Case o' The Week: Speedy Trial? (or Wait Awhile) - Gavilanes-Ocaranza, the Sixth Amendment, and Supervised Release

Hon. Judge Susan P. Graber

The Sixth Amendment and Supervised Release: never the twain shall meet.  

  United States v. Gavilanes-Ocaranza, 772 F.3d 624 (9th Cir. Nov. 25, 2014), decision available here.

Players: Decision by Judge Graber, joined by Judge Hawkins and District Judge Sedwick

Facts: Gavilanes-Ocaranza pled guilty to attempted illegal reentry and received a three-year supervised release term after his term of imprisonment. Id. at *626. He was removed, reentered, detected, and convicted of reentry again; he received a 46-month custody term from another court. Id. at 626. Gavilanes-Ocaranza was then brought back before the original district court to face allegations that he had violated his original supervised release conditions. Id. at 627. He admitted the allegations, was revoked, and received a twelve-month custodial term for the S/R violation, consecutive to his 46 month sentence for the second illegal reentry. Id. None of the issues in the appeal were raised in the district court (hence plain error review review).

Issue(s): “We have held that the supervised release system under 18 U.S.C. § 3583, including revocation of that release and imposition of additional prison time as a result of a violation of a term of the release, does not violate a defendant’s right to trial by jury. Huerta-Pimental, 445 F.3d at 1224. Defendant contends that Alleyne v. United States … 133 S.Ct. 2151 (2013), effectively overruled Huerta-Pimental.” Id. at 628.

Held: “We disagree . . . we hold that, after Allyene, Huerta-Pimental remains good law. We reaffirm that the revocation of supervised release and the imposition of additional prison time pursuant to 18 U.S.C. § 3583 do not violate a defendant’s right to trial by jury.” Id at 628-29.

Of Note: Supervised release defense is hammered, in this brief opinion. In addition to shooting down the Apprendi pitch, the Court also takes on a Sixth Amendment Speedy Trial challenge. In this case, Gavilanes-Ocaranza was actually promptly brought before the original district court for the revocation proceedings. Id. at 628. He creatively argued, however, that the revocation was an extension of the original criminal prosecution years before – and thus the revocation hearing violated his right to a speedy trial. Id. 

  The Ninth wipes out this narrow argument in a broad holding: “To the extent that our precedent is ambiguous on that point, we eliminate that ambiguity by holding now that there is no Sixth Amendment right to a speedy ‘trial’ in supervised release revocation proceedings and that a revocation proceeding is neither its own criminal prosecution nor an extension of the original criminal prosecution that led to the imposition of supervised release.” Id.   

How to Use: Gavilanes-Ocaranza is about the Sixth Amendment and its (non-application) to supervised release. While the decision’s Speedy Trial holding isn’t terribly surprising, the general problem of delayed revocation proceedings remains real. AUSAs and Probation Officers make no effort to bring clients over from state custody to face federal S/R charges – they know that the delay will hamstring the district court imposing a supervised release term, and will increase the odds of consecutive violation sentences. 

  As Gavilanes-Ocaranza explains, there’s no Sixth Amendment right to a speedy trial on violation charges, but Judge Graber acknowledges that there is a Fifth Amendment due process right to a “reasonably prompt hearing.” Id. at 628 (citing United States v. Santana, 526 F.3d 1257, 1259 (9th Cir. 2008)). When trying to get your client back before a DJ for violation proceedings, think Fifth, not Sixth, as the hook.

                                               

For Further Reading: We’re used to the shoddy evidence procedures with local cops, but the Feds have their act together, right? 

  Not so much. 

An internal inquiry has revealed that the FBI has mishandled and lost evidence, with errors discovered “in nearly half of the pieces of evidence it reviewed.” See F.B.I. Evidence is Often Mishandled, an Internal Inquiry Finds, NYT available here.

Image of the Honorable Judge Susan P. Graber from http://pioneercourthouse.org/gallery-judges-portraits.html

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

Case o' The Week: Viva the Apprendi Revolution! (Thirteen Years later . . . ) - Cortes and "Sentencing" Entrapment at Trial

 

Hon. Judge Barry Silverman

  In a welcome and important opinion, Judge Silverman explains the new term for “sentencing entrapment” after Apprendi.

