Case o' The Week: Ninth Rejects Gov't Position on Elements (yet Defense Takes the Dive!) - Carey, Statutory Interpretation, and Affirmative Defenses

“[I]f Carey looks before he leaps, he might see that the two decisions are not, as he claims, irreconcilable.”

  United States v. Carey, 2019 WL 2998728 (9th Cir. July 10, 2019), decision available here.

 Players: Decision by Judge M. Smith, joined by Judge Schroeder and SD NY DJ Rakoff.

   Hard-fought appeal (with admirably sophisticated statutory challenges) by AFPD Reed Grantham, Eastern District of California Federal Public Defender.

Mr. Austin Lee Carey

Facts: Carey was found suspended, high in a Yosemite tree. Id. at *1. He had a harness, wingsuit, and parachute – gear used for “BASE” jumping. Id. 

  Carey was rescued and charged with misdemeanors, including 36 CFR § 2.17(a)(3), “delivering a person by . . . airborne means . . . except pursuant to . . . a permit.” Id. at *2.

  In its pretrial brief the government explained that the government had to prove beyond a reasonable doubt that Carey did not have a permit. Id.

  The government failed to so prove in the bench trial: Carey moved for a Rule 29 acquittal. Id. The motion was denied in a written order by the Magistrate Judge.  Id.

Issue(s): “The dispute on appeal is . . . straightforward: Carey contends that § 2.17(a)(3)’s permit exception is an element of the offense, and thus that the government had to prove the nonexistence of a permit beyond a reasonable doubt, while the government argues that it is an affirmative defense for which Carey bore the burden of proof.” Id. at *3.

Held: “In summation, § 2.17(a)(3)’s permit exception is best understood as an affirmative defense under McKelvey . . . , not an element of the offense under Vuitch. We therefore conclude, like the magistrate judge and the district court, that Carey had—and did not meet—the burden of proof at trial.” Id. at *8.

Of Note: Don’t dismiss this parachute-permit case as a minor misdo opinion. Carey is an important decision on statutory analysis and affirmative defenses.

  On appeal Carey persuasively argued that the Supreme Court’s 1971 Vuitch decision required the permit issue to be treated as an element: after all, it was embedded in the regulation itself.

  The government (less-persuasively) turned to the 1922 McKelvey case from the Supremes, arguing that the permit was just an affirmative defense.

  In a decision of first impression, Judge M. Smith unfortunately agrees with the government, finds no conflict between these two SCOTUS decisions, and gives the nod to the old McKelvey approach as applied to this regulation.

  The Ninth assures us that this outcome is straightforward (though the Court struggles through many pages of analysis to finally get to the government’s position). 

  Carey merits a close read when affirmative defenses are in dispute – the McKelvey / Vuitch tension remains, and other regs or statutes may produce a different outcome for the element / affirmative defense debate.   

How to Use: Wait – how’d the Ninth get to this issue? Recall that the AUSA assured the Magistrate Judge that the government bore the burden of proving the lack of a permit. How does the government now win on appeal? Because government concessions are not (necessarily) waivers or forfeitures -- what would be plain error for the defense is just a misstep for the government. 

  The Ninth explains that the Court is “not obliged . . . to hold the government to this [trial] position, because even if a concession is made by the government, we are not bound by the government’s ‘erroneous view of the law.’” Id. at *3 (quotations and citations omitted).

   This is an aggravating rule, and one that will not save every mistake by an AUSA, but beware of the government’s “second bite at the appellate apple” as as you mull trial strategies.

                                               

For Further Reading: During the trial proceedings, the Magistrate Judge read an article about Mr. Carey in the Fresno Bee -- and then cited it in his written order denying the Rule 29 motion! Id. at *9. (Imagine if a jury’s guilty verdict form referenced a newpaper article not in evidence . . . .)

   The article’s hearsay recitation contained deeply prejudicial information that was not part of the bench trial. Despite this “troubling” reliance on facts not on evidence, the Ninth just “admonish[ed] [the Magistrate Judge] in the future to be more circumspect in referencing or considering facts not properly admitted into evidence.” Id. at *11.

  The Ninth then upheld the denial of Carey’s recusal motion. Id.

  The Fresno Bee article that was read and cited by the M.J. (with videos of Mr. Carey plummeting off of Yosemite peaks) is available here.  

