Case o' The Week: Assault Challenge Worth a Shot - Gobert, Assault, and Johnson

   Is "Assault with a Deadly Weapon" a "crime of violence?"

   Distressingly, yes. 

United States v. Gobert, 2019 WL 6316678 (9th Cir. Nov. 26, 2019), decision available here.

The Hon. Judge Carlos Bea

Players: Decision by Judge Bea, joined by Judges Farris and Christen. Hard-fought appeal by AFPD David Ness, Fed. Defenders of Montana.

Facts: Gobert was driving on a reservation, drinking and using meth with friends. Id. A verbal interaction with another group of men escalated; Gobert shot at their truck with an AR15. Id.

  Among other things, Gobert was charged with 18 U.S.C. § 113(a)(3), assault with a dangerous weapon. Id. In a separate count, he was charged with 18 U.S.C. § 924(c), with the Section 113(a)(3) charge as the basis. Id.

  He plead to the § 924(c) charge, other counts were dismissed, and he was sentenced to five years. Id.

  Later, after Johnson v. United States, 559 U.S. 133 (2010), he filed Section 2255 motion (habeas), attacking the conviction by arguing that the Section 113(a)(3) charge was not a qualifying “crime of violence.” Id.

Issue(s): “The sole question presented by this appeal is whether the offense of assault with a dangerous weapon described in 18 U.S.C. § 113(a)(3) is a crime of violence under 18 U.S.C. § 924(c)(3)(A).” Id. at *1.

  “The Supreme Court has held that to qualify as a “crime of violence” under the elements clause, the offense must have as an element the use, attempted use, or threatened use of “violent [physical] force—that is, force capable of causing physical pain or injury to another person.” Johnson . . . ; Davis, 139 S. Ct. at 2325–26 (applying Johnson to § 924(c)). The question thus is whether the offense defined in the assault with a dangerous weapon statute meets that standard. Under the categorical approach used to make that determination, see Mathis v. United States, 136 S. Ct. 2243, 2248 . . . (2016), the more specific question is whether the least serious form of the offense meets the Johnson standard, see Moncrieffe v. Holder, 569 U.S. 184, 190–91 . . . (2013). If it does, assault with a dangerous weapon qualifies categorically as a crime of violence.”

Held: “We hold that it is.” Id. “There is simply no room to find assault with a dangerous weapon under § 113(a)(3) anything but a crime of violence under § 924(c)(3)(A)’s elements clause following Juvenile Female and Calvillo-Palacios’s binding precedent. The least violent form of each offense is the threat to use violent physical force through the use of a dangerous weapon that reasonably caused a victim to fear immediate bodily injury, which under Juvenile Female and Calvillo-Palacios necessarily entails at least the ‘threatened use of violent physical force’ to qualify the offenses as crimes of violence under § 924(c)(3)(A)’s elements clause. See Calvillo-Palacios, 860 F.3d at 1290; Juvenile Female, 566 F.3d at 948.” Id. at *3.

Of Note: The defense theory in Gobert was that “using a display of force with a dangerous weapon that reasonably causes a victim to fear immediate bodily injury does not necessarily require the use or threatened use of violent force against another as required under Johnson.” Id. at *2.

  Judge Bea rejects that challenge, concluding that Ninth holdings on other “threat” statutes necessarily meant that Section 113(a)(3) required the “threatened use of violent physical force.” Id. at *3. Disappointing, but, as discussed below, a new opportunity?

How to Use: Take a hard look at the § 113(a)(3) jury instructions. See Ninth Cir. Model Jury Instruction 8.7, available here. Curiously, the requirement that the defendant “threatened the use of violent physical force” is not expressly in the model instruction for this offense. 

   Think about these newly-minted, Johnson-required elements when mulling jury instructions, and Rule 29 motions, for this assault offense.

                                           

For Further Reading: Can a crime with a mens rea of “recklessness” quality as an A.C.C.A. “crime of violence?” 

  The Supreme Court will let us know. It recently granted cert. on Walker. See summary here.   

Image of Judge Bea from https://law.stanford.edu/stanford-lawyer/articles/judge-carlos-t-bea-a-measured-view-of-the-law/.

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

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Case o' The Week: "Demons Made Me Do It" - Read, Mentally-Ill Clients and Insanity Defenses

Still crazy, after all these years.

United States v. Read, 2019 U.S. App. LEXIS 7652 (9th Cir. Mar. 18, 2019), decision available here.

