Sunday, February 19, 2017

Case o' The Week: Are Cops Deterred if Rights Inferred? - Loucious and deviant Miranda warnings

  You have the right to remain silent. 
  You have the right to infer the potential meaning of additional rights, from conclusions you should draw from the rights that may or may not be explained to you.
 United States v. Loucious, 2017 WL 510457 (9th Cir. Feb. 7, 2017), decision available here.

Players: Decision by Judge Gould, joined by Judges Clifton and Watford. Hard-fought appeal by D. Nev. AFPD Wendi Overmyer.

Facts: Vegas cops stopped a car for speeding. Id. at *1. The passenger, Loucious, had an outstanding arrest warrant: he was pulled out of the car and a revolver was discovered in the back seat near where he had been sitting. Id. Loucious was taken into custody. 
  Before he was questioned, Loucious was read Miranda warnings that omitted the right to consult an attorney before questioning. Id. at *2. Instead, the rights advised him that he had the right to speak to an attorney during questioning. Id. 
  The district court granted Loucious’ motion to suppress the statement, concluding that the right to consult with a lawyer before questioning “could not have been inferred from the warnings given.” Id. 
  The government appealed.

Issue(s): “The parties dispute whether the warnings here administered by the LVMPD conveyed to Loucious his Miranda rights based on the addition of the words ‘during questioning.’ The United States contends that the warnings were sufficient because the right to consult with an attorney prior to questioning can be inferred from the warnings given. The warnings explicitly stated that Loucious had the right to the presence of counsel during questioning and that he had the right to have counsel appointed before questioning. Loucious argues that the warnings were deficient because they did not say that Loucious could consult with an attorney before questioning so that he could decide whether to speak with officers at all.” Id. at *3.

Held:We conclude that Miranda warnings need not follow a precise formulation, and here the warnings reasonably conveyed that Loucious had the right to consult an attorney before questioning. So we reverse the district court’s grant of the motion to suppress.” Id. at *1. 
  “After discussing instructive cases from our court and the Supreme Court, we conclude that the Miranda warnings administered by the LVMPD conveyed the substance of the warning that Loucious could consult with an attorney before questioning.” Id. at *3.

Of Note: Honestly, how hard is it to issue a standard Miranda card? Way back in ’85, the Ninth upheld quirky warnings from Guam that also did not expressly “convey notice of the right to consult with an attorney before questioning.” Id. at *3. The Court suggested, however, that Guam revise its form to more clearly inform defendants of their right to counsel before questioning. Id. 
  Judge Gould revisits that clear advice to Guam, in Loucious: “police can always be certain that Miranda has been satisfied if they simply read the defendant his rights from a prepared card . . . A verbatim reading would, in all instances, preclude claims such as Loucious’s.” Id. (quotations and citations omitted). 
  Note that in this case, the officer read the warnings – this wasn’t a case of a cop mis-remembering oral warnings. Miranda was decided in 1966: after 51 years and innumerable decisions, are these deficient printed warnings really just sloppy police work, or is law enforcement deliberately testing the boundaries of Miranda’s requirements?

How to Use: Two sentences saved Vegas's deviant warnings. Loucious was told that if he couldn’t afford an attorney, “one will be appointed before questioning.” Id. at *2. Judge Gould builds off of that warning, and links it to the warning that Loucious had a right to an attorney during questioning. We’re told that when paired, those two warnings support an inference that Loucious should have concluded that he had a right to consult with an attorney before questioning. Id. at *4. 
  When cops get creative with Miranda warnings in your case, check to see if these paired admonitions took place – if not, the inference drawn in Loucious may not be possible.
For Further Reading: Will future Vegas appeals be decided by a new Twelfth Circuit Court of Appeals? (A proposed circuit composed of a weird Western donut encircling three states in the old-new Ninth: California, Oregon and Hawai'i).
  The San Francisco Chronicle reviews the current state of Arizona Senators' efforts to split the Ninth, in an article here
  (No mention of the poor District of Guam in the article - maybe it'll be the new Thirteenth?)