Images of Austin Carey from https://www.fresnobee.com/news/local/article166303332.html

Image of Fresno Bee from https://www.bigvalleynews.com/index.php/news/local-news/1066-ken-riddick-promoted-to-president-and-publisher-of-fresno-bee 

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

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Case o' The Week: No Old Know, but Now New Knew - Benamor and Knowledge Requirements in Sec. 922(g)(1) Cases

   Taking antique shotguns for granted?

   Fine for the government.

   (Less fine with Vinnie Jones).

United States v. Benamor, 2019 WL 2375885 (9th Cir. June 6, 2019), decision available here.

Players: Decision by Judge Graber, joined by Judge Bybee and DJ Harpool.

Facts: Cops found a shotgun in a van which Benamor, a felon, had driven. Id. at *1. Benamor went to trial on § 922(g) charges. Id. at *2. 

  At trial, an agent testified the shotgun could not have been manufactured before 1915. Id. Benamor moved for a Rule 29 and for instructions that the government had to prove that he knew the gun was manufactured after 1898. Id.  The motions were denied and Benamor was convicted. Id.

Issue(s): “Because firearms manufactured in or before 1898 do not qualify as ‘firearms’ under § 922, Defendant argues that the district court erred by refusing to instruct the jury that, to convict, they had to find that Defendant knew that his firearm was manufactured after 1898.” Id. at *1. 

  “Although Defendant’s shotgun was old, it was not ‘antique’ within the statutory definition, because it was manufactured after 1898. Defendant does not dispute that his shotgun met § 921(a)(3)’s definition of a firearm. Yet he argues that the government was required to prove his knowledge that the shotgun lacked the antiquity that would have placed it beyond § 922(g)’s reach.” Id. at *2.

Held: “Every circuit to address the ‘antique firearm’ exception in the criminal context has held that the exception is an affirmative defense to a § 922(g) prosecution, not an element of the crime.” Id. at *3. 

  “We affirm.” Id. at *1.

Of Note: In addition to the “antique” holding, Benamor also has an interesting Confrontation Clause analysis. Id. at *4. In the guise of “effect upon a witness,” the AUSA elicited incriminating hearsay statements from Benamor’s landlord to the cop. Id. The AUSA then argued this hearsay in closing. 

  The Court finds a Confrontation Clause / Crawford error (although it declines to reverse). Id. at *5. Nonetheless, Benamor is useful to brush-back when an AUSA smuggles testimonial hearsay through an “effect on the hearer” theory.

How to Use: Benamor is, respectfully, wrong – at least as it recounts the elements of a federal gun case.

  Quoting the (now erroneous) Ninth’s en banc decision in Nevils, Judge Graber explains that “To convict someone under § 922(g)(1), the government must prove three elements:

  (1) the defendant was a felon;

  (2) the defendant knowingly possessed a firearm or ammunition; and

  (3) the firearm or ammunition ‘was in or affecting interstate commerce.’” Id. at *2.

  At least as of Friday, that list is missing an element. In the Rehaif decision delivered June 21st, Justice Breyer writes that in a § 922(g)(1) prosecution, “the word ‘knowingly’ applies both to the defendant’s conduct and to the defendant’s status. To convict a defendant, the Government therefore must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.” Rehaif v. United States, 2019 WL 2552487, at *2 (emphasis added), available here.

  Did Benamor’s indictment allege that he knew that he was a felon? Was the jury instructed that it had to find that Benamor knew he was a felon? Was there any evidence in this trial that Benamor knew of his status as a felon? No, no, and most likely, no.

   The Benamor decision happens to have a nice little discussion of “knowledge” in the context of § 922(g)(1) cases. See id. at *2 (discussing Beasley, 346 F.3d 930, 934 (9th Cir. 2003)); id. at *3 (discussing Staples). Glom these “knowledge” cases onto Rehaif’s “knew status” element –much mischief awaits.     

                                               

For Further Reading: Our gun cases are getting a hard Rehaif review this weekend. While mulling, remember the recent Ninth Circuit win in Bain. In Bain, Judge Tashima booted a deficient plea that was missing facts supporting an essential element -- a fact pattern that now resonates with hundreds of federal gun cases after Rehaif. See Bain blog entry here.

