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2008-02-15

United States Court of Appeals for the District of Columbia Circuit

United States v. Branham

United States v. Branham, 515 F.3d 1268 (2008)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_14

must be submitted to a jury, and proved beyond a reasonable doubt.

In short, the defendant’s knowledge of the type of drug at issue in his offense is not a “fact that increases the penalty for a crime beyond the prescribed statutory maximum,” and hence is not a fact that “

2009-02-25

United States Court of Appeals for the Ninth Circuit

United States v. Banks

United States v. Banks, 556 F.3d 967 (2009)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_19

construction or interpretation of a statute,

’ ” Finally, we review de novo the district court’s “

2002-11-07

United States Court of Appeals for the Ninth Circuit

United States v. Vasquez

United States v. Vasquez, 50 F. App'x 375 (2002)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_2

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

MEMORANDUM Abel Vasquez appeals his conviction and sentence -under 21 U.S.C. §§ 846, 841(a)(1), 843(a)(7), and 18 U.S.C. § 2, for conspiracy to aid and abet the manufacture of methamphetamine, and to distribute chemicals used to manufacture a controlled substance, knowing or having reasonable cause to believe that the chemicals be used to manufacture a controlled substance; aiding and abetting the manufacture of a substance containing a detectable amount of methamphetamine; and distributing chemicals used to manufacture a controlled substance, knowing or having reasonable cause to believe that the chemicals would be used to manufacture a controlled substance. Vasquez challenges his conviction on several different grounds. Vasquez first argues that the evidence presented at trial was insufficient to sustain a guilty verdict against him. Next, he contends that the district court erred by failing to instruct the jury on critical elements of the offenses, by failing to grant his motion for judgment of acquittal, by sentencing him based on a quantity of drugs not found by the jury to be attributable to him, and by admitting the out-of-court statements of a co-defendant as a co-conspirator’s statement in furtherance of the conspiracy. Finally, Vasquez alleges that he obtained ineffective assistance of counsel by trial counsel’s failure to request a jury instruction relating to “reasonable cause to believe.” We affirm the district court on all the issues raised by Vasquez. There is sufficient evidence to support a conviction if, “

2002-06-04

United States Court of Appeals for the Ninth Circuit

United States v. Bert

United States v. Bert, 40 F. App'x 466 (2002)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_4

Apprendi did not change the long established rule that the government need not prove that the defendant knew the type and amount of a controlled substance that he imported or possessed; the government need only show that the defendant knew that he imported or possessed some controlled substance.

” Such testimony does not amount to an “explicit opinion” or inference as to a defendant’s mental state, nor does it necessarily compel any conclusion in that regard. Thus, the district court did not err in admitting Delaney’s testimony. IV. Bert’s Motion to Acquit for Insufficient Evidence We have expressly held that “crack” cocaine “is synonymous with ‘rock’ cocaine.” Both Paskwietz and Delaney testified that the substance at issue was “rock” cocaine, either by directly identifying it as such or by agreeing with the examiner’s characterization of the substance as “rock” cocaine. Thus, there was ample evidence from which a rational finder of fact could have concluded that Bert possessed “crack” cocaine. V. Bert’s Knowledge of the Type and Quantity of Drugs “

2002-06-04

United States Court of Appeals for the Ninth Circuit

United States v. Bert

United States v. Bert, 40 F. App'x 466 (2002)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_14

Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.

United States v. Buckland, 289 F.3d 558 (9th Cir.2002) (en banc) ("the days of semantical hair splitting between 'elements of the offense' and'sentencing factors’ are over”) (citations omitted), petition for cert. filed, Apr. 18, 2002 (No. 01-9813). See id. 25 . United States v. Summers, 268 F.3d 683, 688 (9th Cir.2001) (quoting United States v. Tighe, 266 F.3d 1187, 1190 (9th Cir.2001)), cert. denied, - U.S. -, 122 S.Ct. 1182, 152 L.Ed.2d 124 (2002); see also Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 ("

2002-07-01

United States Court of Appeals for the Ninth Circuit

United States v. Shelby

United States v. Shelby, 40 F. App'x 599 (2002)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_4

Apprendi did not change the long established rule that the government need not prove that the defendant knew the type and amount of a controlled sub-stance____

MEMORANDUM Shelby’s argument that 21 U.S.C. § 841(b) is facially unconstitutional was recently rejected by this court. United States v. Buckland, 277 F.3d 1173 (9th Cir.2002)(en banc). Moreover, the application of this statute to him was not unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Although the jury was not instructed to determine the quantity of drugs Shelby distributed, it was required to find that he had distributed a detectable amount of cocaine base, which carries a penalty of zero to twenty years. 21 U.S.C. §§ 802(6), 812(c) and 841(b). Because Shelby was sentenced to less than twenty years, the failure to submit the quantity to the jury did not affect his sentence or his “substantial rights.” United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). This court has previously held that the government need only prove that the defendant knows he is dealing in some form of controlled substance, and not mens rea with respect to the specific type and quantity of drug. “

2002-06-07

United States Court of Appeals for the Ninth Circuit

United States v. Varela

United States v. Varela, 40 F. App'x 490 (2002)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_4

Apprendi did not change the long established rule that the government need not prove that the defendant knew the type and amount of a controlled substance that he imported or possessed; the government need only show that the defendant knew that he imported or possessed some controlled substance.

MEMORANDUM Hector Varela appeals his conviction for knowingly and intentionally importing marijuana into the United States, in violation of 21 U.S.C. §§ 952 and 960, pursuant to a conditional plea agreement. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Varela’s argument that 21 U.S.C. § 960 is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), is foreclosed by our recent decisions in United States v. Mendozar-Paz, 286 F.3d 1104, 1109-10 (9th Cir. 2002) (applying United States v. Buckland, 277 F.3d 1173 (9th Cir.2002) (en banc), to hold that § 960 is constitutional). We recently determined that “

2002-07-09

United States Court of Appeals for the Ninth Circuit

United States v. Hernandez-Loya

United States v. Hernandez-Loya, 41 F. App'x 99 (2002)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_14

[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.

MEMORANDUM Hernandez-Loya appeals the district court’s denial of his motion to dismiss an indictment that charged him with, inter alia, importation of marijuana in violation of 21 U.S.C. §§ 952, 960. Hernandez^ Loya pleaded guilty to violating 21 U.S.C. § 960, but preserved his right to appeal the constitutionality of that statute. Because the parties are familiar with the facts, we will not recite them in detail except as necessary. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. Hernandez-Loya first argues that 21 U.S.C. § 960 is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). This court has rejected that argument. See United States v. Mendoza-Paz, 286 F.3d 1104, 1109 (9th Cir.2002). The Supreme Court held in Apprendi that “

2002-07-09

United States Court of Appeals for the Ninth Circuit

United States v. Hernandez-Loya

United States v. Hernandez-Loya, 41 F. App'x 99 (2002)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_3

A defendant charged with importing or possessing a drug is not required to know the type and amount of the drug,

” 530 U.S. at 490. Here, Hernandez-Loya agreed pursuant to the plea agreement that he imported 45.036 kilograms of marijuana. The district court sentenced Hernandez-Loya to 12 months and 1 day in prison and three years of supervised release, far less than the statutory maximum of five years for importing fewer than 50 kilograms of marijuana. 21 U.S.C. § 960(b)(4). Accordingly, Apprendi is not implicated. See Carranza, 289 F.3d at 643. “

2002-07-23

United States Court of Appeals for the Ninth Circuit

United States v. Zamorano-Flores

United States v. Zamorano-Flores, 41 F. App'x 942 (2002)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_14

Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.

MEMORANDUM Defendant-Appellant Francisco Javier Zamorano-FIores (“Appellant”) appeals the district court’s sentence and entry of judgment. This Court has jurisdiction under 28 U.S.C. § 1291, and we affirm. The statutes which Appellant challenge, 21 U.S.C. §§ 952 and 960, are facially constitutional. United States v. Mendoza-Paz, 286 F.3d 1104, 1109-10 (9th Cir.2002); see also, United States v. Buckland, 289 F.3d 558, 563-68 (9th Cir.2002) (en banc), cert. den. — U.S. -, 122 S.Ct. 2314, 152 L.Ed.2d 1067 (2002); United States v. Carranza, 289 F.3d 634, 643 (9th Cir.2002). Appellant also makes an as-applied challenge to the sentence he received under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L. “

2002-07-23

United States Court of Appeals for the Ninth Circuit

United States v. Zamorano-Flores

United States v. Zamorano-Flores, 41 F. App'x 942 (2002)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_8

[A] defendant charged with importing and possessing a controlled substance need not know the exact nature of the substance with which he was dealing. Instead, a defendant can be convicted under § 841 and § 960 if he believes he has some controlled substance in his possession.

” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. Appellant was never exposed to a sentence greater than 240 months imprisonment, the maximum to which he constitutionally may have been exposed under § 960(b)(1)- Because the district court in this case did not exceed the maximum sentence permitted for the specified amount of cocaine, Appx'exidi is not implicated. Finally, Zamorano-Flores argues that the grand jury should have been instructed to find, and the government should have been required to prove, that he “knowingly” imported a particular quantity and type of controlled substance. See, e.g., United States v. Ramirez-Ramirez, 875 F.2d 772, 774 (9th Cir.1989)(“[A] defendant charged with importing and possessing a controlled substance need not know the exact nature of the substance with which he was dealing.

2002-07-10

United States Court of Appeals for the Ninth Circuit

United States v. Frye

United States v. Frye, 41 F. App'x 111 (2002)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_4

Apprendi did not change the long established rule that the government need not prove that the defendant knew the type and amount of a controlled substance that he imported or possessed.

SUPPLEMENTAL MEMORANDUM Defendant challenges his sentence and guilty plea to violating 21 U.S.C. § 841(a)(1) on several grounds. “

2002-07-10

United States Court of Appeals for the Ninth Circuit

United States v. Frye

United States v. Frye, 41 F. App'x 111 (2002)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_4

that the defendant knew that he imported or possessed some controlled substance.

” The government only needs to show “

2002-06-26

United States Court of Appeals for the Ninth Circuit

United States v. Camara

United States v. Camara, 42 F. App'x 39 (2002)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_1

To be guilty of aiding and abetting another person, it is necessary that the defendant in some sort associate himself with the venture, that he participate in it as something that he wishes to bring about, that he seek by his action to make it succeed.

Even if the rule announced in Apprendi extends to mandatory minimum sentences, see Harris v. United States, — U.S. —, 122 S.Ct. 663, 151 L.Ed.2d 578 (2001) (granting certiorari on this question), any error did not affect Camara’s substantial rights. First, Camara stipulated to amounts that far exceed the statutory minimum quantity. See, e.g., Buckland, 289 F.3d at 569. Second, we recently held that drug type need not be submitted to the jury. See United States v. Carranza, 289 F.3d 634, 643-44 (9th Cir.2002). Thus, Camara’s Apprendi argument is without merit. AFFIRMED. BERZON, Circuit Judge, dissenting. BERZON, Circuit Judge. Although I agree with the majority regarding every other issue, I would reverse because I do not think there was substantial evidence to prove Camara’s intent to distribute methamphetamine or his intent to aid and abet the transactions. Viewing the evidence in the light most favorable to the prosecution, I would conclude that no rational trier of fact could have found the essential elements of possession with intent to distribute or distribution beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). 1. Conviction as a Principal. Although the testimony, taken as true, establishes Camara’s knowledge that drug transactions were taking place, it does not establish his intent to deliver a prohibited drug to another. There was no evidence that Camara himself possessed the drugs during the July 14 transaction for which he was convicted. According to the testimony, before the transaction on July 16, Ca-mara did hold the envelope containing the drugs for a moment and then hand it back to one of his co-defendants. Holding drugs and returning them to the person to whom they belong cannot, however, amount to distribution or intent to distribute. Thus, there is insufficient evidence to uphold Camara’s convictions on a direct liability theory. 2. Conviction “

2002-05-23

United States Court of Appeals for the Ninth Circuit

United States v. Llanez-Espinoza

United States v. Llanez-Espinoza, 40 F. App'x 446 (2002)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_4

Apprendi did not change the long established rule that the government need not prove that the defendant knew the type and amount of a controlled substance that he imported or possessed; the government need only show that the defendant knew that he imported or possessed some controlled substance.

