counsel minimally required by Sixth Amendment right).
• U.S. v. Salman (sufficiency argument raised only in supplemental brief was not waived, where both parties were able to brief and argue issue) (evidence was sufficient to show an insider breached fiduciary duty by disclosing information to trading relative, and that defendant knew of breach when he traded on it; government was not required to prove that insider disclosed information for personal benefit).
• U.S. v. Guzman-Ibarez (immigration judge erred in failing to advise defendant about possible relief under 8 U.S.C. §1182(c); AEDPA and IIRIRA provisions that would otherwise have foreclosed relief did not apply to defendant’s proceedings, which commenced before effective dates of those provisions) (IJ’s failure to advise of possible relief under §1182(h) was not due process violation, though J. Fisher dissents on this point) (remanded to determine prejudice). 
• U.S. v. Pocklington (district court lacked jurisdiction under 18 U.S.C. §3565(c) to extend probation because government did not get warrant or summons before probation expired). UPDATE (7.13.15): More at Ninth Circuit Blog.
• U.S. v. Garcia-Gonzalez (despite government-conceded due process violation, §1326 defendant failed to demonstrate that it was plausible he would have been allowed in expedited removal proceeding to withdraw application) (defendant was not entitled under Brady or discovery rules to have government produce statistics about how many people with backgrounds like his had been granted withdrawal of application of admission, because they could not practicably, accurately be compiled).
• Mitchell v. Valenzuela (§2254) (motions to stay and abey §2254 petitions for state court exhaustion are generally dispositive as to unexhausted claims, and since magistrate judge’s order here was dispositive, hearing the motion was beyond magistrate’s authority)
• Bastidas v. Chappell (§2254) (ditto Mitchell, supra) (magistrate did not lack authority to grant request to remove unexhausted claims from petition).
• U.S. v. Esparza (statement to DMV by registered owner of car used to import marijuana, relating that she had sold car to defendant six days before defendant’s arrest, was testimonial, and use of statement at trial was prejudicial Confrontation Clause violation). UPDATE (7.13.15): More at Ninth Circuit Blog.
• Benvin v. U.S. D. Ct. (mandamus) (district court ordered to desist from intermeddling with plea negotiations, where it insisted on greater restitution as condition of accepting guilty plea) (case ordered reassigned). 

SCOTUS focus

The Court issued Johnson GVRs in (at least) three Ninth Circuit cases: Mayer v. U.S., No. 14-35596; Chandler v. U.S., and Martinez v. U.S. Other decisions and orders this fortnight:

• Glossip v. Gross (death row inmates failed to show likelihood of success on merits of claim that Oklahoma’s use of midazolam as first drug in its lethal injection protocol violates Eighth Amendment, where state’s expert had researched the drug on the Internets) (twin dissents by Breyer-Ginsburg and Sotomayor-Ginsburg-Breyer-Kagan, the former inviting constitutional challenge to death penalty itself).
• Torres v. Lynch (cert. grant on whether a state offense “described in” a federal statute is an aggravated felony under 8 U.S.C. §1101(a)(43) when the federal statute has an interstate commerce element that the state offense doesn’t).
• Musacchio v. U.S. (cert. grant on whether law of the case requires sufficiency of evidence in criminal case to be measured against uncontested jury instructions that required greater showing than statute and indictment).
• Texas Dep’t Housing & Comm. Affairs v. Inclusive Communities Project, Inc. (civil) (there is such a thing as “unconscious prejudic[e]”).

Short circuits

• U.S. v. Reda (1st Cir.) (error in calculating loss, though it would not have pushed calculation below relevant loss guideline threshold, was not harmless, since district court still could have chosen to impose different sentence).
• U.S. v. McCrimon (2d Cir.) (per curiam) (to apply §3C1.2 reckless-endangerment-during-flight enhancement based on co-defendant’s foreseeable conduct, court must make finding that co-defendant in fact recklessly created the necessary risk, not merely that defendant could have reasonably foreseen that he would).
• U.S. v. Lowe (3d Cir.) (defendant’s backing away several steps from officers while they advanced, and keeping his hands immobile despite commands to move them, weren’t reasonable suspicion for stop). (H/T)
• U.S. v. Parker (4th Cir.) (government’s failure to disclose witness’s SEC fraud investigation it learned of the Friday before trial required new trial under Brady). (H/T)
• U.S. v. Clay (5th Cir.) (district court’s refusal to vary down from career guideline sentence due to lack of circuit “guidance” on the issue was abuse of discretion because the guidelines are, all of them, really and truly, advisory). (H/T)
• U.S. v. Duke (5th Cir.) (per curiam) (lifetime ban on internet access and contact with minors were unreasonable) (“[T]he ubiquity and importance of the Internet to the modern world makes an unconditional, lifetime ban unreasonable.”).
• Williams v. Mitchell (6th Cir.) (§2254) (on review of Atkins claim, state court’s refusal to consider evidence of intellectual disability dating back to when petitioner was a minor was unreasonable application of CEFL under Atkins/Lott), ). (H/T)
• U.S. v. Darden (6th Cir.) (per curiam) (unpub’d) (Johnson easily applies to career offender guideline’s residual clause, which like ACCA’s is unconstitutionally vague). (H/T)
• U.S. v. Leo (7th Cir.) (911 caller’s report that defendant had attempted a burglary and possessed a gun was not probable cause to search his backpack after he’d been stopped and cuffed; government waived Riley, inevitable discovery, and other possible defenses by not raising them except for passing reference in a footnote in answering brief). (H/T)
• U.S. v. Jackson (7th Cir.) (obstruction enhancement was improper where district court had found that defendant had been untruthful during testimony because she’d “perhaps com[e] to believe [her] lies to [her]self”).
• McInerney v. King (10th Cir.) (§1983) (open front and garage doors, floor strewn with belongs, were no basis for emergency entry into home, where there was no broken glass, and officers never tried to call the home or plaintiff’s cell phone). (H/T)
• U.S. v. Kupfer (10th Cir.) (obstruction enhancement doesn’t apply when defendant simply fails to speak up and disclose crime, here, tax evasion). (H/T)
• U.S. v. Cordova (10th Cir.) (no good faith reliance on warrant for search at defendant’s residence, where affidavit was based on nothing more than a scheduled 21-month-old high-volume drug delivery (which never actually came to pass) to an unnamed person in a car belonging to another person who months later was seen, once, driving the car into the residence’s garage). (H/T)
• U.S. v. Cavallo (11th Cir.) (district court violated Sixth Amendment by prohibiting defendant from speaking to counsel “about [his] case” except for discussing “constitutional rights,” during three days he was on witness stand and intervening overnight recesses) (district court erred in failing to offset restitution by value of proceeds from properties sold in fraudulent scheme). (H/T)
• U.S. v. Aunspaugh (11th Cir.) (in “honest services” fraud case, failure in “kickback” instruction to distinguish mere self-dealing required reversal, even though evidence supporting self-dealing theory was “weak at best”; money laundering conviction predicated on mail fraud conviction also required reversal). (H/T)

