Recent Blog Posts

A Government Misunderstanding: About Pretrial Detention

Carl Gunn — Tue, 15 May 2012 18:14:00 GMT

Don’t you just hate it when you walk into that initial appearance and the government hands you that piece of paper titled, "Notice of Request for Detention"? And isn’t it especially annoying that they do it in what seems like 90% of the cases? And you know how there’s two boxes for them to choose whether to check? One for detention based on flight risk? And the other for detention based on danger to the community? And they check both boxes in 99% of those 90% of the cases?

In fact, it’s not only annoying; it reflects a fundamental misunderstanding of the detention provisions of the Bail Reform Act. In two different ways.

First, this pattern reflects a gross misunderstanding of the frequency with which detention without bail was to be used. There’s some very interesting commentary on the Bail Reform Act in the Senate Report on the Comprehensive Crime Control Act, of which the Bail Reform Act was one part. The report is reprinted at 1984 U.S.C.C.A.N. 3184 and at 1983 WL 25404 and has some language that it’s worth reminding prosecutors and judges about. At page 3189, for example, it says:

There is a small but identifiable group of particularly dangerous defendants as to whom neither the imposition of stringent release conditions nor the prospect of revocation of release can reasonably assure the safety of the community or other persons. It is with respect to this limited group of offenders that the courts must be given the power to deny release pending trial.

(Emphasis added.) Then on the next page, the report speaks of "a preventive detention statute that is appropriately narrow in scope." (Emphasis added.) And on the other side of the coin, the report suggests that not just some sort of bond, but a personal recognizance or unsecured appearance bond, is appropriate in the majority of cases. At page 3195 of the U.S.C.C.A.N. republication, the Senate report states:

The judicial officer . . . may release the person on his personal recognizance, or upon his execution of an unsecured appearance bond, pursuant to section 3142(b), he may release the person subject to one or more of the conditions listed in subsection (c); he may, if the arrested person is already on a form of conditional release or may be subject to deportation or exclusion order, temporarily detained [sic] the person pursuant to subsection (d); or he may pursuant to subsection (e), order the detention of the person. The first two forms of pretrial release are like those now set forth in the [old] Bail Reform Act. [Footnote citing former 18 U.S.C. § 3146.] It is anticipated that they will continue to be appropriate for the majority of defendants.

In sum, the legislative history suggests two things. First, it’s only a very small, limited group of defendants who should be detained without any bond at all. Second, it’s personal recognizance and unsecured bonds that are favored. Related to this, don’t forget 18 U.S.C. § 3142(c)(1)(B) which instructs courts to impose "the least restrictive . . . condition or combination of conditions, that . . . will reasonably assure the appearance of the person as required and the safety of any other person or the community."

Now one could argue that the Senate report isn’t controlling and who’s to say our district isn’t different and there’s nothing in the statute itself that says how often detention can be used. At least I guess one could argue that. But the seeking of detention in almost every case based on dangerousness in addition to flight risk does flatly violate the statute. The type of cases in which detention can be sought based on danger to community are limited by the statute. And it’s a limitation the government completely ignores in its bail and detention practice.

The statutory language isn’t a model of clarity, but the case law interpreting it – including Ninth Circuit case law – is clear. The relevant statutory provision is 18 U.S.C. § 3142(f), which limits when the government can even ask for detention. Subsection (f)(1) lists five relatively narrow categories of crimes – the most important of which are drug offenses, crimes of violence, and offenses involving firearms or a minor victim – in which the government can ask for detention no matter what. Subsection (f)(2) then allows the government to ask for detention in other cases only when there is "a serious risk that such person will flee" or "a serious risk that such person will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror." Notably absent from subsection (f)(2) is any right to ask for detention based on some more general danger to the community.

It logically follows from this that you can’t detain based on danger to the community in cases not within the categories listed in subsection (f)(1). Because how could a court detain on a ground that doesn’t let the government ask in the first place? While this isn’t expressly stated in the statute, multiple circuits outside the Ninth Circuit have so reasoned for more than 20 years.See United States v. Byrd, 969 F.2d 106, 109 (5th Cir. 1992); United States v. Ploof, 851 F.2d 7, 10-11 (1st Cir. 1988); United States v. Himler, 797 F.2d 156, 160 (3rd Cir. 1986). And the Ninth Circuit followed these cases almost 10 years ago in United States v. Twine, 344 F.3d 987 (9th Cir. 2003). I did have one case – and I’m assuming there may be others – in which the government has argued these cases don’t mean what they say, but the government is engaging in an embarrassing stretch when it makes that argument. Attached here, here, and here are a government brief in one of my cases, my reply, and – far more authoritative than my reply – Judge Margaret M. Morrow’s order rejecting the government’s argument because it "contradicts Twine’s clear holding."

To sum up this post, detention practice by the government in our district – and, unfortunately, in some instances, the rulings of the judges they occasionally persuade (which don’t include Judge Morrow) – reflects a fundamental misunderstanding of what was intended and what is allowed by the preventive detention provisions of the Bail Reform Act. So, two things you should always have with you when you go to court to address this misunderstanding are the Senate report on the Bail Reform Act – or at least the portions quoted above – and the Twine case.

Love May or May Not Be in the Air, But the New Sentencing Guideline Amendments Are

Carl Gunn — Tue, 08 May 2012 17:16:00 GMT

It’s that time of year. And, no, I’m not talking about it being spring and love being in the air. (Though hopefully it is for some of you.) It’s the time of year when the Sentencing Commission issues the final version of the guideline amendments which will take effect in November unless Congress vetoes them (which almost never happens). This brings to mind a little practice tip an attorney with pending federal sentencings should keep in mind this time of year, namely, the rules on which version of the guidelines apply – the old ones or the new ones. So I thought I’d offer a little reminder about that and put off my previously planned post until next week.

