Sunday, March 03, 2019

Case o' The Week: "Hall"marks of a "normal" family? - Hall and Conditions of Supervised Release


  What is a “normal” family, and “normal” familial relations?


   (The Ninth, to its great credit, doesn’t know either).
United States v. Leroy Hall, 912 F.3d 1224 (9th Cir. Jan. 11, 2019), decision available here.

Players: Per curiam decision by Judges Gould, Berzon, and ED NY DJ Block. Nice win (again) for AFPD Elisse Larouche (argued), and AFPD Dan Kaplan, D. Arizona FPD.  

Facts: Hall and his son were sentenced to prison for a fraud involving a false money orders. Id. at 1226. (The pair were already incarcerated for a separate joint criminal enterprise.). Id. 
   Over Hall’s objection, the district court imposed a condition of supervised release, providing that he was “permitted to have contact with [his son] only for normal familial relations but is prohibited from any contact, discussion, or communication concerning financial or investment matters except matters limited to defendant’s own support.” Id.

Issue(s): “Hall objected at sentencing that the condition is unconstitutionally vague.” Id.

Held: “We agree, and strike the offending words ‘only for normal familial relations’ from the condition.” Id. 
  “If the district court meant only to prohibit Hall and [his son] from participating in illegal activities together, it could have said exactly that and no more, as defense counsel suggested at the resentencing hearing.” Id. at 1227.

Of Note: This opinion is the second time the district court was reversed on conditions for this defendant. In a previous sentencing, the district court had prohibited Hall from associating with any felon, absent permission from the P.O. Id. at 1226 & n.1. The Ninth reversed in a mem dispo, because the district court had imposed that condition “without justifying or limiting the restriction on Hall’s right to associate with his children.” Id.

How to Use: For a brief decision, this opinion is surprisingly rich in useful concepts for future S/R fights. 
  First, as the Ninth explained in the mem dispo described above, and again emphasized here, conditions that purport to limit contact with the defendant’s children are going to get “careful” review. Id. That familial contact is a “fundamental” right. Id. 
  The Ninth also is skeptical of a condition that limits contact to “normal familial relations.” As the Court asks, what is a “normal” family, and what does a “normal” family “normally” do? Hall is a welcome Ninth shout-out to the “tremendous diversity of family structures and family habits” in America. Id. at 1227. 
  Finally, what is the springboard for the Ninth’s holding that the condition was unconstitutionally vague? Johnson v. United States (2015): a SCOTUS gift that keeps on giving. Id.  
                                               
For Further Reading: Before a defendant can be incarcerated for a violation of supervised release, the Sixth Amendment requires that he or she be afforded a jury trial and that the alleged facts be proved beyond a reasonable doubt. Makes perfect sense to us in the defense bar – and maybe to the Supreme Court as well!
  Last Tuesday, in the Haymond argument, Justice Gorsuch wondered why the federal government was “so anxious to avoid having the involvement of citizens in this process?” He wasn’t alone – a clear majority of SCOTUS (including the strong voice of Justice Sotomayor) seemed to agree. See Gorsuch and Sotomayor Team Up Yet Again in Defense of the Sixth Amendment, available here
  We’ll concede there may be an asterix or two in this hoped-for victory: the Haymond statute at issue requires a five-year term after a S/R revocation for child porn (thus triggering all sorts of Apprendi issues). See SCOTUS blog article here
  Must “vanilla” S/R revocations -- that don’t require custody terms -- also be proved beyond a reasonable doubt in a jury trial? We’ll never know if we don’t fight for it – preserve Haymond objections in supervised release revocations.






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

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