United States v. Davila-Escovedo, 36 F.3d 840, 843 (9th Cir.1994). The weight of the suitcases and the number of bags tend to disprove Defendant’s argument that only Valdez-Lopez intended to distribute the marijuana. Moreover, Defendant and Val dez-Lopez were sitting next to each other on the bus, and both handed a border agent similar counterfeit documents. E. Constitutionality of 21 U.S.C. § 81-1 Defendant further asserts that, under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the drug statute, 21 U.S.C. § 841, is unconstitutional on its face. This argument is now foreclosed by United States v. Buckland, 289 F.3d 558 (9th Cir.2002) (en banc). However, as this court recently explained, “

2002-06-05

United States Court of Appeals for the Ninth Circuit

United States v. Estrada-Rendon

United States v. Estrada-Rendon, 40 F. App'x 478 (2002)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_4

Apprendi did not change the long-established rule that the government need not prove that the defendant knew the type and amount of a controlled substance that he imported or possessed; the government need only show that the defendant knew that he imported or possessed some controlled substance.

In United States v. Velasquez, 980 F.2d 1275, 1278-79 (9th Cir.1992), we held that the use of an almost identical “firmly convinced” instruction for reasonable doubt did not indicate a lesser burden than that suggested “by the use of the term ‘reasonable doubt’ standing alone” and was, therefore, not reversible error. “

2002-05-31

United States Court of Appeals for the Ninth Circuit

United States v. Hafoka

United States v. Hafoka, 40 F. App'x 461 (2002)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_4

Ap-prendi did not change the long established rule that the government need not prove that the defendant knew the type and amount of a controlled substance that he ... possessed; the government need only show that the defendant knew that he ... possessed some controlled substance.

MEMORANDUM Siokatame Hafoka, Richard Brown Tau-moepeau, and Sosaia Liufau appeal their convictions and sentences for conspiracy to distribute and possess with intent to distribute in excess of 5 kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. We affirm. Because the parties are familiar with the facts, we recount them here only as necessary to explain our decision. 1. This argument is foreclosed by the recent decision in United States v. Carranza, 289 F.3d 634, 2002 WL 841175, at 7 (9th Cir. May 3, 2002) (“Ap-prendi did not change the long established rule that the government need not prove that the defendant knew the type and amount of a controlled substance that he... possessed; the government need only show that the defendant knew that he... possessed some controlled substance.

2002-10-09

United States Court of Appeals for the Ninth Circuit

United States v. Sua

United States v. Sua, 307 F.3d 1150 (2002)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_14

[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.

Id. at 87, 83 S.Ct. 1194. Because the evidence was not suppressed by the government, but was excluded from evidence by the district court, there was no Brady violation. In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Supreme Court held that “

2002-10-07

United States Court of Appeals for the Ninth Circuit

United States v. Cesena de Garcia

United States v. Cesena de Garcia, 49 F. App'x 102 (2002)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_4

Apprendi did not change the long established rule that the government need not prove that the defendant knew the type and amount of a controlled substance that he imported or possessed; the government need only show that the defendant knew that he imported or possessed some controlled substance.

MEMORANDUM Sandra Elena Cesena de Garcia pled guilty to one count of importation of marijuana in violation of 21 U.S.C. §§ 952 and 960. The district court sentenced Cesena de Garcia to six months in custody. Cesena de Garcia appeals, and we affirm. Cesena de Garcia’s contention that her conviction must be reversed because Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), renders §§ 952 and 960 unconstitutional is foreclosed by United States v. Buckland, 289 F.3d 558 (9th Cir.2002) (en banc) and United States v. Mendoza-Paz, 286 F.3d 1104, 1109-10 (9th Cir.2002). “

2002-10-22

United States Court of Appeals for the Ninth Circuit

United States v. Aguiniga-Heredia

United States v. Aguiniga-Heredia, 49 F. App'x 152 (2002)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_4

Apprendi did not change the long established rule that the government need not prove that the defendant knew the type and amount of a controlled substance that he imported or possessed; the government need only show that the defendant knew that he imported or possessed some controlled substance.

MEMORANDUM Alfredo Aguiniga-Heredia pled guilty to one count of importation of marijuana in violation of 21 U.S.C. §§ 952 and 960. The district court sentenced Aguiniga-Heredia to eighteen months in custody. Aguiniga-Heredia appeals, and we affirm. Aguiniga-Heredia’s argument that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), renders §§ 952 and 960 unconstitutional is foreclosed by United States v. Buckland, 289 F.3d 558 (9th Cir.2002) (en banc) and United States v. Mendoza-Paz, 286 F.3d 1104, 1109-10 (9th Cir.2002). “

2002-08-14

United States Court of Appeals for the Ninth Circuit

United States v. Ortiz-Partida

United States v. Ortiz-Partida, 44 F. App'x 239 (2002)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_3

[a] defendant charged with importing or possessing a drug is not required to know the type and amount of drug.

S. 910, 121 S.Ct. 259, 148 L.Ed.2d 187 (2000); see United States v. Arzate-Nunez, 18 F.3d 730, 737 (9th Cir.1994) (stating that “[a] defendant who enters a conditional guilty plea pursuant to Fed.R.Crim.P. 11(a)(2) must state in writing any issues he wishes to reserve for appeal and may lose the right to appeal issues not so expressly reserved”). Appellant’s facial and as-applied challenges to the constitutionality of the statute of conviction are foreclosed by our decisions in United States v. Carranza, 289 F.3d 634 (9th Cir.2002), and United States v. Mendoza-Paz, 286 F.3d 1104 (9th Cir. 2002). See Carranza, 289 F.3d at 643 (holding that an as-applied challenge failed because the defendant was never exposed to a sentence beyond the prescribed statutory maximum); Mendoza-Paz, 286 F.3d at 1110 (rejecting a facial challenge to the constitutionality of § 960). We reject Appellant’s argument regarding the statutory minimum sentence because (1) his sentence was well below the statutory minimum, and (2) Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), does not apply to mandatory minimum sentences, Harris v. United States, -U.S.-, 122 S.Ct. 2406, 2417-19, 153 L.Ed.2d 524 (2002); United States v. Hitchcock, 298 F.3d 1021 (9th Cir.2002), amending 286 F.3d 1064 (9th Cir.2002). Unlike the cases on which Appellant relies, the indictment in the instant case included every element of the offense and was not deficient; furthermore, we have held that “

2002-08-20

United States Court of Appeals for the Ninth Circuit

United States v. Mohr

United States v. Mohr, 44 F. App'x 751 (2002)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_16

The base offense level for guideline sentencing may be determined by the volume of the drug actually imported, whether or not the defendant knows either the volume or the nature of the substance — if he knows only that he is importing a controlled substance.

See United States v. Mendoza-Paz, 286 F.3d 1104, 1109-10 (9th Cir.2002) (holding that 21 U.S.C. § 960 is constitutional on its face); United States v. Carranza, 289 F.3d 634, 644 (9th Cir.2002) (“

2002-08-12

United States Court of Appeals for the Ninth Circuit

United States v. Ramirez

United States v. Ramirez, 44 F. App'x 210 (2002)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_4

Apprendi did not change the long-established rule that the government need not prove that the defendant knew the type and amount of a controlled substance that he imported or possessed; the government need only show that the defendant knew that he imported or possessed some controlled substance.

MEMORANDUM Lasaro Ramirez pled guilty to one count of importation of marijuana in violation of 21 U.S.C. §§ 952 and 960. At sentencing, Ramirez moved to dismiss the indictment in light of the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The district court denied the motion and sentenced Ramirez to 24 months in prison and three years of supervised release. Ramirez appeals, and we affirm. We review the sufficiency of an indictment de novo. United States v. Pernillo-Fuentes, 252 F.3d 1030, 1032 (9th Cir. 2001). Ramirez argues that the district court should have dismissed the indictment because the drug statutes under which he was indicted, 21 U.S.C. §§ 952 and 960, are unconstitutional under Apprendi. That argument, however, is foreclosed by our recent decisions in United States v. Buckland, 277 F.3d 1173 (9th Cir.2002) (en banc), and United States v. Mendoza-Paz, 286 F.3d 1104 (9th Cir.2002). We recently held in United States v. Carranza, 289 F.3d 634 (9th Cir.2002), that “

2002-09-26

United States Court of Appeals for the Ninth Circuit

United States v. Toro

United States v. Toro, 46 F. App'x 896 (2002)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_4

Apprendi did not change the long established rule that the government need not prove that the defendant knew the type and amount of a controlled substance that he imported or possessed ....

SUPPLEMENTAL MEMORANDUM Appellant Toro challenges his convictions under 21 U.S.C. §§ 841, 960 on the ground that the statutes are rendered unconstitutional by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In an earlier memorandum disposition, we resolved all but the Apprendi issues, which we ordered deferred pending resolution of United States v. Buckland, 289 F.3d 558 (9th Cir.2002) (en banc). The drug statutes are constitutional. See Buckland, 289 F.3d at 563-68; see also United States v. Mendoza-Paz, 286 F.3d 1104, 1109-10 (9th Cir.2002). Toro also argues that the grand jury should have been instructed to find, and the government should have been required to prove, that he “knowingly” imported a particular quantity and type of controlled substance. This has never been the law. See, e.g., United States v. Ramirez-Ramirez, 875 F.2d 772, 774 (9th Cir.1989). See United States v. Carranza, 289 F.3d 634, 644 (9th Cir.2002) (“Apprendi did not change the long established rule that the government need not prove that the defendant knew the type and amount of a controlled substance that he imported or possessed.... ”).

2003-01-27

United States Court of Appeals for the Fifth Circuit

United States v. Gamez-Gonzalez

United States v. Gamez-Gonzalez, 319 F.3d 695 (2003)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_14

any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be ... proved beyond a reasonable doubt

For example: Gamez was extremely nervous at the checkpoint, see Jones, 185 F.3d at 464 (nervousness may support inference of guilty knowledge if facts suggest nervousness derived from consciousness of criminal behavior); he had $1,600, an amount consistent with that advanced to drivers transporting cocaine; the hatch for the hidden compartment had been recently sealed and there was a concomitant two-hour gap between when Gamez should have arrived at the checkpoint and when he did arrive; there was evidence Gamez tampered with the truck’s title and that the truck did not contain a hidden compartment at the time of the previous owners’ possession; and the jury could reasonably infer Gamez would not have been allowed to transport cocaine worth almost $9 million if he was not part of the trafficking scheme, see, e.g., United States v. Garcia-Flores, 246 F.3d 451, 455 (5th Cir.2001). B. Gamez was charged, inter alia, with possession of, with intent to distribute, more than five kilograms of cocaine, in violation of § 841(a)(1) and (b)(1)(A). The drug type and quantity were submitted to the jury and proved beyond a reasonable doubt. Tre-Apprendi our court held that the knowledge required for a § 841 conviction is only that the substance possessed was a controlled substance. United States v. Valenciar-Gonzales, 172 F.3d 344, 345 (5th Cir.), cert. denied, 528 U.S. 894, 120 S.Ct. 222, 145 L.Ed.2d 187 (1999). Apprendi held: “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be... proved beyond a reasonable doubt”.

2003-01-27

United States Court of Appeals for the Fifth Circuit

United States v. Gamez-Gonzalez

United States v. Gamez-Gonzalez, 319 F.3d 695 (2003)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_4

Apprendi did not change the long established rule that the government need not prove that the defendant knew the type and amount of a controlled substance that he imported or possessed ....

530 U.S. at 490, 120 S.Ct. 2348. The penalty is, instead, based solely on the type and quantity involved in the unlawful act. As stated in Valencia-Gonzales, § 841 employs a “strict liability punishment” scheme. 172 F.3d at 346. In sum, for § 841, the knowledge required for the act to be unlawful does not apply to the penalty. United States v. Carranza, 289 F.3d 634, 644 (9th Cir.)(“Apprendi did not change the long established rule that the government need not prove that the defendant knew the type and amount of a controlled substance that he imported or possessed.... ”), cert. denied, — U.S.-, 123 S.Ct. 572, - L.Ed.2d - (2002); United States v. Collazo-Aponte, 281 F.3d 320, 326 (1st Cir.) (“[NJothing in the statutory language of § 841(b) supports a mens rea requirement”.), cert. denied, — U.S. -, 123 S.Ct. 275, 154 L.Ed.2d 117 (2002); United States v. Barbosa, 271 F.3d 438, 458 (3rd Cir.2001) (“We believe that the structure of the drug statutes and the policies behind them show that the Government’s mens rea burden has not changed with the advent of Apprendi.

2002-05-21

United States Court of Appeals for the Ninth Circuit

United States v. Rubio-Salazar

United States v. Rubio-Salazar, 35 F. App'x 564 (2002)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_3

A defendant charged with importing or possessing a drug is not required to know the type and amount of drug.