Players: Decision by Judge Hawkins, joined by Judges M. Smith and Hurwitz. Reversal for Mr. Read earned by former CD Cal AFPD, now CJA Attorney, Davina Chen.

Facts: While an inmate at FCI-Phoenix, Read stabbed his cellie thirteen times. Id. at *2. When later detained, Read said he had no memory of the attack. Id. at *3.

  He was charged with federal assault.

  A shrink diagnosed Read with schizophrenia and severe cannabis use disorder. Id. Read was found incompetent and sent to the BOP for restoration. Id.

  The BOP shrink noted that Read experienced the sensation of having his stomach cut out with a knife, by virtue of a voodoo doll being used against him. Id. at *4. The BOP doctor also confirmed the schizophrenia and cannabis-use diagnoses. Id. Nonetheless, the BOP psychologist found Read competent to stand trial. Id.

  Defense counsel then hired a neuropsych, who opined that Read was unable to form the criminal intent for the assault. Id. Defense counsel noticed an insanity defense, prompting another gov’t psych eval. Id.

  Read returned from a remote evaluation. After a Faretta hearing he successfully moved to proceed pro se (with the defense attorney as standby counsel). Id. Read flatly rejected an insanity defense, and insisted instead with going forward with a defense theory of “demonic possession.” Id. at *6-*7.

  The court then reappointed standby counsel as Read’s counsel, who “ably, but unsuccessfully, . . . present[ed] an insanity defense at trial.” Id. at *8.

Issue(s): “We address a question of first impression: whether a criminal defendant has the Sixth Amendment right to demand that counsel not present an insanity defense.” Id. at *1.

   “Read claims the district court violated his Sixth Amendment right to present a defense of his own choosing by terminating self-representation and permitting counsel to make an insanity defense.” Id. at *12. 

  “[W]e today face a question of first impression in this circuit.” Id. at *13.

Held: “We hold that McCoy v. Louisiana, 138 S. Ct. 1500 (2018), requires under the facts of this case that the demand be honored. We . . . reverse and remand for a new trial.” Id. at *1.

  “[A] district court commits reversible error by permitting defense counsel to present a defense of insanity over a competent defendant's clear rejection of that defense.” Id. at *12.

Of Note: Read is peppered with the “bizarre.” The D.J. characterized Read’s “demonic possession” defense as “bizarre.” Id. at *8. Judge Hawkins characterizes McCoy’s defense theory in the controlling SCOTUS McCoy case as “every bit as bizarre as Read’s.” Id. at *14. The Supreme Court in McCoy, followed by the Ninth Circuit in Read, place the highest value on the “autonomy” rights of (patently mentally-ill) defendants who want to pursue these “bizarre” defenses and reject insanity defenses over the advice of counsel.

  A decade ago, Judge Reinhardt predicted precisely the – well, bizarre – real world outcomes created by this focus on the "autonomy" of mentally ill defendants in his compelling Farhad concurrence. See 190 F.3d 1097, 1107 (9th Cir. 1999) (Reinhard, J. concurring)  ("The right to self representation must be balanced, like the right to waive conflict free counsel in Wheat, or the right to a public trial in Estes, against the Due Process Clause's fundamental, guarantee that trials will be reliable, just, and fair. Surely if the right to a fair trial is compelling enough to justify the Court's previous limitations on Sixth Amendment rights, it is compelling enough to limit, in appropriate cases, the Sixth Amendment right at issue here. As with most other individual rights, there are competing and countervailing interests, both personal and social. Nothing inherent in the implied right of self representation justifies exalting that right over all others in the constitutional constellation, or requires the courts to permit Farhad and others with similar limitations or incapacities to turn criminal trials into travesties. Rather, courts can develop rules for determining when the exercise of the right to self representation would be consistent with the mandate of the Fifth Amendment, and when it would not. In the latter case, the right to self-representation would give way."); See generally blog entry here.

   However, while wrestling with Read down in the district court trenches, note an interesting hint from the Ninth. Judge Hawkins explains that, at this time, the Ninth refuses to limit the right to refuse an insanity defense in cases where the defendant is actually mentally ill. Id. at *20 & n.5. Judge Hawkins throws in an intriguing “but see” to a case imposing that limit – maybe an invitation for a future argument?   

How to Use: Can our truly nutty clients go pro se?

  Probably not.