There are two pertinent rules to remember. The first is the statutory provision about what guidelines apply. That’s in 18 U.S.C. 3553(a)(4), which directs the court to consider not the guidelines in effect on the date the defendant committed the offense but the guidelines "in effect on the date of sentencing." There’s then a second rule, however – to be found in case law considering the impact of the Ex Post Facto Clause on this provision. That case law holds that the court can’t apply the guidelines in effect on the date of sentencing but has to apply the guidelines in effect on the date of the offense if the new guidelines disadvantage the defendant compared to the guidelines in effect on the date he committed his offense. See, e.g., United States v. Espinoza-Morales, 621 F.3d 1141, 1146 (9th Cir. 2010); United States v. Lopez-Soliz, 447 F.3d 1201, 1204-1205 (9th Cir. 2006); United States v. Alfaro, 336 F.3d 876, 882-83 (9th Cir. 2003); Hamilton v. United States, 67 F.3d 761, 765 (9th Cir. 1995); United States v. Johns, 5 F.3d 1267, 1272 (9th Cir. 1993); United States v.Warren, 980 F.2d 1300, 1304 (9th Cir. 1992).

This suggests attorneys should think about trying to get sentencing dates after November 1 (or continue sentencing dates already set) if there’s a guideline amendment taking effect that might just possibly help their clients. If it turns out a new guideline does help, it will apply regardless of when the defendant committed his offense, entered his plea, or got convicted in trial. And there’s no harm done if it turns out the amendment doesn’t help and/or some bad amendment hurts, because the ex post facto protection means the defendant can always ask for the guidelines in effect on the date of the offense if the new guidelines are worse. (But note that you don’t get to pick and choose; it’s all old or all new. See Warren, 980 F.2d at 1205.)

The one circumstance where it might be inadvisable to wait would be where the date of the offense was far enough back that there’s three sets of guidelines to consider – the ones in effect on the date of the offense, the ones in effect now, and the ones that will take effect in November. The ex post facto protection only gets you the ones in effect all the way back on the date of the offense, so delaying sentencing would be a bad idea if the guidelines in effect now are better than both the ones in effect on the date of the offense and new ones that will take effect in November. That won’t happen too often, but it could happen occasionally, so you should calculate the sentencing possibilities under three sets of guidelines: (1) the ones in effect on the date of the offense; (2) the ones in effect now; and (3) the ones that will take effect in November. If it’s the second ones that are best, you won’t want to delay sentencing until after November.

There’s not a lot of new helpful guidelines amendments to consider this year, but there are a few. (To view them in reader friendly form, go to the Sentencing Commission’s website at www.ussc.gov and click on "Reader-Friendly Version of Final 2012 Amendments.") One amendment that could possibly be helpful in a small number of cases is an amendment that’s part of the Commission’s Amendment No. 1. That amendment creates a rebuttable presumption in mortgage fraud cases that the value of collateral still held by the victim that offsets the loss under application note 3(E)(ii) to section 2B1.1 is the most recent tax assessment. This may or may not help, but delaying sentencing until November gives you the option of using this application note if it does help, and you can argue ex post facto limitations if it turns out to hurt.

An amendment that’s more clearly helpful is the Commission’s Amendment No. 3, which extends the 2-level offense level decrease for "safety valve" drug defendants in section 2D1.1(b) to precursor chemical cases (the most common probably being pseudoephedrine) under section 2D1.11. If you have a pseudoephedrine or other precursor chemical case and a defendant who’s a "safety valve" defendant, you should definitely try to get sentencing pushed off to November.

Finally, there’s a helpful amendment (the Commission’s Amendment No. 4) to the guideline in section 2L1.2 for illegal reentry after deportation. It takes the good side of a circuit split on the question of whether sentence length for a drug conviction includes time for a revocation of probation. This sentence length matters in deciding whether a defendant with a prior drug conviction gets a 16-level offense level increase under 2L1.2(b)(1)(A) or just a 12-level increase under 2L1.2(b)(1)(B). The amendment says only revocation sentences prior to the deportation get added, so a revocation sentence won’t be added if the defendant gets it after returning.

One last note. The time you should definitely start thinking about this is when the guidelines amendments come out in their final proposed form each May 1. But the Commission floats the amendments in proposed form for comment even before May 1, so you can get insights about possible amendments several months before May 1. Given the ex post facto protection that prevents there being any harm from delay, you might think about looking at the proposed amendments the Commission puts out even before May and think about delaying sentencing even at that point.

If anyone has any thoughts or experiences to share in this area, please feel free to comment, using the comment option below.

Some Modest (or Immodest, as the Case May Be) Proposals for Our Clients' Multiple State And Federal Cases

Carl Gunn — Tue, 01 May 2012 16:18:00 GMT

The Supreme Court’s recent decision in Setser v. United States, 132 S. Ct. 1463 (2012) on the power of a federal judge to order consecutive sentences brought to mind a problem that we run into not infrequently in federal criminal defense practice. The problem is how to make sure a state sentence which the state prosecutor agrees should be concurrent actually ends up being concurrent. Setser highlights – though in a less common form – the potential problem of a federal judge trying to override a state judge’s order that a state sentence be concurrent by ordering that the federal sentence be consecutive.

I thought I’d share a way in which I’ve avoided this problem that won’t always work but is worth giving a try. To appreciate the idea, you need to remember two things about custody in a federal jail waiting for sentencing in a federal case. First, if your client is in the federal jail only because he’s been "borrowed" from the state on a federal writ of habeas corpus ad prosequendum, the time will not be credited against the federal sentence ultimately imposed, unless there’s ultimately no state custody sentence imposed or the state sentence is shorter than the time your client has spent in combined state and federal custody. But conversely, if your client is in the federal jail as a federal prisoner rather than as a state prisoner who’s been "borrowed" on a writ, the time spent in the federal jail has to be credited against the federal sentence, even if a state judge’s order provides that it’s also got to be credited against a state sentence.