ORDER This ease is resubmitted for decision as of May 15, 2002. MEMORANDUM Defendant Victor Manuel Rubio-Salazar appeals his conviction, after a jury trial, of importing marijuana (in violation of 21 U.S.C. §§ 952 and 960) and of possessing marijuana with the intent to distribute it (in violation of 21 U.S.C. § 841(a)(1)). He makes five arguments. 1. Defendant first claims that his own oral statements to Customs agents were admitted improperly as evidence of “other acts,” Fed.R.Evid. 404(b). Defendant did not object to admission of the statements at trial, so we review for plain error. See Fed.R.Evid. 103(d); Fed.R.Crim.P. 52(b). Defendant’s own statements are party admissions, which are not hearsay and which generally are admissible under Federal Rule of Evidence 801(d)(2). See United States v. Bibo-Rodriguez, 922 F.2d 1398 (9th Cir.1991) (distinguishing “other acts” evidence from party admissions). Even if the statements are subject to analysis under Rule 404(b), there was no plain error. The evidence tended to prove Defendant’s knowledge, intent, and opportunity. 2. Next, Defendant argues that § 841 is facially unconstitutional. His argument is foreclosed by United States v. Buckland, 2002 WL 857751, at *10 (9th Cir. May 7, 2002) (en banc). 3. Defendant also argues that the indictment had to allege his knowledge of drug type and quantity. “

2002-12-30

United States Court of Appeals for the Ninth Circuit

United States v. Hernandez

United States v. Hernandez, 322 F.3d 592 (2002)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_14

‘[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum,’ whether the statute calls it an element or a sentencing factor, ‘must be submitted to a jury, and proved beyond a reasonable doubt.’

Buckland, 289 F.3d at 566 (quoting Apprendi, 530 U.S. at 494, 120 S.Ct. 2348). Hernandez contends that Buckland’s minimizing the distinction between “elements of the offense” and “sentencing factors” lacks validity in light of the Supreme Court’s decision in Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002). Harris is consistent with Buckland and holds that “ ‘[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum,’ whether the statute calls it an element or a sentencing factor, ‘must be submitted to a jury, and proved beyond a reasonable doubt.

2002-12-30

United States Court of Appeals for the Ninth Circuit

United States v. Hernandez

United States v. Hernandez, 322 F.3d 592 (2002)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_3

A defendant charged with importing or possessing a drug is not required to know the type and amount of the drug.

”). Thus, Harris does not by its terms supplant the fundamental canon of constitutional avoidance: Courts can and should continue to adopt statutory interpretations, when feasible, that will avoid serious constitutional issues. Avoiding such issues, which are considered only when necessary, is a measure of restraint by the Judiciary and a measure of respect for Congress as a coordinate branch. In Buckland, the court observed that it was unclear from the language of § 841 whether Congress intended drug type and quantity to be determined by the judge or the jury, and under what burden of proof. Buckland, 289 F.3d at 567. Because construing § 841 as requiring the sentencing judge to determine drug type and amount posed serious constitutional problems, and because a constitutional reading of § 841 was “fairly possible,” in Buckland we properly used the avoidance doctrine to conclude that Congress must have intended the jury to determine drug type and quantity beyond a reasonable doubt. Id. Harris does not hold or indicate that was error. Rejecting appellants’ arguments in full, we now hold that there is nothing in Harris contradicting or overruling Buckland’s decision sustaining the constitutionality of 21 U.S.C. § 841 and Mendoza-Paz’s decision sustaining the constitutionality of 21 U.S.C. § 960. This challenge is foreclosed by United States v. Carranza, 289 F.3d 634, 644 (9th Cir.2002) (“

2002-12-30

United States Court of Appeals for the Ninth Circuit

United States v. Hernandez

United States v. Hernandez, 322 F.3d 592 (2002)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_7

As Heiden makes clear, a passenger's presence in a vehicle carrying a commercial quantity of drugs across the border is enough to find probable cause, even though such evidence without more is not enough to sustain a guilty verdict.

In United States v. Carranza, 289 F.3d 634, 641 (9th Cir.2002), we stated "

2002-12-19

United States Court of Appeals for the Ninth Circuit

United States v. Sanchez-Hernandez

United States v. Sanchez-Hernandez, 53 F. App'x 842 (2002)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_3

A defendant charged with importing or possessing a drug is not required to know the type and amount of drug.

First, the death threats occurred during the period of the methamphetamine conspiracy and were intended to protect it by intimidating Reynaga, whom Sanchez-Hernandez suspected of having informed the police of two of his distributors. Second, the evidence provided a coherent and comprehensible account of the conspiracy. That Sanchez-Hernandez would threaten to kill his wife because he thought she was an informant allowed the prosecution to present a compelling story of the lengths to which Sanchez-Hernandez would go to further his drug conspiracy. The testimony also explains why there was a four-month hiatus between the death threats and the next round of drug deliveries: Reynaga distanced herself from Sanchez-Hernandez following his threats, but later agreed to resume work for him. Finally, Sanchez-Hernandez could not be prosecuted for these acts because they took place in Mexico, outside of United States jurisdiction. See United States v. Ripinsky, 109. F.3d 1436, 1442 (9th Cir. 1997), overruled on other grounds by United States v. Sablan, 114 F.3d 913, 916 (9th Cir.1997). We hold that the district court did not abuse its discretion. II. Sanchez-Hernandez’s challenge to the constitutionality of 21 U.S.C. §§ 841 and 960 is foreclosed by United States v. Mendoza-Paz, 286 F.3d 1104, 1109-10 (9th Cir.2002) (upholding the constitutionality of 21 U.S.C. §§ 841 and 960). See also United States v. Buckland, 289 F.3d 558, 572 (9th Cir.2002) (en banc), cert. denied, — U.S. —, 122 S.Ct. 2314, 152 L.Ed.2d 1067 (2002). His argument that Buckland required drug quantities to be found by the jury beyond a reasonable doubt is inapposite because drug quantity in this case did not increase his sentence beyond the statutory maximum. “

2003-09-04

United States Court of Appeals for the Ninth Circuit

United States v. Shryock

United States v. Shryock, 342 F.3d 948 (2003)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_14

[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.

We hold that sufficient evidence exists to support the convictions of each Appellant and Aguirre’s forfeiture. We also hold that the indictment sufficiently alleged that Mendez conspired to distribute narcotics. VIII Sentencing Issues Appellants raise numerous issues regarding their sentencing. We review de novo the district court’s interpretation of the Sentencing Guidelines, and review for an abuse of discretion the district court’s application of the guidelines to the specific facts of a case. United States v. Alexander, 287 F.3d 811, 818 (9th Cir.2002). We review for clear error the district court’s factual findings in the sentencing phase. United States v. Williams, 291 F.3d 1180, 1196 (9th Cir.2002). A preponderance of the evidence must support these factual findings. United States v. Montano, 250 F.3d 709, 713 (9th Cir.2001). A. Sentences Based on Murder Predicate Acts The district court imposed life sentences on the following Appellants for first-degree murder: (1) Aguirre; (2) Gallardo; (3) Shryock; and (4) Therrien. 1. Life Sentence Under U.S.S.G. § 2A1.1 Gallardo and Therrien argue that the district court erred by applying U.S.S.G. § 2A1.1 (“2A1.1”) for first-degree murder, rather than U.S.S.G. § 2A1.2 (“2A1.2”) for second-degree murder, because the jury did not return any findings that the murder predicate acts were in the first degree. We disagree. First, the district court has authority to find by a preponderance of the evidence that 2A1.1 rather than 2A1.2 applies. See United States v. Carter, 300 F.3d 415, 426-27 (4th Cir.2002) (per curiam) (holding that the district court can sentence a defendant convicted for distributing narcotics under 2A1.1 for a drug-related murder even if the jury did not find the defendant guilty of such murder, provided that the district court found the murder to have occurred by a preponderance of the evidence). In Apprendi, the Supreme Court held that “

2003-09-04

United States Court of Appeals for the Ninth Circuit

United States v. Shryock

United States v. Shryock, 342 F.3d 948 (2003)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_14

[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.

The jury convicted R. Hernandez of (1) a substantive RICO violation, based on predicate acts of conspiracy to distribute narcotics, in violation of 21 U.S.C. § 841(a)(1), and conspiracy to extort, in violation of CaLPenal Code §§ 182, 518; (2) a conspiracy RICO violation for the same predicate acts in the substantive RICO violation; and (3) conspiracy to distribute narcotics in violation of 21 U.S.C. § 846. The statutory maximum sentence supported by the jury verdicts against R. Hernandez was twenty years for each count. 18 U.S.C. § 1963(a); 21 U.S.C. § 841(b)(1)(C). Under the stacking rule, the district court may only sentence R. Hernandez to a maximum of sixty years. Accordingly, we vacate R, Hernandez’s sentence and remand for re-sentencing. IX Forfeiture On June 20, 1997, the jury found by a preponderance of the evidence that Aguirre’s interest in a 1992 Honda Accord was forfeitable under 21 U.S.C. § 853 because he obtained it as a result of the conspiracy to aid and abet the distribution of narcotics. Aguirre argues that we should reconsider our cases holding that the standard of proof in criminal forfeiture cases is the preponderance of the evidence. United States v. Hernandez-Escarsega, 886 F.2d 1560, 1576-77 (9th Cir.1989). Aguirre asserts that in light of the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the appropriate standard is beyond a reasonable doubt. Forfeiture of all property connected with the charged offenses in this case is prescribed in the statutes proscribing the offenses themselves. Apprendi only holds that “

2003-02-28

United States Court of Appeals for the Ninth Circuit

United States v. Lewis

United States v. Lewis, 62 F. App'x 757 (2003)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_14

[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.

Here, the district court did not abuse its discretion because the government introduced the partially redacted article to show Appellants’ knowledge and not for the truth of the allegations in the article. D. Venue for the Money Laundering Conspiracy Charge Venue is a question of law we review de novo. United States v. Williams, 291 F.3d 1180, 1188 (9th Cir.2002). The government bears the burden of proving venue by a preponderance of the evidence. United States v. Jones, 231 F.3d 508, 516 (9th Cir.2000). Venue for conspiracy to launder money is proper in any district where an overt act in furtherance of the conspiracy takes place, even if the act is taken by a co-conspirator and the defendant did not enter or commit acts within the district. 18 U.S.C. § 1956(i)(2); see also United States v. Cabrales, 524 U.S. 1, 8-9, 118 S.Ct. 1772, 141 L.Ed.2d 1 (1998). The government carried its burden to prove proper venue by a preponderance because the government presented evidence that, as part of the conspiracy, CLS’s customers exchanged money from drug sales in the Eastern District of California, which they used to purchase chemicals at CLS in the Northern District of California, and then the purchasers brought the chemicals to the Eastern District to manufacture more drugs. Thus, the acts in the Eastern District were in furtherance of the money laundering conspiracy. E. Forfeiture In imposing judgment on a person convicted of § 1956, 18 U.S.C. § 982(a)(1) authorizes the district court to order that person to forfeit to the United States any property involved in the offense. Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) In Apprendi, the Supreme Court held that “

2003-07-10

United States Court of Appeals for the Ninth Circuit

United States v. Sanchez-Sanchez

United States v. Sanchez-Sanchez, 70 F. App'x 455 (2003)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_4

Apprendi did not change the long-established rule that the government need not prove the defendant knew the type and amount of a controlled substance that he imported or possessed; the government need only show that the defendant knew that he imported or possessed some controlled substance.

This instruction, and the special verdict form which required the jury to “unanimously find, by evidence beyond a reasonable doubt, that the amount of methamphetamine imported by [Sanchez-Sanchez] was fifty (50) grams and more,” cured any duplicitousness in the indictment. II Sanchez-Sanchez next claims that the district court erred when it failed to instruct the jury that it could not convict him on either count unless the government proved beyond a reasonable doubt that Sanchezr-Sanehez knew that both marijuana and methamphetamine were present in the truck. See United States v. Carranza, 289 F.3d 634, 644 (9th Cir.2002) (“

2003-11-12

United States Court of Appeals for the Ninth Circuit

United States v. Orozco-Rodriguez

United States v. Orozco-Rodriguez, 81 F. App'x 132 (2003)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_4

Apprendi did not change the long established rule that the government need not prove that the defendant knew the type and amount of a controlled substance that he imported or possessed; the government need only show that the defendant knew that he imported or possessed some controlled substance.