  In a very helpful holding, Judge Hawkins gives much guidance on what a D.J. should consider when making this tough call. Id. at *17-*18.

  Read Read for a valuable discussion on Faretta / Edwards / Ferguson pro se issues – Read is a now lead pro se case.   

                                               

For Further Reading: In 1998, Theodore “the Unabomer” Kaczynski pleaded guilty and avoided the death penalty. See NYT article here. 

  In a later dissent from the denial of a habeas petition, Judge Reinhardt described the tensions between the mentally-ill Kaczynski and his very able defense counsel over the question of an insanity defense at trial. United States v. Kaczynski, 239 F.3d 1108, 1119 (9th Cir. 2001) (Reinhardt, J., dissenting).

  Looking back at Kaczynski through the prisms of McCoy and Read, would the Unabomber have gone to trial without an insanity defense (and thus been awaiting execution) today?

Image of voodoo doll from https://pokerground.com/en/do-you-believe-in-poker-superstitions/

Image of Ted Kaczynski from https://news.yahoo.com/letters-from-a-serial-killer--inside-the-unabomber-archive-234543736.html

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

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Case o' The Week: Ninth Reverses Convictions for Three Grizzly Deaths - Wallen and Good Faith Self-Defense

 The AUSA and MJ won’t like our subjective “good faith” self-defense theory after reversal and remand.

  (But they’ll have to grin and “bear” it).

United States v. Wallen, 2017 WL 4799292(9th Cir. Oct. 25, 2017), decision available here.

Players: Decision by Judge Fisher, joined by Judges O’Scannlain and Friedland. Admirable win by Assistant Defender John Rhodes, Federal Defenders of Montana.

Facts: Wallen lived in Montana. There are bears. Specifically, three grizzlies killed his chickens, ran near his kids, scared his wife, and returned repeatedly despite being chased off. Id. at *2. When the bears returned to the home for the third time in one day, Wallen killed them. Id.

  He gave different narratives of what happened to agents, and was charged with three misdemeanor counts of violating the Endangered Species Act. Id.

  At the bench trial, Wallen asserted he shot the bears in self-defense. Id. at *2. Id. The magistrate judge, as the factfinder, found Wallen’s claim of self-defense was objectively unreasonable and found him guilty. Id. at *3.

 Wallen appealed.

Issue(s): “Here, the parties dispute whether the ‘good faith belief’ standard an objectively reasonable belief, as the government argues, or requires only a subjective belief in the need to protect oneself or others, as Wallen maintains. The magistrate judge and district court applied an objective test.” Id. at *5.

Held: “We conclude that was error.” Id. “We now hold that subjective good faith belief suffices to establish self-defense under this statute.” Id. 

  “We . . . construe § 1540(b)(3) in accordance with the general principle that a good faith belief defense ordinarily depends on a defendant’s subject state of mind rather than the objective reasonableness of the defendant’s belief . . . .” Id. at *8.

Of Note: The Endangered Species Act provides a defense when the defendant kills an endangered animal, but had a “good faith belief he was acting to protect himself or herself” or others from bodily harm. Id. at *5 (quoting 16 U.S.C. § 1540(b)(3)). Judge Fisher concludes that the words “good faith” requires an analysis of the defendant’s subjective belief – not the (more difficult) “objective” reasonable person standard. Id. at *5-*6.

  “But wait,” you may ask, “doesn’t the vanilla federal assault statute require that more-difficult objective, ‘reasonable’ belief of danger to argue self-defense?”

  It does indeed.

  Judge Fisher observes that 18U.SC. § 113 (“Assaults within maritime and territorial jurisdiction”) only permits a self-defense theory when a defendant reasonably believes the force was necessary. Id. at *6, quoting United States v. Keiser, 57 F.3d 847, 851 (9th Cir. 1994). Shoot a grizzly and your sincere belief in the need for self-defense is enough. Assault a human, and a “reasonable,” objective belief in the need for self-defense is necessary.

   Weird? Blame Congress, explains this admirably honest opinion. Id. at *6. The two statutes are written differently: unlike the Endangered Species Act, the Section 113 assault statute has no “good faith” language. The Ninth is just calling ‘em like Congress writes ‘em.

How to Use: Fourth Amendment fans may get a little nervous with all this “subjective good faith” language that peppers Wallen. In a world where Leon and Jacobson give cops a “good faith” harbor, does Wallen mean that a cops who honestly – but unreasonably – believe a search was righteous escapes suppressesion?

