Case o' The Week: Ninth cuts him free (on 924(c)) -- Benally and Mens Rea for "Crimes of Violence"
|Hon. Judge Noonan|
The Ninth's not buffaloed, Springfield. United States v. Benally, 2016 WL 4073316 (9th Cir. Aug. 1, 2016), decision available here.
Players: Decision by Judge Noonan, joined by Judges D.W. Nelson and O’Scannlain. Big win by D. Arizona AFPD Dan Kaplan.
Facts: Benally was convicted of a § 924(c) charge, with a federal involuntary manslaughter (18 USC § 1112) as the underlying “crime of violence.” Id. at *1.
Issue(s): “Joe Arviso Benally appeals a jury conviction for involuntary manslaughter under 18 U.S.C. §§ 1112 and 1153 and for using a firearm in connection with a “crime of violence” under 18 U.S.C. § 924(c).” Id. at *1.
Held: “We hold that involuntary manslaughter is not a ‘crime of violence’ and reverse the § 924(c) count of conviction.” Id. at *1. “After Leocal and Fernandez–Ruiz, a ‘crime of violence’ requires a mental state higher than recklessness—it requires intentional conduct. See Covarrubias Teposte, 632 F.3d at 1053 (“The effect of our holdings is that in order to be a predicate offense under either 18 U.S.C. § 16 approach, the underlying offense must require proof of an intentional use of force or a substantial risk that force will be intentionally used during its commission.” (quoting United States v. Gomez–Leon, 545 F.3d 777, 787 (9th Cir. 2008))). Involuntary manslaughter under § 1112, requiring a lesser mental state of “gross negligence,” prohibits conduct that cannot be considered a “crime of violence” under § 924(c)(3). Under the categorical approach, therefore, involuntary manslaughter cannot be a “crime of violence.” Springfield’s opposing rule is clearly irreconcilable with the reasoning and results of Leocal and Fernandez–Ruiz and is no longer good law. Benally's § 924(c) count of conviction for using a firearm in connection with a ‘crime of violence” is REVERSED.’ Id. at *4.
Of Note: In a dusty old decision, the Ninth had held that involuntary manslaughter under § 1112 was a crime of violence, concluding that “gross negligence” was sufficient mens rea for a c.o.v. United States v. Springfield, 829 F.2d 860 (9th Cir. 1987). Here, a mere three-judge panel concludes that Springfield is no longer good law – no en banc court involved. This welcome result is courtesy of our friend, Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (en banc): a case that allows a three-judge panel to determine that Ninth caselaw is “effectively overruled” by intervening higher authority (in this case, the intervening authority was Leocal and Fernandez-Ruiz).
For Johnson warriors, Miller v. Gammie is the broom three-judge panels will use to sweep out cobwebbed Ninth law. Judge Noonan’s analysis is a clear and helpful guide for that housekeeping. See Benally at *3.
How to Use: This tip seems self-evident, but because the government is throwing everything against the Johnson barn door it is worthwhile to point it out. Neither Leocal or Fernandez-Ruiz discuss the mens rea necessary to commit a “crime of violence” for § 924(c). Instead, those cases interpret the “crime of violence” mens rea for 18 USC § 16. Judge Noonan undertakes the common sense analysis in Benally: “because the wording of the two statutes is virtually identical, we interpret their plain language in the same manner.” Id. at *3 (footnote omitted). Benally teaches that Johnson is the hammer: the whole USC and USSG look like nails.
For Further Reading: In a bevy of briefs urging Johnson stays, the government has told district courts that they should look to the Ninth’s Jacob and Gardner stayed SOS cases.
We agree: that brace of cases is critical to the stay analysis.
On August 1, the Ninth Circuit lifted the stays on both of these cases, over briefed government objection, and sent them both to the district court to get them resolved. See Jacob v. United States, No. 15-73302 (9th Cir. Aug. 1, 2016) (Ord.), Gardner v. United States, No. 15-72559, No. 15-73302 (9th Cir. Aug. 1, 2016) (Ord.).
Folks are incarcerated, overserving illegal sentences, and deserve their day in court: let’s get this litigation rolling. See United States v. Castilleja, 2016 WL 3024108 (E.D. Wa. May 5, 2016) (Ord. denying stay).
Image of the Honorable Judge Noonan from https://www.flickr.com/photos/cmichel67/8964238814 (Incidentally, photographer Christopher Michel’s excellent series of photos of Judge Noonan highly commended http://www.christophermichel.com/People/Judge-John-Noonan/ )
Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org