To qualify for a safety valve departure, the defendant must, among other provisions, provide the Government with “all information and evidence the defendant has concerning the offense” no later than the time of sentencing. U.S.S.G § 501.2(a)(5); 18 U.S.C. § 3553(f)(5). The district court found that Orozco-Rodriguez presented three different and conflicting stories to the Government, and thus did not meet the burden of proof by establishing that he had truthfully related to the Government all the information he had about the crime. The district court, therefore, did not err by not granting a safety valve downward departure. 3. The criminal statutes under which Orozco-Rodriguez was prosecuted (21 U.S.C. §§ 960 and 841) are constitutional after the Supreme Court’s decisions in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002). This court has so held in United States v. Hernandez, 322 F.3d 592, 600-02 (9th Cir.2003). Therefore, Orozeo-Rodriguez’s constitutional arguments fail. 4. In United States v. Carranza, 289 F.3d 634, 644 (9th Cir.2002), this Court held that “

2003-12-03

United States Court of Appeals for the Ninth Circuit

United States v. Toliver

United States v. Toliver, 351 F.3d 423 (2003)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_3

defendant charged with importing or possessing a drug is not required to know the type and amount of drug

United States v. Sanchez-Cervantes, 282 F.3d 664, 669-70 (9th Cir.2002). In rejecting the defendants’ acquittal motion, the district court determined and the government repeatedly acknowledged that the maximum sentence authorized by the jury’s verdict was 20 years (240 months) under section 841(b)(1)(C). After making the drug quantity determination, the district court’s sentences on Count 1 for Patterson and Toliver were 152 months and 168 months respectively. This was well below the authorized maximum of 240 months. In sum, the district court’s quantity determination for purposes of determining the defendants’ sentencing range under the Sentencing Guidelines did not violate Apprendi III. Other Arguments Patterson set forth a number of additional, separate arguments challenging both his convictions and sentence. We address each argument in turn. This argument is foreclosed by United States v. Carranza, 289 F.3d 634, 644 (9th Cir.2002) (holding that a “

2006-07-20

United States Court of Appeals for the Ninth Circuit

United States v. Larsen

United States v. Larsen, 190 F. App'x 552 (2006)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_2

after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

MEMORANDUM Cynthia Larsen appeals from her jury trial conviction and sentence for unauthorized impairment of a protected computer in violation of 18 U.S.C. § 1030(a)(5)(A)(ii). She argues that there was insufficient evidence for the jury to conclude that she caused more than a $5,000 loss to her victims. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm. We review de novo the district court’s denial of Larsen’s motion for a judgment of acquittal based on the sufficiency of the evidence. We will not disturb the jury’s verdict if “

2004-02-05

United States Court of Appeals for the Ninth Circuit

United States v. Johnson

United States v. Johnson, 357 F.3d 980 (2004)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_2

‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’

Count I charged him with conspiracy to possess with intent to distribute methamphetamine in violation of 21 U.S.C. § 846, and Count II charged him with possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1). On the morning of trial, Count I was dismissed upon the Government’s motion, and trial proceeded on Count II. Following the conclusion of the Government’s case, Johnson moved for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. The court took the motion under advisement. Johnson then presented his defense and thereafter renewed his motion under Rule 29. The court again took the matter under advisement. The following day, the jury returned a guilty verdict. After reading the verdict, the court orally denied Johnson’s Rule 29 motions and set sentencing for February 5, 2003. On December 20, 2002, the district court denied Johnson’s motion for judgment of acquittal by written order. In his sentencing memorandum of January 27, 2003, Johnson objected to the pre-sentence investigator’s calculation of his base offense level. The investigator had assigned Johnson responsibility for the full 83.2 grams of methamphetamine for purposes of the calculation. During the sentencing hearing, Johnson renewed his objection to the calculation, which the court overruled, and thereafter sentenced him to seventy-six months of incarceration followed by three years of supervised release. Johnson appeals the district court’s denial of his motion for judgment of acquittal and the base offense level calculation. II. ANALYSIS A. The court must examine the ruling in the light most favorable to the Government and ask whether “ ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

2004-02-10

United States Court of Appeals for the Ninth Circuit

United States v. Delgado

United States v. Delgado, 357 F.3d 1061 (2004)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_2

‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’

(Emphasis added.) Here, again, applying the principle in Cain, Delgado needed to know that at least one of the agreement’s objects was to carry out illegal activity, but he did not need to know that the very making of such an agreement constituted unlawful activity. Because the court’s instructions were without error, there was no plain error. 2. Sufficiency of Evidence Delgado next claims that the Government presented insufficient evidence to convict on both Counts 1 and 2. As here, when a defendant does not preserve a claim of sufficiency of the evidence by failing to make a motion for acquittal at the close of the evidence, the review is deferential, requiring reversal only upon plain error or to prevent a manifest injustice. A challenge to the sufficiency of the evidence requires this court to determine if “ ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

2003-09-17

United States Court of Appeals for the Second Circuit

United States v. King

United States v. King, 345 F.3d 149 (2003)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_14

increase[s] the penalty for a crime beyond the prescribed statutory maximum ....

The Presentence Investigation Report (“PSR”) prepared by the probation office calculated King’s offense level at 28 which, at criminal history category III, resulted in a guidelines range of 97 to 121 months. However, because 21 U.S.C. § 841(b)(1)(B) mandates a minimum sentence of 10 years imprisonment for individuals who, like King, previously have been convicted for a felony drug offense and who are convicted of a crime involving five grams or more of cocaine base, the PSR recommended a sentence of 120 months. The district court agreed with the recommendation and sentenced King principally to 10 years imprisonment. DISCUSSION King contends that the constitutional principles the Supreme Court announced three years ago in Apprendi have cast doubt on this Court’s precedent establishing that the sentencing enhancements provided in § 841(b) are imposed regardless of the defendant’s state of mind concerning the type or quantity of drugs in his possession. See United States v. Collado-Gomez, 834 F.2d 280 (2d Cir.1987) (per cu-riam) (government need not prove that defendant knew specific nature or amount of controlled substance in prosecution under 21 U.S.C. § 841); United States v. Pineda, 847 F.2d 64 (2d Cir.1988) (per curiam) (imposition of 10 year minimum sentence provided in § 841(b)(1)(A) for distribution of 5 grams or more of cocaine does not require defendant to know the amount of cocaine involved). We write to clarify that neither Apprendi nor any other precedent has altered this well-settled principle. First, Apprendi’s requirement that factors related to sentencing be submitted to the jury and proved beyond a reasonable doubt applies only when the factors in question “increase[s] the penalty for a crime beyond the prescribed statutory maximum.... ”

2006-03-14

United States Court of Appeals for the Ninth Circuit

United States v. Perlaza

United States v. Perlaza, 439 F.3d 1149 (2006)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_2

any rational trier of fact could have found

Were Lopez temporarily residing in or visiting a house where narcotics were kept or manufactured, merely riding in an automobile that contained narcotics, or perhaps even aboard a vessel significantly larger than the Go-Fast, these precedents might compel us to conclude that the evidence against him was insufficient to sustain his conviction. But Lopez’s case is distinguishable from all of these scenarios, and, as the Government properly notes, we have already articulated “a number of factors” that may be used to demonstrate “knowing participation” in a maritime narcotics-trafficking prosecution under the MDLEA. Klimavicius-Viloria, 144 F.3d at 1263. These factors include: a long voyage on a small vessel evincing a close relationship between captain and crew; suspicious behavior or diversionary maneuvers before apprehension; attempts to flee; inculpatory statements made after apprehension; witnessed participation as a crewman; obviousness of the contraband; or absence of equipment necessary to the intended use of the vessel. Id. (quoting United States v. Ospina, 823 F.2d 429, 433 (11th Cir.1987)). The factors relevant in this case include the length of the Go-Fast’s voyage, the Go-Fast’s size, and the Go-Fast crew’s suspicious behavior and diversionary maneuvers. As we noted earlier, the Go-Fast was of the short-range variety, with one small cabin and estimated by the Government’s expert to be between twenty-five and thirty-five feet in length. In addition to the 1,964 kilograms of cocaine, the Go-Fast contained at least a dozen 55-gallon drums of gasoline, suggesting that its planned voyage was lengthy and, as the Government’s expert opined, likely destined for Central Mexico. Once detected by the De Wert’s helicopter, the Go-Fast engaged in diversionary maneuvers, weaving left and right, jettisoning the large bales of cocaine, and eventually crashing into the rear of the Gran Tauro. From this evidence, “

2006-03-14

United States Court of Appeals for the Ninth Circuit

United States v. Perlaza

United States v. Perlaza, 439 F.3d 1149 (2006)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_2

Evidence is sufficient if, viewed -in a light most favorable to the- prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

While we do not address the other alleged instances of misconduct by the Government in this case, we are nonetheless deeply troubled by the Prosecutor’s conduct throughout the trial. The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. It is fair to say that the average jury, in a greater or less degree, has confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be faithfully observed. Consequently, improper suggestions... are apt to carry much weight against the accused when they should properly carry none. Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). 27 . We review claims of insufficient evidence de novo. "

2006-01-18

United States Court of Appeals for the Tenth Circuit

United States v. Briseno

United States v. Briseno, 163 F. App'x 658 (2006)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_14

[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt,

Compare 21 U.S.C. § 841(a) (“Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally ____”), with id. § 841(b) (“Except as otherwise provided in... this title, any person who violates subsection (a) of this section shall be sentenced as follows.... ”). Prior to the Supreme Court’s decision in Apprendi, courts routinely held that § 841(b) imposed a strict liability punishment scheme based solely on the type and quantity of drugs possessed by the defendant and that a defendant’s knowledge of the type and quantity was not relevant to the sentencing decision. Rodriguez nevertheless argues that the Supreme Court’s decision in Apprendi, wherein the Court held that “

2006-01-18

United States Court of Appeals for the Tenth Circuit

United States v. Briseno

United States v. Briseno, 163 F. App'x 658 (2006)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_4

Apprendi did not change the long established rule that the government need not prove that the defendant knew the type and amount of a controlled substance that he imported or possessed; the government need only show that the defendant knew that he imported or possessed some controlled substance.

’ ” (emphasis omitted)), cert. denied, 538 U.S. 1068, 123 S.Ct. 2241, 155 L.Ed.2d 1126 (2003); United States v. Carranza, 289 F.3d 634, 644 (9th Cir.2002) (“

2012-08-09

United States Court of Appeals for the Ninth Circuit

United States v. Mariscal

United States v. Mariscal, 491 F. App'x 807 (2012)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_2

in the light most favorable to the prosecution,

MEMORANDUM Following a bench trial, Appellant Jorge Mariscal (“Mariscal”) was convicted of violating 8 U.S.C. § 1326(a), which prohibits an alien from illegally reentering the United States after he previously left the country while an order of removal was outstanding. Where a party on appeal challenges the sufficiency of the evidence, we view the evidence “

2012-08-09

United States Court of Appeals for the Ninth Circuit

United States v. Mariscal

United States v. Mariscal, 491 F. App'x 807 (2012)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_2

any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Where a party on appeal challenges the sufficiency of the evidence, we view the evidence “in the light most favorable to the prosecution,” and then determine whether “

2009-05-13

United States District Court for the District of Oregon

Schliske v. Albany Police Department

Schliske v. Albany Police Department, 617 F. Supp. 2d 1106 (2009)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_18

under the totality of the circumstances known to the arresting officers, a prudent person would have concluded that there was a fair probability that [the defendant] had committed a crime.

Probable cause exists if “

2013-06-19

United States Court of Appeals for the Ninth Circuit

United States v. Mendiola

United States v. Mendiola, 529 F. App'x 828 (2013)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_2

A challenge to the sufficiency of the evidence requires this court to determine if ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’

” “A challenge to the sufficiency of the evidence requires this court to determine if ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

2010-04-30

United States Court of Appeals for the Ninth Circuit

Plata v. Schwarzenegger

Plata v. Schwarzenegger, 603 F.3d 1088 (2010)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_19

We review de novo the district court’s construction or interpretation of a statute.

The State opposed the requests, arguing that the Motion to Terminate was “based on the plain language of the PLRA and presented] discrete legal questions” and, therefore, could be decided without an evidentiary hearing. Observing that the State sought to terminate the receivership on purely legal grounds, the district court denied without prejudice the Receiver’s request to schedule an evidentiary hearing, and denied as premature the Receiver’s request to conduct limited discovery. Three weeks later, the district court issued an order denying the entire Motion to Terminate, which the State now appeals. Standards of Review “

2007-03-12

United States Court of Appeals for the Ninth Circuit

United States v. Lopez

United States v. Lopez, 482 F.3d 1067 (2007)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_18

under the totality of circumstances known to the arresting officers, a prudent person would have concluded that there was a fair probability that [the defendant] had committed a crime.