For the bookworms

• “Criminal Law 2.0—Preface to the 44th Annual Review of Criminal Procedure,” Hon. Alex Kozinski, 44 Geo. L.J. Ann. Rev. Crim. Proc (2015) (pdf). (H/T)
• “Retroactivity and the Uncertain Application of Johnson v. United States: Is the Rule ‘Constitutional’ on Post-Conviction Review?,” Gray R. Proctor, 97-14 Crim. L. Rep. 1 (2015) (pdf). (H/T)
• Issue: Assessing USSC Amendments to Economic Crime Guidelines, Vol. 27-5 Fed. Sent’g Rep. ___ (June 2015) (TOC).
• “The Lost ‘Effects’ of the Fourth Amendment: Giving Personal Property Due Protection,” Maureen E. Brady, ___ Yale L.J. ___ (forthcoming) (SSRN). (H/T)
• “ Reclaiming the Importance of the Defendant’s Testimony,” Anna Roberts, 83 U. Chi. L. Rev. ___ (2016) (SSRN). (H/T)
• “Jury Sentencing and Juveniles: Eighth Amendment Limits and Sixth Amendment Rights,” Sarah French Russell, 56 B.C. L. Rev. 553 (2015) (SSRN). (H/T)
• “‘Where Were Your Clothes?’ Eliciting Descriptions of Clothing Placement from Children Alleging Sexual Abuse in Criminal Trials and Forensic Interviews,” Stacia N. Stolzenberg & Thomas D. Lyon, working paper (SSRN). (H/T)
• “Prison Abolition and Grounded Justice,” Allegra M. McLeod, 62 U.C.L.A. 1156 (2015) (abstract). (H/T)
• “Metadata, Traffic Data, Communications Data, Service Use Information... What is the Difference? Does the Difference Matter? An Interdisciplinary View from the UK,” Sophie Stalla-Bourdillon et al., working paper (SSRN). (H/T)
• “Down by Law: Police Officers as Gang Sociology Experts,” Magdalena Ridley, 52-4 Crim. L. Bull. ___ (2016) (SSRN). (H/T)
• “Note: A Reassessment of Common Law Protections for "Idiots",” Michael Clemente, 124 Yale L.J. 2746 (2015) (article).
• “Due Process Limits on Accomplice Liability,” Michael Heyman, 99-3 Minn. L. Rev. ___ (2015) (SSRN).
• “Gideon's Servants and the Criminalization of Poverty,” Alexandra Natapoff, 12 Ohio St. J. Crim. L. 445 (2015) (SSRN). (H/T)
• “ A Comment on the Supreme Court's Decision in Ohio v. Clark: The Court's Confrontation Clause Jurisprudence Evolves,” Paul F. Rothstein, working paper (2015) (SSRN). (H/T)
• “Note: Juvenile Sentencing in Illinois: Addressing The Supreme Court Trend Away from Harsh Punishments for Juvenile Offenders,” Maureen Dowling, working paper (2015) (SSRN). (H/T)
• “Deterrence and the Optimality of Rewarding Prisoners for Good Behavior,” A. Mitchell Polinsky, ___ Int’l Rev. L. & Econ. ___ (forthcoming) (SSRN). (H/T)
• “The Declaration, the Constitution, and the Interpreter's Dilemma: An Essay on Historical and Iconic Meaning,” Daniel A. Farber, working paper (SSRN). (H/T)
• “Difficulty of Amendment and Interpretive Choice,” Andrew Coan & Anuj C. Desai, working paper (SSRN). (H/T)
• “Emotion, Authority, and Death: (Raced) Negotiations in Mock Capital Jury Deliberations,” Mona Lynch & Craig Haney, 40 Law & Soc. Inquiry 377 (2015) (Wiley).
• “Legal Reasoning, Good Citizens, and the Criminal Law,” R. A. Duff, working paper (SSRN). (H/T)
• “Counting on Quality: The Effect of Merits Brief Quality on Supreme Court Opinion Content,” Adam Feldman, working paper (SSRN). (H/T)

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Suggestions or corrections? Email Michael Drake.