Steven Kalar, Federal Public Defender N.D. Cal. Website at

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Sunday, February 12, 2017

Case o' The Week: Process Due to Aliens Few - Peralta-Sanchez, Sec. 1225 Removals, and Due Process

   An alien with an agg felony has the right to hire an attorney at his or her expedited removal hearing.
  Surely an alien with no priors, caught within 100 miles of the border, has similar due process rights to hire counsel?
  Not so much. 
 (And don’t call us “Shirley.”)
United States v. Peralta-Sanchez, 2017 WL 510454 (9th Cir. Feb. 7, 2017), decision available here.

Players: Decision by Judge Bybee, joined by Judge N.R. Smith. Dissent by Judge Pregerson.

Hon. Judge Jay Bybee
Facts: Border agents arrested Peralta-Sanchez just north of the border. Id. at *1. He was charged with improper entry, 8 USC § 1325, and being a removed alien found in the U.S., 8 USC § 1326. Id. He was still on supervised release for his last illegal reentry conviction. Id. 
  Peralta-Sanchez had a number of felony convictions and removals. Id. at *2. In 1999, he suffered a removal order after a felony DUI. Id. In 2012, he suffered an expedited removal proceeding. Id. 
  In the present case, Peralta-Sanchez challenged the § 1326 charge, contending that the ’99 removal was invalid because DUI is no longer a “crime of violence,” and challenging the 2012 removal because he was deprived of his (purported) due process right to seek counsel or withdrawal of his application. Id. That challenge was denied, and he was convicted after a bench trial (based solely on the 2012 order of removal). Id. at *3.

Issue(s): “Peralta argues that his expedited removal was fundamentally unfair and thus cannot serve as the basis of the illegal reentry count, because he was neither entitled to hire counsel nor advised of his right to apply for withdrawal of his application for admission.” Id. at *1. 
  “The question we must ask in this case is: To what process – statutory and constitutional – was Peralta entitled?” Id. at *5. 
  “We have never addressed . . . whether due process requires that an alien be offered the opportunity to secure counsel in the context of an expedited removal under § 1225.” Id.

Held:We find that Peralta had no Fifth Amendment due process right to hire counsel in the expedited removal proceeding and that he was not prejudiced by the government's failure to inform him of the possibility of withdrawal relief. Concluding that his 2012 expedited removal was not fundamentally unfair, we affirm his § 1326 conviction and sentence for illegal reentry. Because the revocation of his supervised release was premised on the § 1326 conviction, we affirm the district court's revocation as well.” Id. at *1.

Of Note: In a compelling dissent, Judge Harry Pregerson notes that “a staggering 83% of the people removed from the U.S. in 2013 . . . were removed without a hearing, without a judge, without legal representation, and without the opportunity to apply for most forms of relief from removal.” Id. at *13. He persuasively argues for a modest due process right: the right to retain counsel, at one’s own expense, to contest a § 1225 removal. Id. 
Hon. Judge Harry Pregerson
  The dissent has the best of this argument – hard to understand why aggravated felons have the right to retain counsel at their expedited § 1228 removals, see id. at *6 (discussing rights to counsel at various removal proceedings), but a non-felon alien would be denied this basic due process right at their § 1225 removal hearing.

How to Use: Judges Bybee and Pregerson both take pains to emphasize that Peralta-Sanchez only deals with due process rights at § 1225 proceedings. Section 1225 proceedings are expedited removals that apply to specified groups of aliens. Id. at *3. 
  There is, by contrast, a statutory right to retain counsel at § 1228 hearings (expedited removals of agg felons).  
  When mulling your § 1326(d) motion keep this important distinction in mind: a § 1228 expedited removal, without notice of the right to retain counsel, is the first step towards a righteous due process challenge. See United States v. Reyes-Bonilla, 671 F.3d 1036, 1047 (9th Cir. 2012).  
Hon. District Judge William Orrick
For Further Reading: Is it legal for President Trump to “coerce local authorities” to “abandon Sanctuary City laws and policies,” by withholding federal funds? ND Cal D.J. Orrick will decide: SF’s suit against the President is now in his court. See suit here.  
For a thoughtful analysis of the tough questions that await WHO, see Vik Amar and Michael Schaps, How Strong is San Francisco’s ‘Sanctuary City’ Lawsuit Against the Trump Administration, available here.

Image of Judges Bybee  from
Image Judge Pregerson from: 

Image of District Judge William Orrick from 

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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