Because our answers to the latter two questions are dispositive of this appeal, we do not answer the first question, but rather assume without deciding that the District Court was correct in finding that the investigative stop of Lopez’s vehicle promptly escalated into what, “for Fourth Amendment purposes,” constituted a “full-scale arrest” of Lopez. In the balance of this opinion, we start by examining what constitutes probable cause. We then address the two theories of probable cause for Lopez’s arrest advanced by the government. We find that the government’s first theory, while initially adequate to support Lopez’s arrest, was no longer viable by the time Lopez consented to the search of his car, since by then the police had acquired additional information that undercut probable cause. But we further find that the government’s second probable cause theory not only validates Lopez’s arrest, but remains supportive of Lopez’s continuing arrest status at the time of his consent to the search of his car. Because we find that there was probable cause to arrest Lopez, and that the probable cause was still in force at the time Lopez consented to the search, we hold that the District Court properly denied the motion to suppress. A. The probable cause standard Under the Fourth Amendment, a warrantless arrest requires probable cause. See Michigan v. Summers, 452 U.S. 692, 700, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981). Probable cause to arrest exists when officers have knowledge or reasonably trustworthy information sufficient to lead a person of reasonable caution to believe that an offense has been or is being committed by the person being arrested. Alternatively, this court has defined probable cause as follows: when “

2007-03-12

United States Court of Appeals for the Ninth Circuit

United States v. Lopez

United States v. Lopez, 482 F.3d 1067 (2007)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_11

facts and circumstances ... support an inference that [an] individual is connected to the proximate criminal activity.

We have distinguished the “mere presence” doctrine from cases in which the “facts and circumstances... support an inference that [an] individual is connected to the proximate criminal activity.

2007-03-12

United States Court of Appeals for the Ninth Circuit

United States v. Lopez

United States v. Lopez, 482 F.3d 1067 (2007)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_13

attendant facts and circumstances supported] a fair probability

United States v. Buckner, 179 F.3d 834, 839 (9th Cir.1999). In Buckner, we concluded that the “

2007-03-12

United States Court of Appeals for the Ninth Circuit

United States v. Lopez

United States v. Lopez, 482 F.3d 1067 (2007)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_13

was linked to the crime of drug trafficking.

In Buckner, we concluded that the “attendant facts and circumstances supported] a fair probability” that the defendant—the sole passenger in a car carrying thirty-seven pounds of marijuana hidden in the dashboard and rear panels—“

2007-03-12

United States Court of Appeals for the Ninth Circuit

United States v. Lopez

United States v. Lopez, 482 F.3d 1067 (2007)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_17

this is not a close case

Id. at 737. The government seeks to draw a parallel between these facts and Lopez’s alleged attempt to "orchestrate... delivery” of the attempted shooter’s car. As we have just noted, however, Hill listed an attempt to deliver possessions to a fugitive as a cumulative fact pointing to accessory liability in a case involving extensive additional evidence. Hill illustrates that picking up or taking possession of a fugitive’s possessions can — under some circumstances — constitute evidence that one is acting as an accessory to that fugitive's crime. But because the scope and content of the assistance rendered by the defendant to the fugitive was much broader and better developed in Hill than in the case before us, Hill provides little help in deciding whether Lopez’s actions in helping to recover the Ford Focus-presented in the much sparser evidentiary context of our case— were sufficient to justify arrest in what, we find, is "a close case. Cf. Hill, 279 F.3d at 737 (noting that "

2006-07-14

United States Court of Appeals for the Ninth Circuit

United States v. Castillo

United States v. Castillo, 189 F. App'x 648 (2006)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_2

‘f[ind] the essential elements of the crime beyond a reasonable doubt.’

MEMORANDUM Jacobo appeals his conviction and sentence for drug trafficking and conspiracy, alleging there was insufficient evidence to show that he was the person whose voice was recorded in phone calls with a confidential informant. Jacobo did not move for acquittal at the close of evidence; accordingly we review for plain error. Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). Evidence showed Jacobo was taped in at least three calls during a sting operation, and in those calls responded to a nickname the confidential informant had given him during their prior acquaintance. We are satisfied the informant was sufficiently acquainted with Jacobo to permit the jury to “ ‘f[ind] the essential elements of the crime beyond a reasonable doubt.

2009-05-08

United States Court of Appeals for the Ninth Circuit

United States v. Morris

United States v. Morris, 330 F. App'x 121 (2009)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_2

‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’

MEMORANDUM Virgil Morris was convicted following a jury trial of four counts of conspiracy to distribute, distributing, and aiding and abetting the distribution of cocaine and cocaine base. The government had extended several plea offers in the months before trial but Morris declined the offers and elected to go to trial. Because Morris previously had been convicted in state court of at least two prior drug felonies, he was subject to a mandatory sentence of life imprisonment under 21 U.S.C. § 841(b)(1). The district court imposed the mandatory sentence. Morris raises four claims of error in this appeal. He contends: (1) that there was insufficient evidence to support his conviction on the fourth count of the indictment; (2) that the verdict was invalid because the district court summarized the jury’s verdict form rather than read the form verbatim in open court; (3) that the district court abused its discretion when it denied his motion for a new trial; and (4) that the district court failed to resolve disputed facts in the pre-sentence report before sentencing him. Morris also contends that his Sixth Amendment right to effective assistance of counsel was violated because his attorneys failed to inform him that he was subject to a mandatory life sentence. He urges us to find that this claim is ripe for review on direct appeal. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We affirm the district court on all issues. A challenge to the sufficiency of the evidence requires us to determine whether, “ ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

2014-04-01

United States Court of Appeals for the Ninth Circuit

United States v. Hernandez

United States v. Hernandez, 566 F. App'x 612 (2014)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_4

[T]he government need only show that the defendant knew that he imported ... some controlled substance.

MEMORANDUM Jose Enrique Hernandez (Hernandez) appeals his conviction and sentence for importation of cocaine in violation of 21 U.S.C. §§ 952 and 960. We have jurisdiction under 28 U.S.C. § 1291 and affirm. 1. Hernandez argues that due process required the Government to conduct tests to determine the percentage of pure cocaine included in the seized cocaine mixture. “[T]he government need only show that the defendant knew that he imported... some controlled substance.

2006-06-20

United States Court of Appeals for the Ninth Circuit

United States v. Wen Hsue Chang

United States v. Wen Hsue Chang, 186 F. App'x 745 (2006)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_2

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

A rational trier of fact could have concluded beyond a reasonable doubt that Chang and Tan agreed to act as enforcers during the voyage to the United States in exchange for a direct private financial gain, namely a discount from the standard $40,000 smuggling fee. See Jackson, 443 U.S. at 319, 99 S.Ct. 2781; United States v. Yoshida, 303 F.3d 1145, 1152 (9th Cir. 2002); United States v. Angwin, 271 F.3d 786, 805 (9th Cir.2001). Finally, a rational trier of fact could have concluded beyond a reasonable doubt that Chang and Tan knew or recklessly disregarded that the other aliens in the container were not authorized to be in the United States, and that Chang and Tan concealed, harbored, or shielded them from detection by immigration officials. As the government’s expert testified, container-smuggling conspiracies employ enforcers to ensure that immigration officials do not discover the illegal immigrants hiding inside a container. The evidence permitted a rational jury’s conclusion that such was the case here. Chang and Tan told the other aliens to be quiet, from which a rational trier of fact could infer that they were trying to conceal themselves and the other aliens. See Jackson, 443 U.S. at 319, 99 S.Ct. 2781; 8 U.S.C. § 1324(a) (1) (A)(iii). AFFIRMED. *** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3. 1 . We review de novo a district court’s denial of a motion for a judgment of acquittal. We may not reverse the district court if, "

2007-03-08

United States Court of Appeals for the Ninth Circuit

Reed v. City of Chino

Reed v. City of Chino, 224 F. App'x 625 (2007)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_18

a prudent person would have concluded that there was a fair probability that [the defendant] had committed a crime

MEMORANDUM Thomas Reed appeals the district court’s summary judgment in favor of Detective Rob MacKay and the City of Chino in Reed’s action for false arrest under 42 U.S.C. § 1983. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Because the parties are familiar with the factual and procedural history of the case, we need not recount it here. We review de novo the district court’s summary judgment that MacKay had probable cause to arrest Reed. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir.2004). MacKay properly relied on Fire Marshal Hall’s conclusion that the fire at the Insulfoam plant was the result of an arson. See United States v. Del Vizo, 918 F.2d 821, 825 (9th Cir.1990) (information relied on by police officers making probable cause determinations must be “reasonably trustworthy”). MacKay also relied on (1) an eyewitness account placing Reed’s truck at the plant on the day of the fire; (2) evidence that Reed had the requisite skill to commit the arson at the Insulfoam plant; (3) evidence that Reed had a motive to commit arson because he had been terminated by Insulfoam the day before the fire; and (4) evidence that Reed had been deceptive when asked, during a polygraph examination, about his involvement in the fire. See United States v. Carranza, 289 F.3d 634, 640 (9th Cir.2002) (probable cause exists if “

2009-03-27

United States Court of Appeals for the Ninth Circuit

United States v. Marguet-Pillado

United States v. Marguet-Pillado, 560 F.3d 1078 (2009)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_2

‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’

He asserted that the statements in the Application violated his Constitutional right to confront witnesses against him, and that they were inadmissible hearsay. The district court overruled his objections. At the close of the government’s case, Carlos Marguet made a motion for judgment of acquittal and asserted that the government had not proven his alienage beyond a reasonable doubt. The district court denied that motion, found him guilty as charged in the Indictment, and ultimately imposed sentence. This appeal followed. JURISDICTION AND STANDARDS OF REVIEW The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the district court’s denial of the motion to dismiss the Indictment de novo. See United States v. Camacho-Lopez, 450 F.3d 928, 929 (9th Cir.2006). However, we review the district court’s factual findings for clear error. Id. We review de novo the district court’s determinations of claimed violations of the Confrontation Clause. See United States v. Hernandez-Herrera, 273 F.3d 1213, 1217 (9th Cir.2001). Moreover, we review de novo the district court’s construction of hearsay rules, but review for abuse of discretion the court’s determination to admit hearsay evidence. See id. If we determine that the district court committed a nonconstitutional error, we will reverse if it is more likely than not that the error affected the verdict. See United States v. Chu Kong Yin, 935 F.2d 990, 994 (9th Cir.1991). We review de novo the district court’s denial of a motion for acquittal. In reviewing a challenge to the sufficiency of the evidence, we will uphold the conviction if “ ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

2006-10-11

United States Court of Appeals for the Ninth Circuit

United States v. Mosley

United States v. Mosley, 465 F.3d 412 (2006)

2002-05-03

United States Court of Appeals for the Ninth Circuit

United States v. Carranza

United States v. Carranza, 289 F.3d 634 (2002)

9435161_2

whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

The government argued during trial that Mosley’s apartment was not a home, but a “stash house,” used as a base to manufacture and package crack cocaine and as a place to store his drugs, drug paraphernalia, and drug proceeds. The government presented substantial evidence of crack cocaine production, along with bills and other papers found in the apartment that were addressed to Mosley at a different address. The evidence demonstrated that the apartment was sparsely furnished and had no bed and little furniture, although it contained several personal items and food. The government presented expert testimony to educate the jury on the connection between drug dealing and weapons and the significance of the firearms found near the entrance of a home or place of business. In his defense, Mosley argued that the apartment was not a stash house for drug production but was his home, and that the three firearms found at or near its entrance were simply a collection of guns used for sport or legitimate self-protection and not in any way related to running his crack cocaine business. Following submission of the prosecution’s evidence at trial, Mosley moved for acquittal on Count Two, arguing that there was insufficient evidence for any jury to convict him on this count. The district court denied the motion to dismiss under Federal Rule of Criminal Procedure 29 and submitted the case to the jury. The jury convicted Mosley on both counts. He timely appeals his conviction. II Because Mosley properly preserved his objection to the sufficiency of the evidence by making a timely Rule 29 motion at the close of the prosecution’s case-in-chief, we review the district court’s denial of a motion to acquit de novo. We must determine “

2002-06-05

United States District Court for the Eastern District of Virginia

Shepard v. Irving

Shepard v. Irving, 204 F. Supp. 2d 902 (2002)

2002-05-07

United States Court of Appeals for the Fourth Circuit

West Virginia v. U.S. Department of Health & Human Services

West Virginia v. U.S. Department of Health & Human Services, 289 F.3d 281 (2002)

9433450_25

in some insubstantial respect rather than submit to the demands of Washington.