  Consider also James, 987 F.2d 648 (9th Cir. 1993) (reversing when gov’t failed to prove FDIC element in bank robbery trial), available here.  

Image from “Lock, Stock, and Two Smoking Barrels” from https://filmschoolrejects.com/guy-ritchie-is-returning-to-his-comfort-zone/

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

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Case o' The Week: Doe, a Discovery Dear - US v. John Doe, Affirmative Defenses, and Discovery

A visiting district judge on a three-judge panel rejects established Ninth precedent and shifts the burden of an affirmative defense onto the defendant.

(Albeit, with a little help from the Supremes . . . .) United States v. John Doe, 2013 WL 363016 (9th Cir. Jan. 31, 2013), decision available here.

Players: Decision by DJ William Smith, joined by Judges Fernandez and Berzon. Hard-fought case (and important discovery win) by ED Cal AFPD Carolyn Wiggin.

Facts: “John Doe,” a resident of Mexico, reached out to the FBI and tried to cooperate about drug cartels, to get his family to the States. Id. at *1. Meetings with an agent took place, though the agent disclaimed authorizing Doe to begin work. Id. at *2.

At the same time, a Fresno police detective investigated a case that – through Doe – netted twelve pounds of meth and five kg of cocaine. Id. at *2. When arrested, Doe immediately told the Fresno detective that he was working for the FBI. Id. The agent confirmed Doe was being “developed” as an informant but was not currently working for the FBI. Id.

Doe was charged federally. At trial he sought a “public authority” instruction that required the government to prove, beyond a reasonable doubt, that Doe did not believe he was acting as an informant. Id. at *3. Relying on the Supreme Court’s decision in Dixon v. United States, 548 U.S. 1 (2006), the district court denied the instruction. Doe was convicted. Id. at *3.

Issue(s): In Dixon, the Supreme Court held that “Congress intended the [defendant] to bear the burden of proving the defense of duress by a preponderance of the evidence.” Id. at *7 (citation omitted) (emphasis added). “The question of whether Dixon applied to affirmative defenses other than duress is a matter of first impression in the Ninth Circuit.” Id. at *7.  

Held: “[L]ike Dixon's duress defense, Doe's common-law affirmative defense of public authority must be proven by a preponderance of the evidence . . . .The district court was therefore correct in applying Dixon to Doe's public authority defense and requiring Doe, and not the government, to bear the burden of proof.” Id. at *8 (internal quotations and citations omitted).

Of Note: Doe does not stand for a “per se rule that the public authority defense must always be proven by the defendant by a preponderance of the evidence.” Id. at *9. The Ninth emphasizes that the question is statute- and case-specific. 

Here, the drug statutes at issue had a “knowingly” mens rea element that the public authority defense could not negate. The outcome might well be different for a specific intent crime. (Though this might be small solace – precious few federal crimes still have specific intent mens rea requirements, and how would public authority work in, for example, a federal assault case that requires specific intent? Maybe “attempt” crimes, with their specific intent mens rea, still give some hope for a Doe distinction).

How to Use: Something’s fishy with this agent. Phone records reveal that Doe called him on the eve of this big drug transaction, and Doe testified that he was working on the sale to help the FBI, yet the agent “didn’t remember” the phone conversation at trial. Before trial, Doe pushed for discovery of all information provided by Doe to the FBI, and all records of communications between Doe and the agent. Id. at *3. The district court denied the request as overbroad. Id. In a terrific discovery decision, the Ninth flatly reverses this ruling. Id. at *12. The Court explains that the discovery requests weren’t overbroad, counters that Doe couldn’t be expected to be more specific than he was in his request, and emphasizes (a la Stever) that evidence is relevant if it has “any tendency to make the existence” of a material fact more or less probable.” Id. at *13. Though not the primary holding, Doe’s discovery discussion is a hidden jewel worthy of heavy citation in discovery litigation.

                                               

For Further Reading: “Prosecutorial practices have contributed to disparities in federal sentencing.” So says the Sentencing Commission in its new Booker report. For a useful summary of the sure-to-be controversial tome, see Prof. Berman’s interesting post here.

Image of “Meet John Doe” movie poster from http://upload.wikimedia.org/wikipedia/commons/thumb/3/38/Poster_-_Meet_John_Doe_01.jpg/220px-Poster_-_Meet_John_Doe_01.jpg

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

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