Monday, May 07, 2007

An interesting day in the 9th, where in one opinion there are dueling concurrences over what role a judge should play in Ameline remands, an Apprendi error that was deemed harmless, and an en banc that interprets "bringing to" to mean where illegal aliens are dropped off, and thus is a circuit split.

US v. Fifield, No. 06-30171 (5-7-07). The defendant got an Ameline remand, but the court just resentenced, without asking counsel's views on sentencing before the final decision. This is the requirement in U.S. v. Montgomery, 462 F.3d 1067 (9th Cir. 2006). The 9th (Tashima) finds error and orders a remand for a resentencing. In a concurrence, O'Scannlain bemoans the transformation of the neutral judge in an advisory system into an active participant in having to bear the burden, shoulder the responsibility, take the first step in soliciting counsels' views. O'Scannlain sees this as an affront to the common law and shaking the very foundations of the Anglo-American jurisprudence. ("Montgomery requires judges to overlook their limited role in a centuries-old American tradition of adversarial litigation.") O'Scannlain is bound by Montgomery but urges this to go en banc to free the judiciary from its crushing and unseemly task. Tashima and Berzon then take the unusual step (since Tashima authored the opinion) of filing a separate concurrence to disagree with O'Scannlain, pointing out that Ameline is judicially crafted and requires nothing more, nor nothing less, than notice and an opportunity to be heard. The court must do due process. Tashima concludes that, "I do not believe that requiring 'sentencing judges to notify counsel' places an 'undue burden' upon them or, in any manner, 'misapprehends the proper role of the judge.'"

Congrats to AFPD John Rhodes from the D. Montana (Missoula).

US v. Hollis, No. 05-30611 (5-7-07). The 9th affirms a drug conviction and sentence (240 mos) despite Apprendi error. The defendant was convicted of distribution of "cocaine base." He argued that the mandatory minimum was inappropriate because the indictment and special verdict only stated "cocaine base" and not "crack." There could be other forms of cocaine base, argues defendant. "True," answers the 9th, and agrees that the indictment must state "crack" to get the mandatories. This agrees with the other circuit that considered this post-Apprendi. However, although there was Apprendi error, the evidence was overwhelming (you see where this is going) and so any error was harmless. The 9th also found no merit in the argument that 404(b) of other drug sales was improperly admitted on the basis that the only evidence was a cooperating witness. The 9th said that went to the weight. A better argument would have been at the time of the prior acts, or type of drugs.

US v. Lopez, No. 05-50415 (5-7-07) (en banc). The 9th (Reinhardt with Schroeder, Pregerson, Kozinski, Hawkins, S. Thomas, Graber, Gould, Berzon, and Smith)) rules that under 1324(a)(2):

We hold that although all of the elements of the "bringing to" offense are satisfied once the aliens cross the border, the crime does not terminate until the initial transporter who brings the aliens to the United States ceases to transport them -- in other words, the offense continues until the initial transporter drops off the aliens on the U.S. side of the border. At that point the offense ends, regardless of the judicial district in which the termination occurs.

A defendant who transports, or aids and abets, after the initial drop off, but before the so-called final destination, is "only" guilty of transporting "within" the U.S. The decision (en banc) canvases the statutory language and intent, and holds that the offense must end when the aliens are dropped off.

Concurring, Bea would find that under a strict reading the statute, the crime ends once the border is crossed. This expansion to the drop off is a case of statutory interpretation that is uncalled for.

Dissenting, Tallman (joined by Rawlison, Clifton and Callahan) decry that this circuit contravenes established precedent in other types of smuggling cases (drugs or contraband), undermines congressional intent, and is contrary to the DC, 1st, 3d, 5th, 6th, 8th, 10th, and 11th circuits).

Congratulations to AFPD Steven Hubachek of the Federal Defenders of San Diego.


Post a Comment

<< Home