Essentially, Defendants ask the Court to disregard GMU’s knowing waiver of immunity because it mistakenly believed that it was already exposed to suit by virtue of Section 2000d-7 abrogating their immunity. GMU knew that it was exposing itself to suit for actions under the Rehabilitation Act if it received federal funds. Defendants do not argue that GMU did not knowingly and voluntarily accept the waiver — just that GMU did not appreciate the gravity of such waiver. This Court holds as a matter of law that such lack of appreciation is insufficient to eviscerate GMU’s knowing waiver. b. Coercive Nature of Waiver Defendants argue further that GMU was unconstitutionally coerced into waiving its sovereign immunity. The Supreme Court has recognized that some financial inducements by Congress might be so coercive as to turn into compulsion. See South Dakota v. Dole, 483 U.S. 203, 211, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987). Relying on such Supreme Court precedent, six out of the thirteen judges on the Fourth Circuit found coercive the congressional withholding of a $60 million grant on the basis that the Commonwealth of Virginia failed to provide private education services to less than one tenth of one percent (126) of the 128,000 handicapped students for whom the funds were earmarked. See Commonwealth of Virginia v. Riley, 106 F.3d 559, 569 (4th Cir.l997)(ew banc) (Luttig, J.), abrogated on other grounds by, Amos v. Maryland Dept, of Pub. Safety, 126 F.3d 589 (4th Cir.1997). See id. at 570 (stating in dicta that it is coercive to have a state forego the entirety of a substantial federal grant on the ground that the state agency refused to fulfill their federal obligation “

2002-06-05

United States District Court for the Eastern District of Virginia

Shepard v. Irving

Shepard v. Irving, 204 F. Supp. 2d 902 (2002)

2002-05-07

United States Court of Appeals for the Fourth Circuit

West Virginia v. U.S. Department of Health & Human Services

West Virginia v. U.S. Department of Health & Human Services, 289 F.3d 281 (2002)

9433450_34

the loss of an entire block of federal funds upon a relatively minor failing by a state [is] constitutionally suspect.

Even though this holding was not essential to the disposition in Riley, it stands for the proposition that “

2002-06-05

United States District Court for the Eastern District of Virginia

Shepard v. Irving

Shepard v. Irving, 204 F. Supp. 2d 902 (2002)

2002-05-07

United States Court of Appeals for the Fourth Circuit

West Virginia v. U.S. Department of Health & Human Services

West Virginia v. U.S. Department of Health & Human Services, 289 F.3d 281 (2002)

9433450_20

the Secretary shall notify [the] State agency that further payments will not be made to the State (or in his discretion, that payments will be limited to categories under or parts of the State plan not affected by such failure), until the Secretary is satisfied that there will no longer be any such failure to comply.

See West Virginia, 289 F.3d at 291. In West Virginia, the Fourth Circuit revisited the reasoning in Riley and acknowledged the quagmire that courts may become involved in when they utilize this coercion theory. See id. at 291 (citing cases). In West Virginia, the Fourth Circuit was faced with a situation where the Federal Government provided West Virginia $1 billion in Medicaid funds each year, yet recovered less than $2 million each year from an estate recovery plan. See id. at 291-92. Under the Medicaid statute at issue, once a state failed to enact an estate recovery program within the time frame established by Congress, its Medicaid plan was no longer compliant. At that time, “

2002-06-05

United States District Court for the Eastern District of Virginia

Shepard v. Irving

Shepard v. Irving, 204 F. Supp. 2d 902 (2002)

2002-05-07

United States Court of Appeals for the Fourth Circuit

West Virginia v. U.S. Department of Health & Human Services

West Virginia v. U.S. Department of Health & Human Services, 289 F.3d 281 (2002)

9433450_36

[Cjourts are not suited to evaluate] whether the states are faced here with an offer they cannot refuse or merely a hard choice.

See U.S. Const, art. I, § 8, cl. 1 (“Spending Clause”). 4 . The Supreme Court has admonished courts to attempt to avoid becoming entangled in ascertaining the point at which federal inducement becomes compulsion. See Chas C. Steward Machine Co. v. Davis, 301 U.S. 548, 589-90, 57 S.Ct. 883, 81 L.Ed. 1279 (1937)(''Every rebate from a tax when conditioned upon conditions is in some measure a temptation. But to hold that motive or temp-lation is equivalent to coercion is to plunge the law in endless difficulties. The outcome of such doctrine is the acceptance of philosophical determinism by which choice becomes impossible.”); see also State of Oklahoma v. Schweiker, 655 F.2d 401, 414 (D.C.Cir.1981) ("

2005-06-13

United States Court of Appeals for the Fourth Circuit

Constantine v. Rectors of George Mason University

Constantine v. Rectors of George Mason University, 411 F.3d 474 (2005)

2002-05-07

United States Court of Appeals for the Fourth Circuit

West Virginia v. U.S. Department of Health & Human Services

West Virginia v. U.S. Department of Health & Human Services, 289 F.3d 281 (2002)

9433450_22

the financial inducement offered by Congress must not be so coercive as to pass the point at which pressure turns into compulsion.

Although Congress may exercise its spending power to impose such conditions, it must meet certain requirements in doing so: (1) “the exercise of the spending power must be for the general welfare,” (2) the conditions must be stated unambiguously, (3) the conditions must “bear some relationship to the purpose of the federal spending,” (4) the expenditure with its conditions must not violate some other constitutional command, and (5) “

2005-06-13

United States Court of Appeals for the Fourth Circuit

Constantine v. Rectors of George Mason University

Constantine v. Rectors of George Mason University, 411 F.3d 474 (2005)

2002-05-07

United States Court of Appeals for the Fourth Circuit

West Virginia v. U.S. Department of Health & Human Services

West Virginia v. U.S. Department of Health & Human Services, 289 F.3d 281 (2002)

9433450_22

in some circumstances the financial inducement offered by Congress might be so coercive as to pass the point at which pressure turns into compulsion.

Although the waiver condition in § 2000d-7 is a blanket condition that applies regardless of the nature or amount of federal funds accepted, in this context it applies only with respect to the “program or activity” that receives those funds. See 29 U.S.C. § 794(a)-(b). We conclude that this waiver condition is sufficiently related to the purpose of the nondiscrimination rule stated in § 504 of the Rehabilitation Act, ie., to ensure that federal funds are not used to facilitate disability discrimination. B. The Supreme Court has also noted that “

2005-06-13

United States Court of Appeals for the Fourth Circuit

Constantine v. Rectors of George Mason University

Constantine v. Rectors of George Mason University, 411 F.3d 474 (2005)

2002-05-07

United States Court of Appeals for the Fourth Circuit

West Virginia v. U.S. Department of Health & Human Services

West Virginia v. U.S. Department of Health & Human Services, 289 F.3d 281 (2002)

9433450_3

all South Dakota would lose if she adheres to her chosen course as to a suitable minimum drinking age is 5% of the funds otherwise obtainable under specified highway grant programs.

The Court in South Dakota concluded that the minimum-drinking-age condition on highway funding was not unduly coercive, at least as it applied to South Dakota, since “

2005-06-13

United States Court of Appeals for the Fourth Circuit

Constantine v. Rectors of George Mason University

Constantine v. Rectors of George Mason University, 411 F.3d 474 (2005)

2002-05-07

United States Court of Appeals for the Fourth Circuit

West Virginia v. U.S. Department of Health & Human Services

West Virginia v. U.S. Department of Health & Human Services, 289 F.3d 281 (2002)

9433450_25

a Tenth Amendment claim of the highest order lies where, as here, the Federal Government ... withholds the entirety of a substantial federal grant on the ground that the States refuse to fulfill their federal obligation in some insubstantial respect rather than submit to policy dictates of Washington in a matter peculiarly within their powers as sovereign States.

Id. at 211, 107 S.Ct. 2793. Although there might be a federal funding condition that is unconstitutionally coercive, neither the Supreme Court nor any federal court of appeals has yet identified one. We considered this coercion theory in Virginia Department of Education v. Riley, 106 F.3d 559 (4th Cir.1997) (en banc). The Commonwealth of Virginia challenged the federal government’s decision to withhold from Virginia all federal funding under the Individuals with Disabilities Education Act (“IDEA”) for one year in response to Virginia’s failure to provide educational services to 126 disabled students who had been disciplined for reasons unrelated to their disabilities. Id. at 560. A majority of the en banc court sustained Virginia’s challenge on the ground that the IDEA does not unambiguously condition receipt of federal funds on provision of services under such circumstances. Id. at 561. Although it was not necessary to the disposition of the case, six of thirteen judges agreed that the federal government’s withholding 100% of an annual special education grant of '$60 million in response to the Commonwealth’s failure to provide private educational services to 126 students was unduly coercive. According to these judges, “a Tenth Amendment claim of the highest order lies where, as here, the Federal Government... withholds the entirety of a substantial federal grant on the ground that the States refuse to fulfill their federal obligation in some insubstantial respect rather than submit to policy dictates of Washington in a matter peculiarly within their powers as sovereign States.

2005-06-13

United States Court of Appeals for the Fourth Circuit

Constantine v. Rectors of George Mason University

Constantine v. Rectors of George Mason University, 411 F.3d 474 (2005)

2002-05-07

United States Court of Appeals for the Fourth Circuit

West Virginia v. U.S. Department of Health & Human Services

West Virginia v. U.S. Department of Health & Human Services, 289 F.3d 281 (2002)

9433450_34

the coercion theory remains viable in this circuit, and that federal statutes that threaten the loss of an entire block of federal funds upon a relatively minor failing by a state are constitutionally suspect.

We later characterized this dicta'in Riley as indicating that “

2005-06-13

United States Court of Appeals for the Fourth Circuit

Constantine v. Rectors of George Mason University

Constantine v. Rectors of George Mason University, 411 F.3d 474 (2005)

2002-05-07

United States Court of Appeals for the Fourth Circuit

West Virginia v. U.S. Department of Health & Human Services

West Virginia v. U.S. Department of Health & Human Services, 289 F.3d 281 (2002)

9433450_27

[i]f the government in fact withheld the entirety of West Virginia’s [Medicaid funding] because of the [S]tate’s failure to implement an estate recovery program, then serious Tenth Amendment questions would be raised.

This finding was crucial to the Court's conclusion that there was not a demonstrated pattern of disability discrimination in public-sector employment that warranted § 5 legislation. Garrett, 531 U.S. at 372, 121 S.Ct. 955. The same finding shows that Congress recognized a persistent problem in private-sector employment and a separate problem in the provision of public services. Thus, the remedial measures described in Title I and those described in Title II were enacted in response to different kinds of problems, and a conclusion about the congruence and proportionality of Title I does not control the analysis of Title II. 12 . Although the Court subsequently rejected the interpretation of § 601 of the Civil Rights Act described in Lau, see Alexander v. Sandoval, 532 U.S. 275, 285, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001), the Spending Clause analysis in Lau remains intact. We did note, however, that "

2006-12-29

United States Court of Appeals for the Fourth Circuit

Madison v. Virginia

Madison v. Virginia, 474 F.3d 118 (2006)

2002-05-07

United States Court of Appeals for the Fourth Circuit

West Virginia v. U.S. Department of Health & Human Services

West Virginia v. U.S. Department of Health & Human Services, 289 F.3d 281 (2002)

9433450_16

permissible method of encouraging a State to conform to federal policy choices,

Id. § 2000d-4a(l)(A). The Virginia Department of Corrections is a state agency that receives federal financial assistance. The Spending Clause is a “

2006-12-29

United States Court of Appeals for the Fourth Circuit

Madison v. Virginia

Madison v. Virginia, 474 F.3d 118 (2006)

2002-05-07

United States Court of Appeals for the Fourth Circuit

West Virginia v. U.S. Department of Health & Human Services

West Virginia v. U.S. Department of Health & Human Services, 289 F.3d 281 (2002)

9433450_22

‘the financial inducement offered by Congress must not be so coercive as to pass the point at which pressure turns into compulsion.’

To be valid, Spending Clause legislation must meet several requirements: (1) “ ‘the exercise of the spending power must be for the general welfare,’ ” (2) “the conditions must be stated unambiguously,” (3) “the conditions must ‘bear some relationship to the purpose of the federal spending,’ ” (4) the conditions “must not violate some other constitutional command,” and (5) “ ‘the financial inducement offered by Congress must not be so coercive as to pass the point at which pressure turns into compulsion.