  It does not. 

  Judge Fisher carefully distinguishes those other good faith cases, that arise in the context of the Fourth Amendment and § 1983 claims. A cop’s assertion of good faith for a search, and the government’s assertion of good faith in the context of the Stored Communications Act, still must be objectively reasonable. Id. at *7.

                                               

For Further Reading: Last summer, Senator Jeff Flake (R-Arizona) introduced a bill to split the Ninth– and held a hearing on the issue. See article here.  

 This week, Senator Flake famously explained he would not be seeking re-election – and added a bon mot or two with his announcement. See article here. 

  Impossible to predict the Split’s momentum, but safe to predict it won’t come be from a bill sponsored by Senator Flake.

Image from the Big Lebowski from https://i.pinimg.com/originals/98/cf/76/98cf7624015401cbfba1eb733640b428.jpg

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

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Case o' The Week: Something Good Comes of Jersey - Garcia-Jimenez and Federal Generic Aggravated Assault

“In Jersey anything’s legal as long as you don’t get caught.”

  Tweeter and the Monkey Man, Traveling Wilburys (Bob Dylan).

United States v. Garcia-Jimenez, 2015 WL 7292604 (9th Cir. Nov. 19, 2015), decision available here.

Players: Decision by Judge Berzon, joined by Judges W. Fletcher and Bea. Admirable win for former CD Cal AFPD Davina Chen.

Facts: Garcia-Jimenez got drunk and stabbed a fellow card player. Id. at *1. He pled guilty to New Jersey agg assault. Id. The statute allowed conviction under three prongs: attempting to cause bodily injury, purposely or knowingly causing injury, or recklessly causing such injury. Id. State proceedings did not make clear which of the three prongs Garcia-Jimenez was convicted of violating. Id. He served his time, was deported, reentered, caught, and convicted of illegal reentry. Id. The PSR recommended a +16 OL increase, tagging the N.J. agg assault as a “crime of violence.” Id. The district court agreed, imposed a 46-month term, and added that if the Guideline calc was wrong, it would still find the sentence reasonable. Id. at *2-*3.

Issue(s): “Garcia–Jimenez argues that his prior conviction is not a crime of violence because: (1) contrary to the New Jersey statute, the generic federal offense of aggravated assault requires a mens rea greater than recklessness under circumstances manifesting extreme indifference to the value of human life (‘extreme indifference recklessness’); and (2) New Jersey's definition of ‘attempt,’ an element alternatively incorporated into the statute of conviction, is broader than the federal generic definition of ‘attempt.’” Id. at *1.

Held: “We hold that, for both reasons, the provision of the New Jersey statute under which Garcia–Jimenez was convicted does not qualify as federal generic aggravated assault and therefore is not a ‘crime of violence.’ Because the district court's Guidelines error was not harmless, we vacate the sentence and remand to the district court for resentencing.” Id.

Of Note: The big holding is the Court’s conclusion that a mens rea of extreme indifference recklessness is not sufficient to meet the federal generic definition of aggravated assault. Id. at *4. Judge Berzon surveys state authority, and finds that a substantial majority of jurisdictions require more than this mens rea. Id. at *5. She distinguishes the Ninth’s previous decision in Esparza-Herrera, which did not undertake the required mens rea analysis. Id. at *4; see also fn. 4 (distinguishing Gomez-Hernandez). 

Note that seventeen states do allow agg assault convictions based on this lower mens rea (see fn. 7); keep an eye out for those priors and don’t let them become +16 offense level increases.

Equally interesting is the Court’s protection of generic federal “attempt.” Id. at *6. Because New Jersey law allows an attempt conviction without satisfying the “probable desistance” test, it is broader than the generic definition – again, the prior does not qualify as a federal “aggravated assault.” Id. at *6-*7. Two very useful additions to our “generic definition” arsenal.

How to Use: Yet again the Ninth rejects the sentencing “belt and suspenders” gambit. Here, the court warned it would impose the same 46 six months if it was wrong (despite the fact that the correct guidelines are 10–16 months). Id. at *7. The Ninth ain’t buying it: “the district court’s assurance that it would have imposed a sentence three times the proper Guidelines range if its Guidelines calculation turned out to be wrong cannot, without more, cure the prejudice resulting from its incorrect Guidelines calculation.” Id. at *8. Use Garcia-Jimenez when a court tries to whitewash an incorrect guideline calc with threats of an identical § 3553(a) term.   