This suggests the following approach for assuring that a state judge’s concurrent sentence order controls over a federal judge’s consecutive sentence order when there’s a federal detainer on the client while he’s in state custody on his state case. That’s to have your client’s attorney in the state case (or you, if you’re representing the client in both cases) negotiate a plea agreement that includes the following steps: (1) the client will enter the agreed upon plea as soon as possible, with an agreement (a) as to what the state sentence will be, (b) that the state sentence will be concurrent with any federal sentence imposed, and (c) that the state sentence may be served in a federal institution; (2) the state agrees that the client will be granted an own recognizance bond once the plea is entered, which will result not in your client’s release to the street but in his release on the federal detainer into federal custody; and (3) your client agrees he may be sentenced in absentia, which saves the state the trouble of getting a writ and paying to have your client transported back from federal custody for the state sentencing hearing. A reasonable state prosecutor might agree to this in the right circumstances because (1) it’s a way to settle the case and avoid trial; (2) the federal detainer means the own recognizance bond doesn’t put your "dangerous" client out on the street, but simply transfers him into federal custody; and (3) the agreement to being sentenced in absentia means there’s no additional expense in bringing the client back for sentencing. In fact, there’s a saving of state funds because the client will be moved from the local county jail to a federal jail and serve his sentence in a federal prison instead of a state prison.

Lest you think a state prosecutor would never agree to this, I’ve had at least a couple of cases in which the state prosecutor did agree. And under the credit rules laid out two paragraphs above, it means the federal sentence can’t be made consecutive, as the Setser opinion recognized might sometimes happen. Cf. id., 132 S. Ct. at 1473 (acknowledging that "[t]here will often be late-onset facts that materially alter a prisoner’s position and that make it difficult, or even impossible, to implement [a consecutive] sentence").

If you can’t get the foregoing worked out in state court and your client gets brought over here on a writ of habeas corpus ad prosequendum while still in state custody – either before or after sentencing – there’s still a potential way to make the state and federal sentences concurrent, though it requires convincing the federal prosecutor (who controls plea negotiations) and/or the federal judge (who controls sentencing). With the right facts, you may have the sentencing guidelines on your side – in the form of section 5G1.3(b) and section 5K2.23.

Section 5G1.3(b) provides for two things when the defendant is serving an undischarged state sentence of imprisonment for an offense that gets considered as relevant conduct in calculating the guideline range for the federal offense. The first thing section 5G1.3(b) requires is that the federal sentence be run concurrent with the undischarged state sentence. The second thing section 5G1.3(b) requires is that the federal sentence be adjusted downward by the amount of time the defendant has already served on the undischarged state sentence. This is necessary to make the sentences fully concurrent, because federal Bureau of Prisons regulations won’t allow credit for the time served prior to coming into federal custody or the time the defendant was technically a state prisoner who was in federal custody only because he was brought over on a writ of habeas corpus ad prosequendum. See Bureau of Prisons Policy Statement 5880.28, at 1-17, 1-20B-21, available at www. bop.gov/policy/progstat/5880_028.pdf-2004-11-30. See also Schleining v. Thomas, 642 F.3d 1242 (9th Cir. 2011) (recognizing court lacks authority to make sentence retroactively concurrent to date prior to date it imposes sentence). And note that these two remedies aren’t optional under the guidelines but are required (though the ultimate guideline range is of course advisory). See United States v. Armstead, 552 F.3d 769, 784 (9th Cir. 2008).

While section 5G1.3(b) applies only if the state sentence is "undischarged," there’s the other provision – section 5K2.23 – which applies if the state sentence is fully served. That section provides for the court to consider a downward departure when section 5G1.3(b) would have applied if the defendant had been sentenced before his state sentence was over. Section 5K2.23 thereby encourages the court to reach the same result for discharged state sentences that section 5G1.3(b) requires for undischarged state sentences.

Finally, don’t give up if 5G1.3(b) doesn’t apply because the state offense doesn’t get considered as relevant conduct in calculating the guideline range for the federal offense. There’s a very good, logical Booker variance argument to make based on the haphazard disparity resulting from the separate prosecution of the state and federal cases. Point out that the multiple counts rules in Part 3D of the guidelines manual would have applied if your client had been prosecuted and sentenced for both offenses in the same federal court at the same time and calculate what the combined guideline range would have been under those rules. If the resulting guideline range is less than the sum of the state sentence and the guideline range for the federal offense being prosecuted separately, argue that there’s an unwarranted disparity resulting simply because of the way the state and federal authorities decided to prosecute the offenses. Then argue for a variance down to what the combined guideline range would have been if the sentences for the two offenses had been imposed at the same time in the same court.

All or some of these options are worth pursuing in sentencing for clients who’ve already gotten – or are facing – a separate state sentence. Keep them in mind and give them serious consideration when you have that situation.

By the way, and on another note, see AFPD Steve Sady’s blog on the Ninth Circuit defender blog at http://circuit9.blogspot.com/2012/03/putting-compassion-into-compassionate.html for a way to use Setser in our favor to get a compassionate release from the BOP under 18 U.S.C. 3582(c).

Some Last Thoughts on the Categorical Approach -- From a Guest

Sam Josephs — Tue, 24 Apr 2012 22:14:00 GMT

This week, we have a guest blogger – Deputy Federal Public Defender Sam Josephs. Sam clerked for both District Judge William Pauley in New York and Ninth Circuit Judge M. Smith. Sam had the good sense to choose California over New York and has been a deputy with the Federal Public Defender in Los Angeles since September, 2010. He was the recipient of the "Hanging out with Carl Gunn" e-mail that led to the title of this blog, as described in the lefthand column. He has a particular interest in categorical approach and related sentencing enhancement issues.

BLOG BULLETS:

Litigate even issues that seem foreclosed because law in this area changes often
Ninth Circuit has overruled its prior decisions on numerous occasions based on change in the law
Supreme Court has been active in this area so watch for circuit splits

NOW THE BLOG:

Carl’s examples illustrate the type of creative arguments that have prevailed in a number of cases. Those arguments have resulted in opinions excluding certain offenses, at least under the categorical approach, from consideration under the Armed Career Criminal Act, career offender guideline, illegal reentry guideline, and various immigration law provisions.

But there’s been so much change in the law over the last three or four years, it’s important to continue to litigate these issues, even if the Ninth Circuit has seemingly foreclosed them.