2006-12-29

United States Court of Appeals for the Fourth Circuit

Madison v. Virginia

Madison v. Virginia, 474 F.3d 118 (2006)

2002-05-07

United States Court of Appeals for the Fourth Circuit

West Virginia v. U.S. Department of Health & Human Services

West Virginia v. U.S. Department of Health & Human Services, 289 F.3d 281 (2002)

9433450_12

objectives not thought to be within Article I’s enumerated legislative fields, may nevertheless be attained through the use of the spending power and the conditional grant of federal funds.

483 U.S. at 208, 107 S.Ct. 2793. It is well settled, however, that “

2006-12-29

United States Court of Appeals for the Fourth Circuit

Madison v. Virginia

Madison v. Virginia, 474 F.3d 118 (2006)

2002-05-07

United States Court of Appeals for the Fourth Circuit

West Virginia v. U.S. Department of Health & Human Services

West Virginia v. U.S. Department of Health & Human Services, 289 F.3d 281 (2002)

9433450_37

is in some measure a temptation.

Plaintiff law schools argued that, because the Solomon Amendment’s condition — requiring that military recruiters be provided with campus access equal to that provided other recruiters — -violated the schools’ First Amendment rights, it was an unconstitutional condition. Id. at 1303-04. The Court disagreed, finding that the equal access condition did not violate the First Amendment and that, because Congress was free to impose the Solomon Amendment directly pursuant to its Article I powers, it necessarily could impose the condition under the Spending Clause. Id. at 1307. The Court, far from limiting Congress’ spending authority, confirmed the Hamiltonian view that this power is “arguably greater” than Congress’ power to achieve its goals directly. Id. at 1306. In any event, we may not overlook decades of clear directives in response to Virginia’s claim that the Supreme Court has overruled sub silentio its prior precedents. See Tenet v. Doe, 544 U.S. 1, 10-11, 125 S.Ct. 1230, 161 L.Ed.2d 82 (2005); State Oil Co. v. Khan, 522 U.S. 3, 20, 118 S.Ct. 275, 139 L.Ed.2d 199 (1997). In somewhat the same vein, Virginia argues that RLUIPA is unconstitutional because it requires the States to provide prisoners with religious accommodations that are not compelled by the Constitution. Nothing in the Spending.Clause, however, forecloses Congress from' placing conditions on federal funds that reach beyond what the Constitution requires. See Dole, 483 U.S. at 205, 107 S.Ct. 2793. In Dole, for example, the Court rejected a Spending Clause challenge to a statute that required the States to adopt a minimum drinking age of 21 — an age limit wholly absent from constitutional text. Of course, every financial incentive “

2006-12-29

United States Court of Appeals for the Fourth Circuit

Madison v. Virginia

Madison v. Virginia, 474 F.3d 118 (2006)

2002-05-07

United States Court of Appeals for the Fourth Circuit

West Virginia v. U.S. Department of Health & Human Services

West Virginia v. U.S. Department of Health & Human Services, 289 F.3d 281 (2002)

9433450_22

point at which pressure turns into compulsion.

Dole, 483 U.S. at 211, 107 S.Ct. 2793 (quoting Steward Mach. Co. v. Davis, 301 U.S. 548, 589-90, 57 S.Ct. 883, 81 L.Ed. 1279 (1937)). Rather, the coercion analysis seeks to differentiate between those choices that are truly voluntary and those that are illusory, passing the “

2006-12-29

United States Court of Appeals for the Fourth Circuit

Madison v. Virginia

Madison v. Virginia, 474 F.3d 118 (2006)

2002-05-07

United States Court of Appeals for the Fourth Circuit

West Virginia v. U.S. Department of Health & Human Services

West Virginia v. U.S. Department of Health & Human Services, 289 F.3d 281 (2002)

9433450_34

[F]ederal statutes that threaten the loss of an entire block of federal funds upon a relatively minor failing by a state are constitutionally suspect.

Id. (internal quotation omitted). Virginia claims that RLUIPA is unconstitutionally coercive because it conditions one hundred percent of federal funding for state prisons on compliance with RLUIPA. But the Virginia Department of Corrections received a mere 1.3% of prison funding from the federal government in 2005. It is difficult to see how even one hundred percent of this tiny fraction could leave the State without a real choice regarding the funds and their conditions. Indeed, Virginia does not even argue that it cannot operate its prisons without the federal monies; instead, it argues a funding statute that threatens to withhold the entirety of a federal grant is per se coercive. “

2006-12-29

United States Court of Appeals for the Fourth Circuit

Madison v. Virginia

Madison v. Virginia, 474 F.3d 118 (2006)

2002-05-07

United States Court of Appeals for the Fourth Circuit

West Virginia v. U.S. Department of Health & Human Services

West Virginia v. U.S. Department of Health & Human Services, 289 F.3d 281 (2002)

9433450_3

Congress has offered relatively mild encouragement to the States,

Constantine, 411 F.3d at 494 (quoting Dole, 483 U.S. at 211, 107 S.Ct. 2793). A small carrot does not, in other words, “become a club” merely because the entire modest amount is at stake. Where, as here, “

2006-12-29

United States Court of Appeals for the Fourth Circuit

Madison v. Virginia

Madison v. Virginia, 474 F.3d 118 (2006)

2002-05-07

United States Court of Appeals for the Fourth Circuit

West Virginia v. U.S. Department of Health & Human Services

West Virginia v. U.S. Department of Health & Human Services, 289 F.3d 281 (2002)

9433450_39

remains the prerogative of the States.

Where, as here, “Congress has offered relatively mild encouragement to the States,” the choice to accept or reject federal funds “

2006-09-27

United States District Court for the District of Connecticut

Connecticut v. Spellings

Connecticut v. Spellings, 453 F. Supp. 2d 459 (2006)

2002-05-07

United States Court of Appeals for the Fourth Circuit

West Virginia v. U.S. Department of Health & Human Services

West Virginia v. U.S. Department of Health & Human Services, 289 F.3d 281 (2002)

9433450_0

attach conditions on the receipt of federal funds

Simmonds, 326 F.3d at 360 (emphasis added). The State remains in compliance with the Act and therefore faces no imminent enforcement action by the Secretary. Moreover, it is not certain what enforcement action, if any, the Secretary would ultimately take, assuming the Secretary were ever to find the State not in compliance. Finally, as noted previously, according to the Secretary, the State may maintain its compliance with the Act and at the same time pursue its interpretation of the Act in the context of a denial of a plan amendment. See Seafarers Int’l Union of N. Am., AFL-CIO v. U.S. Coast Guard, 736 F.2d 19, 28 (2d Cir.1984) (finding no particular hardship under ripeness analysis because there were alternative avenues for administrative review). As a result, the State cannot satisfy the hardship prong of the prudential ripeness doctrine. Therefore, even if the Court were wrong in its conclusion regarding the availability of pre-enforcement review under the Act, the Court would nonetheless dismiss Count I under the doctrine of prudential ripeness. Accordingly, the Court grants the Secretary Motion to Dismiss [doc. # 18] as to Count I under Rule 12(b)(1) for lack of subject matter jurisdiction. B. Count II — Spending Clause and Tenth Amendment In Count II, the State asserts that the Secretary’s interpretation and implementation of the Act violate both the Spending Clause and the Tenth Amendment of the U.S. Constitution. Through its powers under the Spending Clause of the Constitution, see U.S. Const, art. I, § 8, Congress may “

2006-09-27

United States District Court for the District of Connecticut

Connecticut v. Spellings

Connecticut v. Spellings, 453 F. Supp. 2d 459 (2006)

2002-05-07

United States Court of Appeals for the Fourth Circuit

West Virginia v. U.S. Department of Health & Human Services

West Virginia v. U.S. Department of Health & Human Services, 289 F.3d 281 (2002)

9433450_22

in some circumstances!,] the financial inducement offered by Congress might be so coercive as to pass the point at which pressure turns into compulsion.

In Dole, the Supreme Court, in dicta, revived a proposition from a 1937 case, Steward Machine Co. v. Davis, 301 U.S. 548, 590, 57 S.Ct. 883, 81 L.Ed. 1279 (1937), that “

2006-09-27

United States District Court for the District of Connecticut

Connecticut v. Spellings

Connecticut v. Spellings, 453 F. Supp. 2d 459 (2006)

2002-05-07

United States Court of Appeals for the Fourth Circuit

West Virginia v. U.S. Department of Health & Human Services

West Virginia v. U.S. Department of Health & Human Services, 289 F.3d 281 (2002)

9433450_23

[wjhile it is certainly possible that, in a given case, the sanction actually imposed by the Secretary might not be proportionate to the breach and might be constitutionally suspect, the mere possibility of a constitutional violation is insufficient to sustain a facial challenge to a statute.

And because Connecticut remains in compliance with the Act, the Secretary has had no occasion to withhold, or even threaten to withhold, funds. Thus, the record does not reveal the size of the penalty that the State might face should it become non-eompliant. If, for example, the Secretary decided to withhold only a nominal amount from the State, there could be no serious claim under the Tenth Amendment. Here, as in West Virginia, “

2006-09-27

United States District Court for the District of Connecticut

Connecticut v. Spellings

Connecticut v. Spellings, 453 F. Supp. 2d 459 (2006)

2002-05-07

United States Court of Appeals for the Fourth Circuit

West Virginia v. U.S. Department of Health & Human Services

West Virginia v. U.S. Department of Health & Human Services, 289 F.3d 281 (2002)

9433450_10

The fact that the ... Act might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an ‘over-breadth’ doctrine outside the limited context of the First Amendment.

Id. at 292-293; see also United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (“The fact that the... Act might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an ‘over-breadth’ doctrine outside the limited context of the First Amendment.

2007-08-03

United States District Court for the Eastern District of Pennsylvania

Lewis ex rel. Young v. Rendell

Lewis ex rel. Young v. Rendell, 501 F. Supp. 2d 671 (2007)

2002-05-07

United States Court of Appeals for the Fourth Circuit

West Virginia v. U.S. Department of Health & Human Services

West Virginia v. U.S. Department of Health & Human Services, 289 F.3d 281 (2002)

9433450_11

The Medicaid Act is an enormously complicated program. The system is a web; a tug at one strand pulls on every other. Given this complexity, there are untold ways in which a state plan might fail to comply with the Act and the governing regulations.

MEMORANDUM DuBOIS, District Judge. INTRODUCTION “The Medicaid Act is an enormously complicated program.

2007-01-19

United States Court of Appeals for the Fourth Circuit

West Virginia v. Thompson

West Virginia v. Thompson, 475 F.3d 204 (2007)

2002-05-07

United States Court of Appeals for the Fourth Circuit

West Virginia v. U.S. Department of Health & Human Services

West Virginia v. U.S. Department of Health & Human Services, 289 F.3d 281 (2002)

9433450_2

[T]he effect of this exclusion is to allow someone with a potentially valuable asset to receive benefits along with those who have greater financial need.

” Harris v. McRae, 448 U.S. 297, 308, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980). States that choose to participate in Medicaid have flexibility concerning the services they provide and the manner in which they provide them, but do not possess a blank federal check. In order to be reimbursed for a portion of the cost of care, they must maintain “state plans for medical assistance” that conform to requirements designed in part to safeguard the federal fisc and ensure that care meets federal standards. 42 U.S.C. § 1396a(a); see also Wilder, 496 U.S. at 502, 110 S.Ct. 2510. While Medicaid seeks to assist those who could not readily afford health care, individuals may sometimes receive benefits in spite of substantial assets. Medicaid generally disregards an individual’s home equity interest in assessing long-term care eligibility unless the interest exceeds $500,000. See Pub.L. No. 109-171, § 6014, 120 Stat. 4, 64-65 (codified at 42 U.S.C. 1396p(f)(1)); West Virginia v. Dep’t of Health & Human, Servs. (West Virginia I), 289 F.3d 281, 284 (4th Cir.2002). Until passage of the Deficit Reduction Act of 2005, even home equity interests of more than $500,000 could be excluded from eligibility calculations. “

2007-01-19

United States Court of Appeals for the Fourth Circuit

West Virginia v. Thompson

West Virginia v. Thompson, 475 F.3d 204 (2007)

2002-05-07

United States Court of Appeals for the Fourth Circuit

West Virginia v. U.S. Department of Health & Human Services

West Virginia v. U.S. Department of Health & Human Services, 289 F.3d 281 (2002)

9433450_19

could result in West Virginia losing all or part of its Federal financial participation in the State's Medicaid Program.