   “Entrapment.”

   United States v. Cortes, 2013 WL 5539622 (9th Cir. Oct. 9, 2013), decision available here.

Players: Decision by Judge Silverman, joined by Judges Thomas and Fisher.

Facts: An undercover agent convinced Cortes to rob a (fake) stash house with “100 kilograms” of cocaine. Id. at *1. The agent bemoaned the (fictitious) cartel’s mistreatment of him, and explained that his drug boss had been sleeping with his wife. Id. at *2. Similarly cuckolded, and therefore sympathetic, Cortes allegedly coordinated a group of men to rob the stash house. Id. at *2. He was arrested, convicted, and sentenced to 20 years. Id. at *3. The district court denied Cortes’ request to instruct the jury on sentencing entrapment. Id. at *7.

Issue(s): “Cortes . . . argues that the district court erred in refusing to instruct the jury on sentencing entrapment, which is a separate affirmative defense to the quantity element of the drug charge under 21 U.S.C. § 841.” Id.

Held: “We have never held that sentencing entrapment is a jury question, but the Supreme Court’s precedent and our own make clear that it must be.” Id. at *8. “A criminal defendant is entitled to present his sentencing entrapment defense to the jury if the success of that defense would result in a lower statutory sentencing range. That is, if there is some foundation in the evidence that he would be subject to a lesser statutory minimum or maximum sentence if his sentencing entrapment defense were to succeed, the he is entitled to a jury instruction on that defense.” Id. at *9. “'Facts that increase the mandatory minimum sentence are therefore elements and must be submitted to the jury and found beyond a reasonable doubt.' Alleyne, 133 S. Ct. at 2158. Accordingly, we hold that sentencing entrapment must be tried to a jury where the defendant’s argument and the evidence raise the possibility of changing the applicable statutory maximum or minimum sentences.” Id. at *10.

Of Note: We in the defense bar have been arguing that “sentencing entrapment” should be a defense for the jury since Apprendi – and others felt similarly. (See United States v. Williams, 478 F.App’x 364, 366 (9th Cir. 2012)(Silverman, J., dissenting)). Two regrettable decisions – the Buckland en banc opinion in the Ninth, and the (now-overruled) Harris case in the Supremes – delayed what Judge Silverman now squarely holds is a righteous trial defense. Cortes is a must-read for those who defend federal drug crimes: by endorsing “sentencing entrapment” as a trial defense when mand-mins are involved, it opens up an entirely new realm of possibilities when defending these tough, high-exposure charges. Cortes is a good stash-house decision, but a seminal decision for the defense of federal drug cases.  

How to Use: Sparks from Cortes ignite two immediate and welcome changes. First, because confidential informants are so often central to the claim of sentencing entrapment, Cortes now pushes CI disclosure pretrial, to permit for adequate investigation and preparation for trial. Put differently, the Cortes sentencing entrapment defense now forces the government to deal cases on reasonable terms, or burn their snitches well before trial (while a defendant can still plead and snag two points for acceptance).  

  Cortes also now requires earlier Brady / Giglio disclosure. Dirt on the snitch is material impeachment evidence that goes to a trial defense: sentencing entrapment. Cortes instantly shifted the government’s Brady / Giglio disclosure burden far earlier, to the pretrial context. Modify discovery letters with a cite to Cortes and demands for early CI and Giglio disclosure: this brave new world of Apprendi defenses at trial presents new discovery frontiers ripe for exploration.

                                               

For Further Reading: In Cortes, Judge Silverman astutely observes that “following Apprendi, . . . ‘sentencing entrapment’ is a bit of a misnomer.” Id. at *7. Drug quantity is “an element of the offense,” “not a sentencing enhancement or factor,” so this variety of government coercion or enticement is now a straight-up entrapment theory cognizance at trial. Id. For a useful collection of authority on this defense, see the outline here.  

Image of the Honorable Judge Barry Silverman from http://www.law.asu.edu/News/CollegeofLawNews.aspx?NewsId=2482

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

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