Here’s an example: In United States v. Terrell, 593 F.3d 1084, 1089-90 (9th Cir. 2010), the court held that Arizona’s version of sexual assault qualifies as a "violent felony" under the so-called "residual clause" of the Armed Career Criminal Act, allowing a prior sexual assault conviction to trigger the fifteen-year mandatory minimum sentencing enhancement. The residual clause, also found in the career offender provision of the Guidelines, defines as a "violent felony" or "crime of violence" an offense that "involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii); U.S.S.G. § 4B1.2(a). The Arizona statute defines sexual assault to include situations in which there is no force or threat of force used -- such as instances in which the victim is incapable of consenting to sexual conduct because of mental disorder, drugs, or "other similar impairments known to the defendant." Terrell, 593 F.3d at 1089. In finding the offense qualifies as a "violent felony," the court compared the Arizona law to simple rape, reasoning that the "typical" rape case involves violence and aggression.

Judge M. Smith wrote a persuasive dissent from the denial of rehearing en banc in Terrell, joined by Chief Judge Kozinski, and Judges Pregerson and Reinhardt. See United States v. Terrell, 621 F.3d 1154 (9th Cir. 2010). The dissenting judges pointed out that, in addition to qualifying as a "violent felony" under the Armed Career Criminal Act, Terrell probably means that a sexual assault offense also qualifies as a "forcible sex offense[ ]", and thus a "crime of violence" under the career offender guideline, even if it does not require any force. See id. at 1160-61. Note that the Terrell panel opinion doesn’t expressly consider whether a sexual assault offense not requiring force is a "crime of violence" for career offender purposes, so defense attorneys should still be challenging those priors, perhaps making many of the same arguments raised by Judge M. Smith in his dissent.

The dissent’s argument also provides a good road map for challenging Terrell’s holding with respect to the Armed Career Criminal Act. For example, the dissent points out that in Chambers v. United States, 555 U.S. 122 (2009), the Court required that the government point to more than a few examples in order to show that the "typical" set of facts underlying a particular offense "involves conduct that presents a serious potential risk of physical injury to another." Defense attorneys should be citing to this aspect of Chambers, and arguing that the burden is on the government to prove the "typical" case.

Defense attorneys should also look to out-of-circuit cases that have interpreted the more recent Supreme Court decisions -- Begay, Chambers, Johnson, and Sykes -- as a way of litigating issues that may seem foreclosed under older circuit precedent. The Ninth Circuit has certainly been willing to reconsider its prior opinions in light of intervening case law in other instances; see as one example the en banc decision in Ruiz-Fernandez, 466 F.3d 1121 (9th Cir. 2006) (en banc) and cases applying and extending it outside its particular facts. One case from another circuit that has done this specifically with rape is United States v. Owens, 672 F.3d 966 (11th Cir. 2012). In that case, the court overruled prior circuit case law, and held that neither second degree rape nor second degree sodomy under Alabama law qualify as a "violent felony" under the Armed Career Criminal Act.

The second degree rape statute at issue in Owens is strikingly similar to the sexual assault statute addressed in Terrell -- both require only slight penetration, and lack of consent is defined to include mental incapacity. It could provide an avenue to seek en banc review -- or perhaps certiorari -- based on a split in the circuits. Remember Carl’s point in his first post on the categorical approach (see "Recent Posts" in the righthand column) that this is an area in which the Supreme Court has taken a number of cases.

More on the Categorical Approach for Applying Federal Prior Conviction Enhancement Statutes

Carl Gunn — Tue, 17 Apr 2012 20:25:00 GMT

BLOG BULLETS:

Research the federal definition and the state statute.
Don’t assume words mean what you – and most everyone else – think they mean.
Don't assume the same words mean the same thing: A rose by any other name . . .

NOW THE BLOG:

I’ve talked in prior posts about the categorical approach to judging whether prior convictions satisfy federal enhancement statute definitions. Recall that all you need to keep a prior conviction from being considered under this categorical approach is to identify some offense that is covered by the statute for the prior conviction that doesn’t satisfy the federal enhancement definition (though it may need to be more than a mere hypothetical possibility, see James v. United States, 550 U.S. 192 (2007)).

This means you need to engage in two statutory construction exercises. First, you need to figure out the scope of the federal enhancement statute definition: what does it include and what does it not include? Then you need to go to the prior conviction statute and look for offense conduct which that statute includes but isn’t included in the federal enhancement statute’s definition. This means you need to (1) look at and interpret the prior conviction statute’s language and (2) look at the case law – meaning state case law if it’s a state statute – that has interpreted the statute already.

There’s three suggestions I commonly make to people undertaking this task:

1. Dig deeply into the nuances of the prior conviction statute’s language and equally deeply into the state cases interpreting and applying it. And make sure it’s the version of the statute under which your client was convicted that you’re looking at; remember that the statute may have been amended in the years since.

2. Don’t assume words necessarily mean what they seem to mean. Think critically (yes, "think like a lawyer") about alternative meanings, and then look for cases or other authority that’s construed the statutory language in that alternative way.

3. Don’t assume words in the prior conviction statute necessarily mean the same thing they mean in the federal enhancement statute. Just as a rose by any other name may smell as sweet, calling something a "rose" doesn’t mean it’s really a "rose." Or put another way, "What’s in a name?"

Let me share some examples of applying these principles. One is an argument that’s not reflected in any case law but is instead an argument that I made long ago when the categorical approach was first being adopted and applied, about a prior conviction for "oral copulation by force" as defined in California Penal Code § 288a. The question was whether this conviction satisfied the Armed Career Criminal Act definition of "violent felony," which includes, inter alia, any felony that "has as an element the use, attempted use, or threatened use of physical force against the person of another." The word "force" in the name of the offense – "oral copulation by force" – seemed to suggest my client’s prior conviction qualified, but I decided to dig more deeply. I first looked at the language of the statute and found that what the statute actually required was not necessarily force, but "force, violence, duress, menace, or threat of great bodily harm." (Emphasis added.) Those other things didn’t sound that different from "force" on their face, but I decided to look further into the case law construing this language and found two things in that case law. First, I found case law incorporating a Civil Code definition of "menace" which included not just threats of violence and bodily harm, but also threats to property and threats of "injury to character." Second, I found case law defining "duress" as "a direct or implied threat of force, violence, danger, hardship, or retribution." (Emphasis added.) Next, I found a California Court of Appeals case in which the actual facts constituting the "duress" were a stepfather’s threat to place his stepdaughter on restriction. I then argued that threatening to libel someone (i.e, a threat of "injury to character") or put a stepdaughter on restriction wasn’t the sort of "force" required to make something an Armed Career Criminal Act "violent felony."