Since “the Administrator’s interpretation represents a reasonable accommodation of manifestly competing interests and is entitled to deference,” id. at 865, 104 S.Ct. 2778, we will not usurp the power that Congress provided the Secretary to make the difficult choices involved in this case. AFFIRMED. 1 . The state did not engage in such recoveries when they were optional under the Medicaid statute, and when they became mandatory, the state continued to abstain until the Department of Health and Human Services threatened "compliance proceedings” that "

2010-12-13

United States District Court for the Eastern District of Virginia

Virginia ex rel. Cuccinelli v. Sebelius

Virginia ex rel. Cuccinelli v. Sebelius, 728 F. Supp. 2d 768 (2010)

2002-05-07

United States Court of Appeals for the Fourth Circuit

West Virginia v. U.S. Department of Health & Human Services

West Virginia v. U.S. Department of Health & Human Services, 289 F.3d 281 (2002)

9433450_14

must show that the [statute] cannot operate constitutionally under any circumstance.

(Def.’s Mem. Supp. 2.) The Secretary also cites projections that it will raise $4 billion annually in general revenue. She takes issue with the Commonwealth’s position that there is a legal distinction between penalties that serve regulatory purposes and other forms of revenue raising taxation. In her opinion, any such legal distinction has long been abandoned by the Supreme Court. Finally, the Secretary highlights several precepts of legal analysis which she suggests should guide the Court in reviewing the issues raised. First, she cautions the Court to remember that the standard for facial challenges establishes a high hurdle. It requires the Commonwealth to demonstrate that there are no possible circumstances in which the Provision could be constitutionally applied. In other words, they “

2010-12-13

United States District Court for the Eastern District of Virginia

Virginia ex rel. Cuccinelli v. Sebelius

Virginia ex rel. Cuccinelli v. Sebelius, 728 F. Supp. 2d 768 (2010)

2002-05-07

United States Court of Appeals for the Fourth Circuit

West Virginia v. U.S. Department of Health & Human Services

West Virginia v. U.S. Department of Health & Human Services, 289 F.3d 281 (2002)

9433450_7

it interposes an economic impediment to the activity taxed as compared with others not taxed.

She concedes that the Provision has a regulatory purpose, but adds that “[e]very tax is in some measure regulatory” to the extent “

2009-12-30

United States District Court for the Western District of Virginia

Equity in Athletics, Inc. v. Department of Education

Equity in Athletics, Inc. v. Department of Education, 675 F. Supp. 2d 660 (2009)

2002-05-07

United States Court of Appeals for the Fourth Circuit

West Virginia v. U.S. Department of Health & Human Services

West Virginia v. U.S. Department of Health & Human Services, 289 F.3d 281 (2002)

9433450_22

recognized that in some circumstances the financial inducement offered by Congress might be so coercive as to pass the point at which pressure turns into compulsion,

While the Supreme Court has "

2010-07-22

United States Court of Appeals for the Fourth Circuit

H.B. Rowe Co. v. Tippett

H.B. Rowe Co. v. Tippett, 615 F.3d 233 (2010)

2002-05-07

United States Court of Appeals for the Fourth Circuit

West Virginia v. U.S. Department of Health & Human Services

West Virginia v. U.S. Department of Health & Human Services, 289 F.3d 281 (2002)

9433450_14

has a very heavy burden to carry, and must show that [a statutory scheme] cannot operate constitutionally under any circumstance.

In its facial challenge, therefore, a plaintiff “

2011-01-31

United States District Court for the Northern District of Florida

Florida ex rel. Bondi v. United States Department of Health & Human Services

Florida ex rel. Bondi v. United States Department of Health & Human Services, 780 F. Supp. 2d 1256 (2011)

2002-05-07

United States Court of Appeals for the Fourth Circuit

West Virginia v. U.S. Department of Health & Human Services

West Virginia v. U.S. Department of Health & Human Services, 289 F.3d 281 (2002)

9433450_15

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

” When the Bill of Rights was later added to the Constitution in 1791, the Tenth Amendment reaffirmed that relationship: “

2011-01-31

United States District Court for the Northern District of Florida

Florida ex rel. Bondi v. United States Department of Health & Human Services

Florida ex rel. Bondi v. United States Department of Health & Human Services, 780 F. Supp. 2d 1256 (2011)

2002-05-07

United States Court of Appeals for the Fourth Circuit

West Virginia v. U.S. Department of Health & Human Services

West Virginia v. U.S. Department of Health & Human Services, 289 F.3d 281 (2002)

9433450_22

in some circumstances the financial inducement offered by Congress might be so coercive as to pass the point at which ‘pressure turns into compulsion.’

Supra, 483 U.S. at 207-10, 107 S.Ct. 2793. In addition, a spending condition cannot be “coercive. This conceptional requirement is also from Dole, where the Supreme Court speculated (in dicta at the end of that opinion) that “in some circumstances the financial inducement offered by Congress might be so coercive as to pass the point at which ‘pressure turns into compulsion.

2011-01-31

United States District Court for the Northern District of Florida

Florida ex rel. Bondi v. United States Department of Health & Human Services

Florida ex rel. Bondi v. United States Department of Health & Human Services, 780 F. Supp. 2d 1256 (2011)

2002-05-07

United States Court of Appeals for the Fourth Circuit

West Virginia v. U.S. Department of Health & Human Services

West Virginia v. U.S. Department of Health & Human Services, 289 F.3d 281 (2002)

9433450_19

cease participation in the Medicaid Program

”); Declaration of Deborah K. Bowman (Secretary of Department of Social Services, South Dakota) (conceding that although it would be detrimental to its Medicaid recipients, South Dakota could “

2011-01-31

United States District Court for the Northern District of Florida

Florida ex rel. Bondi v. United States Department of Health & Human Services

Florida ex rel. Bondi v. United States Department of Health & Human Services, 780 F. Supp. 2d 1256 (2011)

2002-05-07

United States Court of Appeals for the Fourth Circuit

West Virginia v. U.S. Department of Health & Human Services

West Virginia v. U.S. Department of Health & Human Services, 289 F.3d 281 (2002)

9433450_9

most courts faced with the question have effectively abandoned any real effort to apply the coercion theory

See, e.g., Doe v. Nebraska, 345 F.3d 593, 599-600 (8th Cir.2003); Kansas v. United States, 214 F.3d 1196, 1201-02 (10th Cir.2000); California v. United States, 104 F.3d 1086, 1092 (9th Cir.1997); Oklahoma v. Schweiker, 655 F.2d 401, 413-14 (D.C.Cir.1981); State of New Hampshire Dep’t of Employment Sec. v. Marshall, 616 F.2d 240, 246 (1st Cir.1980); but see West Virginia v. U.S. Dep’t of Health & Human Servs., 289 F.3d 281, 288-90 (4th Cir.2002) (referring to a prior decision of that court, Commonwealth of Virginia Dep’t of Education v. Riley, 106 F.3d 559 (4th Cir.1997), where six of the thirteen judges on an en banc panel stated in dicta that a coercion claim may be viable in that court, but going on to note that due to “strong doubts” about the viability of the coercion theory “

2011-01-31

United States District Court for the Northern District of Florida

Florida ex rel. Bondi v. United States Department of Health & Human Services

Florida ex rel. Bondi v. United States Department of Health & Human Services, 780 F. Supp. 2d 1256 (2011)

2002-05-07

United States Court of Appeals for the Fourth Circuit

West Virginia v. U.S. Department of Health & Human Services

West Virginia v. U.S. Department of Health & Human Services, 289 F.3d 281 (2002)

9433450_26

raises political questions that cannot be resolved by the courts

See, e.g., Doe v. Nebraska, 345 F.3d 593, 599-600 (8th Cir.2003); Kansas v. United States, 214 F.3d 1196, 1201-02 (10th Cir.2000); California v. United States, 104 F.3d 1086, 1092 (9th Cir.1997); Oklahoma v. Schweiker, 655 F.2d 401, 413-14 (D.C.Cir.1981); State of New Hampshire Dep’t of Employment Sec. v. Marshall, 616 F.2d 240, 246 (1st Cir.1980); but see West Virginia v. U.S. Dep’t of Health & Human Servs., 289 F.3d 281, 288-90 (4th Cir.2002) (referring to a prior decision of that court, Commonwealth of Virginia Dep’t of Education v. Riley, 106 F.3d 559 (4th Cir.1997), where six of the thirteen judges on an en banc panel stated in dicta that a coercion claim may be viable in that court, but going on to note that due to “strong doubts” about the viability of the coercion theory “most courts faced with the question have effectively abandoned any real effort to apply the coercion theory” after finding, in essence, that it “

2011-01-31

United States District Court for the Northern District of Florida

Florida ex rel. Bondi v. United States Department of Health & Human Services

Florida ex rel. Bondi v. United States Department of Health & Human Services, 780 F. Supp. 2d 1256 (2011)

2002-05-07

United States Court of Appeals for the Fourth Circuit

West Virginia v. U.S. Department of Health & Human Services

West Virginia v. U.S. Department of Health & Human Services, 289 F.3d 281 (2002)

9433450_22

pass[es] the point at which ‘pressure turns into compulsion.’

See, e.g., Doe v. Nebraska, 345 F.3d 593, 599-600 (8th Cir.2003); Kansas v. United States, 214 F.3d 1196, 1201-02 (10th Cir.2000); California v. United States, 104 F.3d 1086, 1092 (9th Cir.1997); Oklahoma v. Schweiker, 655 F.2d 401, 413-14 (D.C.Cir.1981); State of New Hampshire Dep’t of Employment Sec. v. Marshall, 616 F.2d 240, 246 (1st Cir.1980); but see West Virginia v. U.S. Dep’t of Health & Human Servs., 289 F.3d 281, 288-90 (4th Cir.2002) (referring to a prior decision of that court, Commonwealth of Virginia Dep’t of Education v. Riley, 106 F.3d 559 (4th Cir.1997), where six of the thirteen judges on an en banc panel stated in dicta that a coercion claim may be viable in that court, but going on to note that due to “strong doubts” about the viability of the coercion theory “most courts faced with the question have effectively abandoned any real effort to apply the coercion theory” after finding, in essence, that it “raises political questions that cannot be resolved by the courts”). Thus, the plaintiffs were allowed to proceed and provide evidentiary support and further legal support for a judicially manageable standard or coherent theory for determining when, in the words of the Supreme Court, a federal spending condition “pass[es] the point at which ‘pressure turns into compulsion.

2011-01-31

United States District Court for the Northern District of Florida

Florida ex rel. Bondi v. United States Department of Health & Human Services

Florida ex rel. Bondi v. United States Department of Health & Human Services, 780 F. Supp. 2d 1256 (2011)

2002-05-07

United States Court of Appeals for the Fourth Circuit

West Virginia v. U.S. Department of Health & Human Services

West Virginia v. U.S. Department of Health & Human Services, 289 F.3d 281 (2002)

9433450_13

to hold that motive or temptation is equivalent to coercion is to plunge the law in endless difficulties.

Rather, as Justice Cardozo cautioned in what appears to have been the first case to hint at the possibility of a coercion theory claim, “

2011-01-31

United States District Court for the Northern District of Florida

Florida ex rel. Bondi v. United States Department of Health & Human Services

Florida ex rel. Bondi v. United States Department of Health & Human Services, 780 F. Supp. 2d 1256 (2011)

2002-05-07

United States Court of Appeals for the Fourth Circuit

West Virginia v. U.S. Department of Health & Human Services

West Virginia v. U.S. Department of Health & Human Services, 289 F.3d 281 (2002)

9433450_8

The difficulty if not the impropriety of making judicial judgments regarding a state’s financial capabilities renders the coercion theory highly suspect as a method for resolving disputes between federal and state governments.

See Steward Machine Co. v. Davis, 301 U.S. 548, 589-90, 57 S.Ct. 883, 81 L.Ed. 1279 (1937) (emphasis added); see also, e.g., Skinner, supra, 884 F.2d at 448 (“

2011-01-31

United States District Court for the Northern District of Florida

Florida ex rel. Bondi v. United States Department of Health & Human Services

Florida ex rel. Bondi v. United States Department of Health & Human Services, 780 F. Supp. 2d 1256 (2011)

2002-05-07

United States Court of Appeals for the Fourth Circuit

West Virginia v. U.S. Department of Health & Human Services

West Virginia v. U.S. Department of Health & Human Services, 289 F.3d 281 (2002)

9433450_36

The courts are not suited to evaluating whether the states are faced here with an offer they cannot refuse or merely a hard choice.

”). In short, while the plaintiffs’ coercion theory claim was plausible enough to survive dismissal, upon full consideration of the relevant law and the Constitutional principles involved, and in light of the numerous disputed facts alluded to above, I must conclude that this claim cannot succeed and that the defendants are entitled to judgment as a matter of law. See, e.g., Schweiker, supra, 655 F.2d at 414 (“