Other examples of arguments that required such additional digging and were successful can be found in the case law. An Arizona burglary statute which was analyzed in United States v. Bonat, 106 F.3d 1472 (9th Cir. 1997) requires "unlawful" entry, which matches up with the "unlawful" entry element which the Supreme Court held Armed Career Criminal Act burglary requires in Taylor v. United States, 495 U.S. 575 (1990). The court in Bonat realized that it had to inquire into whether the word "unlawful" meant the same thing in both the state and federal definitions, however, and found it didn’t when it looked into the Arizona case law interpreting that word. See also United States v. Aguila Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc), in which the court applied the same analysis in construing the word "unlawful" in a California charging document that the court was considering under the modified categorical approach. Though the defendant in Bonat lost under the modified categorical approach because of a plea transcript providing more detail about the prior offense, the defendant in Aguila Montes de Oca prevailed because there wasn’t such an additional record.

Two other interesting examples can be found in United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001) (en banc) and Ortega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. 2006). Rivera-Sanchez considered the California drug distribution statute and held it didn’t qualify as a drug distribution offense for federal enhancement purposes because the California statute includes "transportation" as well as "sale" and delving into the California case law reveals that the statute includes transportation for mere personal use. Ortega-Mendez considered the California battery statute which by its literal language requires "force or violence." The court acknowledged case law the attorney had dug up holding that the "force or violence" the California statute required included the "least touching" and held this was not sufficient to constitute the "force" required by the federal "crime of violence" definition which applied.

Finally, there’s the example I talked about in my last post of the California controlled substance schedules that are broader than the federal controlled substance schedules, so that California "controlled substance" offenses include conduct that federal "controlled substance" offenses don’t. (See "Recent Posts" in the right-hand column.) That’s a wonderful example of an argument that got developed only when someone decided to say to himself or herself, "I wonder if . . ." and then went into the statutes and case law to check.

In each of these cases – and in a number of others there’s not room to summarize – the attorney didn’t just assume that similar language meant similar things or necessarily meant what it usually means, but wondered "what if" and dug deeper into the case law. So wonder "what if" and dig deeper for yourself. You'll be surprised at what you come up with.

Who Controls What's a Controlled Substance?

Carl Gunn — Wed, 11 Apr 2012 22:07:00 GMT

In my last post, I wrote about the categorical and modified categorical approaches to judging whether a prior conviction qualifies as an enhancement conviction under various federal sentencing enhancement statutes. One example of a potential argument that many might not think of can be found in two appeals I presently have pending in the Ninth Circuit and can also be found in a number of other appeals which have been taken by the Federal Defender office in San Diego, from which I got the idea and from which I borrowed briefing as a starting point in my cases. My appeals, which I coincidentally just argued today, are United States v. Alfonso Anorve-Verduzco, No. 11-50050, and United States v. Jose David Leal-Vega, No. 11-50065, and two of the multiple San Diego Federal Defender appeals, which were decided adversely, but on case-specific facts, are United States v. Pedro Sanchez-Zarate, No. 09-50462, unpublished memorandum disposition reported at 2010 WL 3989884, and United States v. Alonso Chavez-Gonzalez, No. 10-50615, unpublished memorandum disposition reported at 2011 WL 6322376.

The argument is this. While both California and federal statutes criminalize possession for sale of a "controlled substance," their schedules defining "controlled substance" are not identical. In particular, California "controls" and hence includes within its possession of a "controlled substance" offense several substances which the federal government does not include within its "controlled substance" schedules. Those include, but are not necessarily limited to, a narcotic called acetylfentanyl, a non-narcotic drug called apomorphine, and both "optical" and "geometrical" isomers rather than just the "optical" isomers included in the federal schedules. The inclusion of acetylfentanyl is discussed in my briefs in the Anorve-Verduzco appeal and the inclusion of apomorphine and "geometrical" isomers is noted in United States v. Ruiz-Vidal, 473 F.3d 1072 (9th Cir. 2007), which offered them as just some examples of what the court characterized as "numerous substances," id. at 1078.

When combined with application of the categorical approach, this means a California drug conviction doesn’t qualify as a prior conviction under federal drug conviction enhancement provisions unless the government can produce documents that satisfy the alternative, modified categorical approach which I also discussed in my last post. The government may be able to make that work in some cases, but it won’t be able to make it work in all cases, because (1) the records aren’t always there and (2) when the records are there, they don’t always say what the government needs them to say. For examples of debates about the modified categorical approach in specific cases, see the briefs in the cases I cite in the first paragraph, three of which are linked below; the briefs in the Ruiz-Vidal case cited above; and the briefs in the two other cases cited in the next paragraph.

Lest you think this argument is all pie in the sky dreaming, you should know that it has been explicitly accepted by the Ninth Circuit in three published immigration opinions – the Ruiz-Vidal I case cite above; the case of Mielewczyk v. Holder, 575 F.3d 992 (9th Cir. 2009); and the case of S-Yong v. Holder, 600 F.3d 1028 (9th Cir. 2010). It hasn’t gotten a reversal in a criminal appeal that I’m aware of yet (someone please correct me about that if I’m wrong), but it hasn’t been rejected in a published opinion and most of the unpublished opinions, including the two San Diego cases I cite in the first paragraph above, have avoided the issue by using documents under the modified categorical approach to affirm the conviction or sentence. And at least one district judge in the Central District of California has accepted the argument – in my Leal-Vega andAnorve-Verduzco cases (which were in front of the same judge). The judge gave the lower sentence in only the Leal-Vega case because he found the government satisfied the modified categorical approach in the Anorve-Verduzco case, but he accepted the argument about the overbreadth in both cases, as reflected in the Anorve-Verduzco minute order attached here. The Connecticut Federal Public Defender has also had success with overbroad Connecticut controlled substance schedules – on a fairly regular basis, I’m told – and one example of that can be found in an unpublished district court opinion in Samas v. United States, No. 3:10-CV-422 (JCH) that’s available on Westlaw, at 2011 WL 221866, and Lexis, at 2011 U.S. Dist. LEXIS 5671.

The criminal law areas in which we can apply this argument are numerous, moreover. Think of all the federal statutory and guideline provisions which enhance a sentence based on prior drug convictions. In the statutes, there’s the Armed Career Criminal Act codified at 18 U.S.C. § 924(e) and the prior drug conviction enhancements in 21 U.S.C. § 841 and 21 U.S.C. § 960. There’s also the definition of "aggravated felony" that’s incorporated into the sentence enhancement for illegal reentry in 8 U.S.C. § 1326(b)(2) and which may have served as the basis for a deportation that can now be challenged as invalid under United States v. Mendoza-Lopez, 481 U.S. 828 (1987); for a brief making this last argument, see the brief in the Chavez-Gonzalez case mentioned in the first paragraph, which is linked here. In the guidelines, there’s the illegal reentry guideline in § 2L1.2, the career offender guideline in § 4B1.1, and the firearm guideline in § 2K2.1. The government has tried to argue in my Leal-Vega andAnorve-Verduzco cases that the guidelines don’t use the federal definition of "controlled substance" and so the argument doesn’t apply to the guidelines, but that’s a major stretch for the reasons that are argued in the briefs in those cases.

So think about making this argument if your client’s sentence is being enhanced based on a California controlled substance conviction. If his or her sentence is being enhanced based on a prior controlled substance conviction in some other state, check that state’s controlled substance schedules to see if they’re also broader than the federal schedules. (The government claims the schedules are broader in every other state in the Ninth Circuit except Oregon.) We all know how draconian the various enhancements based on prior drug convictions are, so we’re talking about a great service to your client if you can make this argument work. For sample appellate briefs making the argument, see the San Diego brief linked here, which is what I initially worked off of, and my brief in the Leal-Vega case, which is linked here.

Enhance Your Litigation Skills by Challenging Enhancements

Carl Gunn — Tue, 03 Apr 2012 21:13:00 GMT

Enhancement provisions in various federal criminal statutes and the sentencing guidelines have become ubiquitous over the last 20 years. Among the more important examples are the Armed Career Criminal Act in 18 U.S.C. § 924(e); the career offender guideline in § 4B1.1 of the sentencing guidelines, which is also incorporated by reference into the base offense level provisions of the firearms guideline; the prior drug conviction enhancement provisions in 21 U.S.C. § 841; enhancements for prior convictions in the child pornography and sex offender statutes; and the "aggravated felony" enhancements in the illegal reentry statute and guideline.

The question arose early on about how to determine whether a prior state conviction qualified under the definition in federal enhancement statutes of, to give just some examples, "violent felony" or "crime of violence," "aggravated felony," or "controlled substance offense." Does a sentencing court look only at the required elements of the state offense of which the defendant was convicted in the prior case? Or can the court go beyond the statute of conviction and delve into what the defendant "really did" by looking at police reports, receiving affidavits, hearing witnesses, and such? (I use quotation marks around "really did" because there of course might be a dispute about what the defendant "really did.")

As those who practice regularly in federal court know, the Supreme Court decided in 1990 – in Taylor v. United States, 495 U.S. 575 (1990) – that it is the first of these which is the proper inquiry, adopting what the Court called a "categorical approach." The specific enhancement statute at issue in Taylor was the Armed Career Criminal Act, but this "categorical approach" has been extended to most (though not all) other enhancement statutes.

Under this categorical approach, what matters is what the defendant was convicted of, not what he "really did." In applying this test, a sentencing court must compare the elements of the statute under which the defendant was convicted with the definition in the federal enhancement statute, and the court must find the prior conviction does not qualify as an enhancement conviction if there is some possible conduct within the prior conviction statute that does not come within the definition in the federal enhancement statute. Put another way, one compares all possible conduct covered by the prior conviction statute to all possible conduct covered by the federal enhancement statute.

So far, so good. (Or at least better than otherwise.) Unfortunately, Taylor recognized an exception for what it termed "a narrow range of cases where a jury was actually required to find all the elements" of the federal enhancement offense. The Court indicated that this could be established by looking to court records such as jury instructions and the charging document. The courts of appeals, and ultimately the Supreme Court in Shepard v. United States, 544 U.S. 13 (2005), then went on to extend this exception – which we have come to know as the "modified categorical approach" – to convictions based on guilty pleas. In that context, courts may look at court records such as a transcript of the plea colloquy, a written plea agreement, and/or other "record[s] of comparable findings of fact adopted by the defendant upon entering the plea," Shepard, 544 U.S. at 21, but not look at documents such as police reports and presentence reports.

So now to the subject of this post, with an apology for the overly extensive introductory discussion. When this "modified categorical approach" first got recognized, courts – and, unfortunately, most attorneys – just assumed it applied to any prior conviction statute and to any facts the permissible court records might show were admitted at the time of the prior plea. But there’s a very strong argument that it shouldn’t be this way. As articulated by Chief Judge Kozinski of the Ninth Circuit in a concurring opinion in Li v. Ashcroft, 389 F.3d 892 (9th Cir. 2004):

[T]his [modified categorical] approach only works when the difference between the [prior] crime of conviction and the generic crime [in the federal enhancement statute] lies in the fact that particular elements in the former are broader than their counterparts in the latter. By contrast, when the crime of conviction is broader because it is missing an element of the generic crime altogether, we can never find that "a jury was actually required to find all the elements of" the generic crime.

Id. at 899 (Kozinski, J., concurring). As put in a later Ninth Circuit en banc opinion adopting Judge Kozinski’s concurring opinion as the law of the circuit – Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (en banc) – the modified categorical approach is proper only "when a statute is divisible into several crimes." Id. at 1073.

But here comes the problem: the law of the circuit got changed just four years later. (You say you thought there was this thing called stare decisis?) In last year’s opinion in United States v. Aguila Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc), the Ninth Circuit overruled Navarro-Lopez. The court held, over a strong dissent by Judge Berzon (technically a concurrence in the judgment, but a dissent on this point), that the modified categorical approach can be applied not just to what the court labeled "divisible statutes" but also to what the court labeled "missing element" statutes. In other words, the modified categorical approach can be applied to a prior conviction under any type of statute. So we’ve lost that issue.

For now, that is. Because where there’s problems, there’s solutions. And there’s a potential solution to this problem down the road, which is the reason for this post. It’s called the Supreme Court. Not our friends, you say? Well, on this stuff, they’ve actually given us as many, or more, good decisions as bad ones. Even the majority opinion in Aguila Montes de Oca acknowledges there’s a split in the circuits on this issue ("a bit of a jumble," it says), and Judge Berzon argues in her wonderful opinion that every single circuit to address the issue after two more recent, clarifying Supreme Court cases goes the other way. One fine cert petition written by Assistant Federal Public Defender Paresh Patel in Maryland, which is linked here nicely characterizes the circuits’ cases as "mass confusion."

Given this "mass confusion," we shouldn’t give up on the issue, and we should keep preserving it in the lower courts. It seems there’s a better chance than on most issues for Supreme Court review down the road, and, as noted in the paragraph above, the Court has been with us in this prior conviction enhancement area as much, if not more, than it’s been against us. Taylor and Shepard are two examples of favorable opinions and others can be found in Leocal v. Ashcroft, 543 U.S. 1 (2004); Begay v. United States, 553 U.S. 137 (2008); Chambers v. United States, 555 U.S. 122 (2009); and Johnson v. United States, 130 S. Ct. 1265 (2010). You’ll also note from the recency of those case cites that the Court has been willing to look at these issues pretty frequently.

So don’t give up on this. We’ve got a much better shot than the frog in the cartoon linked here.

"Draft" Transcripts? Or the Better Originals?

Carl Gunn — Mon, 26 Mar 2012 23:37:00 GMT

For my first post on this blog, I thought I’d share an idea that comes out of an experience from a trial I did about 10 years ago. A Central District of California AUSA very reasonably provided me with an interpreter’s "draft" transcripts of undercover recordings of meetings between my client and an undercover agent. Those of you who practice in the Central District may recall that the United States Attorney’s office has a policy that it will provide these "draft" transcripts only if defense counsel – as the proposed stipulation in one of my recent cases was worded – "agree not to use such draft transcripts for any purpose in any official proceeding in this case, including but not limited to cross-examining any witness at trial, presenting the drafts as transcripts whose accuracy was offered [sic] by the government, and/or using the draft transcripts at sentencing." The AUSA who provided the transcripts in my case was apparently unaware of this policy and didn’t seek such a stipulation. I was then able to use the "draft" transcripts to cross-examine the interpreter at trial, which became rather interesting when the "final" transcripts got worse (as they often seem to) and it was revealed that many of the adverse changes were made by the interpreter in response to suggestions by government agents – agents from the very same government agency that provided her translation agency with significant business. A transcript of the cross examination showing how the "draft" transcripts were used to challenge the "final" transcripts is linked here.

This turned out to be a one-time opportunity, however, because AUSA’s in my subsequent cases weren’t unaware of the office policy like the AUSA in this earlier case had been. These later AUSA’s sought to – ahh, what verb to use, maybe "extort"? – the standard stipulation from me and told me I’d have to choose. Either I wouldn’t get the "draft" transcripts at all or I’d get them but have to restrain myself when the translator made them worse in response to the suggestions by the agents from the same government agency that paid her.

This didn’t sit well with me. First, I thought the jury ought to know things like why changes were made. Second, what changes were made and why they were made actually did seem to be relevant. Third, doing the cross examination had been fun.

So I did what all good public defenders and defense lawyers do when the government says, "You can’t have that!" I said, "Says who?" Then – because this is the next thing good public defenders and defense attorneys do after saying, "Says who?" – I went out to look for who, if anyone, said anything one way or the other about this.

And what I found was very interesting. First, it was interesting that there wasn’t very much to find; in particular, there were no court of appeals cases on the question at all. Second, in the cases I did find, there was some support for my position that the defense is entitled to so-called "draft" transcripts. I found there were district court cases written by two different district judges in Illinois, one of whom agreed with my position that the defense is entitled to "draft" transcripts without any stipulation and the other of whom disagreed. The judge who supported us reasoned that the transcripts were written statements discoverable under former Rule 16(a)(1)(A) (now Rule 16(a)(1)(B)) of the Federal Rules of Criminal Procedure. The judge who went against us didn’t say, at least expressly, that she disagreed with this, but reasoned that the transcripts weren’t relevant because of the general rule that it’s the tapes that are the actual evidence and the transcripts are just to help the jury in listening to the tapes.

So what does a good public defender or defense lawyer do next? File a motion, of course. The most recent version of the motion I’ve filed on this question is linked here. It’s far too long to reproduce in a blog post, but you’ll see the key cases are United States v. Finley, No. 87 CR 364-3, 4 & 6, 1987 WL 17165 (N.D. Ill. Sept. 3, 1987) and United States v. Shields, 767 F. Supp. 163 (N.D. Ill. 1991) – which are both written by the judge who agrees with the defense position – and United States v. Bailey, 689 F. Supp. 1463, 1469-70 (N.D. Ill. 1987) – which goes against the defense position. Even Bailey isn’t that bad, though, because its rationale was that it’s not the transcripts of the tapes, but the tapes themselves – which in that case were in English – which are the evidence and the transcripts are only aids to the jury’s understanding. This rationale doesn’t extend to foreign language recordings because the general rule that the tapes are the evidence and the transcripts are only aids to the jury's understanding doesn’t apply to foreign language recordings; rather, it’s the transcripts that are the admissible evidence where the tapes are in a foreign language. See, e.g., United States v. Armijo, 5 F.3d 1229, 1234-35 (9th Cir. 1993).

So where does this leave us? It seems like there’s a good, solid argument – supported by at least some authority – that we’re entitled to the "draft" transcripts without a stipulation. And maybe a better word than "draft" is "original." Let’s tell the judges that we want the "original" transcripts, whatever the government may want to call them, not the government’s "new and improved" version. Especially if that "new and improved" version got improved by the government agents as much as the translator.

SENDING THE WRONG MESSAGE: US v. SANCHEZ

Ronald Kaye — Wed, 02 Nov 2011 19:58:00 GMT

In United States v. Sanchez, 10-50192 a panel of the Ninth Circuti Court of Appeal reversed the conviction of an alleged drug smuggler where the prosecutor told the jury in San Diego at trial that acquitting the defendant would "send a memo to all drug traffickers." In the opinion written by Judge Harry Pregerson, the Court stated "prosecutors may not point to a particular criss in society and ask the jury to make a statement with their verdict."

If you or someone you know is charged with a drug crime please call the experienced lawyers of KMB.

DON'T TASE ME BRO: Brooks and Mattos

KMB — Tue, 18 Oct 2011 17:11:00 GMT

In two related opinions issued by the Ninth Circut Court of Appeal sitting en banc in Mattos v. Agarano et al. and Brooks v. Seattle, et al. 08-15567 the Court found the use of a taser, in two specific factual circumstances, unconstitutional. In Mattos the plaintiff, a vicitim of domestic violence, was in the middle of a dispute between her husband and four police officers when one of the officers gave her two jolts from his Taser set in dart mode. In Brooks, the plaintiff was seven-months pregnant and driving her son to school when she was stopped by police, ticketed for driving 12 miles over the 20-mph speed limit and then shot with a stun gun three times after refusing to sign the citation.

While the Court found the particular use of force unconstitutional it also held the defendant officers weren't liable in the civil suits filed against them because the law governing Taser use wasn't clearly established at the time of their arrests in 2006 and 2004 respectively.

4 of the 11 judges dissented, including Chief Judge Alex Kozinski, who stated that Tasers were still a safer alternative to more dangerous means of subduing arrestees.

If you or someone you know has been a victim of excessive force please don't hesitate to contact the attorneys of KMB.

STRIPPED OF ALL DIGNITY: Florence v. Board of Chosen Freeholders of the County of Burlington, New Jersey

KMB — Mon, 03 Oct 2011 22:19:00 GMT

In Florence v. Board of Chosen Freeholders, et al, 10-945, the United States Supreme Court will hear arguments on October 12, 2011 regarding whether the Fourth Amendment permits a jail to conduct suspicionless strip searches of individuals arrested for any minor offense no matter what the circumstances?

In Florence, a New Jersey state trooper pulled over Albert Florence and his family on his way to a celebration at his mother-in-law's house. He spent seven days in jail because of a mistaken warrant that said he was was wanted for failure to pay a court fine. During that time, he was strip searched twice. He is joined in his suit by others who were allegedly strip searched after "driving with a noisy muffler, failing to use turn signal, and riding a bicycle without a bell."

The attorneys at KMB are experienced in handling cases of abuse within our jails and prisons.

PENAL CODE 490.5: Civil Recovery for Sticky Fingers

KMB — Thu, 22 Sep 2011 20:48:00 GMT

You may be surprised to learn that California (and indeed all 50 states) has a so-called "civil recovery" statute on the books for shoplifting cases. Specifically, California Penal Code section 490.5(b) provides that retailers can recover between $50 and $500 dollars from an individual accused of shoplifting even in the absence of a criminal conviction. This provisoin applies no matter what the value of the property actually taken or whether the property was in fact returned to the shelves! Additionally, if a minor is accused of shoplifting, the retailer is entitled to recover against their parents. In general, retailers outsource the collection of this civil recovery to a collection agency and then split the money.

Civil remedies are becoming increasingly popular in crimnial cases. Please contact the attorneys of KMB if you are faced with these harsh dual penalties.

US v. JONES: EVERY STEP YOU TAKE, I'LL BE WATCHING YOU...

KMB — Mon, 12 Sep 2011 18:18:00 GMT

In November 2011, the United States Supreme Court will hear arguments in United States v. Jones, 10-1259, to decide the issue whether law enforcement needs a search warrant to place a GPS device on a a suspect's car to track its movement? In Jones the government suspected a Washington D.C. nightclub ovwner of selling cocaine. It placed a GPS device on his vehicle and tracked his movements for over a month in the State of Maryland, ultimately using the evidence obtained to convict him of conspiracy to sell cocaine. In arguing that no warrant was necessary for such a search the government analogized to standard vehicle "tailing" techniques and stated "Law enforcement has not abused GPS technology." The case reaches the Supreme Court after a three judge panel of the United States Court of Appeal for the District of Columbia held that the GPS monitoring required a warrant stating "A person who knows all of another's travel can deduce whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular politcal groups..."

The atttorneys of KMB closely monitor this and other Fourth Amendment issues so that they can better serve their clients as technology evolves.

STARR v. BACA: I SUED THE SHERIFF (AND THE DEPUTY)

KMB — Fri, 29 Jul 2011 17:25:00 GMT

In Starr v. Baca,09-55233 (July 26, 2011) a three judge panel of the Ninth Circuit Court of Appeal ruled that Los Angeles County Sheriff Lee Baca can be sued for deliberate indifference to racial gang violence in the jails he supervises. In the lawsuit, plaintiff Dion Starr alleges that he was stabbed 23 times by Latino gang members after a deputy unlocked his cell door. The panel also denied an appeal, made by Baca in February, for a full eleven judge panel of the Ninth Circuit to consider his immunity claim.

The Law Offices of Kaye, McLane, & Bednarski, LLP. currently represents several individuals who suffered abuse within the Los Angeles County jail system. If your civil rights were violated please don't hesitate to call for a free consultation.

U.S. v. BAGDASARIAN: Shooting (Your Mouth Off) at Obama

KMB — Thu, 21 Jul 2011 18:01:00 GMT

In United States v. Bagdasarian, 09-50529 (July 19, 2009) a divided panel of the Ninth Circuit Court of Appeal held that the defendant's racist 2008 post suggesting than President Obama should be shot was protected speech and overturned his criminal conviction for violating the federal statute prohibiting threats to kill, kidnap, or harm the presidential candidates. While the court found the language in Mr. Bagdasarian's 1 a.m. chat posts "repugnant" it ultimately concluded that no reasonable person would have taken them seriously and they conveyed "no explicity or implicit threat on the part of Bagdasarian that he himself would kill or injure Obama."

The attorneys of Kaye, McLane, & Bednarski, LLP. respresent individuals in all aspects of their appeals before the Ninth Circuit.