                                               

For Further Reading: After Johnson, the Sentencing Commission has also been wrestling with the “crime of violence” question. A proposed amendment has been posted for comment - see the pdf here. 

The comment period ended on Nov. 25: anticipate more news on the amendment soon. 

Image of New Jersey button from https://img1.etsystatic.com/000/0/5533093/il_570xN.143052497.jpg

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

Case o' The Week: The Ninth Gets Petty -- Stanfill El, Petty Offenses, and Jury Trials

  All over the country, interns are beginning their summer of service at federal courts, Defender offices, and various federal agencies.

  An opportune time to revisit Federal Intern Rule #1: keep the fistfights off of federal jurisdiction, please. United States v. Stanfill El, 2013 WL 18000046 (9th Cir. Apr. 30, 2013), decision available here.

Players: Decision by Judge Clifton, joined by Judges Tashima and Bea. Hard-fought appeal by D. Or. AFPD Thomas J. Hester.

Facts: Lawrence Stanfill El and Kyle Carmin were interns who worked next to each other at the Department of Veterans Affairs. Id. at *1. They fought, and Stanfill El punched Carmin several times. Id. Carmin was hospitalized. Id. Stanfill El was charged with federal assault under 18 U.S.C. § 113(a)(4). Id. This offense carries a six month maximum custodial term. Id. at *2. Stanfill El pleaded not guilty and demanded a jury trial: that demand was denied and he was tried before a judge. Id. at *1. Stanfill was found guilty, and the only “sentence” imposed was a restitution order for $3,468 .03 in medical bills. Id.

Issue(s): “The Sixth Amendment to the United States Constitution provides the right to a jury trial in all criminal prosecutions. But there is a category of petty crimes or offenses which is not subject to the Sixth Amendment jury trial provision. To determine whether an offense is petty, courts look to the maximum penalty that could result from a conviction. Courts presume that an offense is petty when it carries a maximum term of imprisonment of six months or less . . . Stanfill El argues that the potential for an order of restitution in a substantial amount is enough to overcome that presumption.” Id. at *2 (internal quotations and citations omitted).

Held: “We have already rejected that argument. In Ballek, we held that an order requiring the defendant to pay monetary restitution did not qualify as additional punishment that would trigger the right to a jury trial under the Sixth Amendment, no matter how large the sum involved . . . . Stanfill El contends that Ballek is distinguishable because it involved a child support debt that had been previously adjudicated by a state court. Stanfill El's legal duty to pay restitution, he argues, hinged entirely on the fact-finder's determination of his guilt rather than a state-court adjudication. But the result we reached in Ballek did not depend upon the previous state-court judgment . . . . Accordingly, Stanfill El cannot rely on it to distinguish his case. Ballek controls, and the district court was correct when it relied on our holding in that case to reject Stanfill El’s Sixth Amendment argument.” Id. at *2 (internal quotations and citations omitted).

Of Note: AFPD Hester raises an interesting argument in Stanfill El. If the victim Carmin had just for a common law assault, Stanfill El would have been entitled to a jury trial under the Seventh Amendment. Id. at *3. Why doesn’t the Sixth Amendment provide for a jury trial when the same amount of money (in the form of restitution) is at stake? Judge Clifton undertakes some Founding Fathers analysis to explain why the Seventh doesn’t help here. Id. at *4 “Criminal restitution is not some newfangled effort to get around the Seventh Amendment,” id. (quotation and citation omitted) )(though it probably feels that way to Stanfill El).

How to Use: Federal Defender offices who handle petty offense dockets are familiar with the delicate “jury trial” dance fought in Stanfill El. On the one hand, it iss the rare case where the defense wants to give up a jury. On the other, the lower punishments required to knock out the jury trial right are attractive. In Stanfill El, Judge Clifton describes the analysis required to determine whether a petty offense defendant has the right to a trial by jury. Id. at *1. The question involves more than just jail time: a large fine or a long period of probation can trigger the right as well. Id.

                                               

Hon. Richard Kopf

For Further Reading: How should judges free-up Federal Public Defender resources, in light of the furloughs required by sequestration? Dismiss all illegal reentry charges. So opines District Judge Richard Kopf in a remarkable blog entry, reported here. 

  If you’ve been feeling battered and bruised in these Sixth Amendment / Sequestration battles, read Judge Kopf’s frank comments and take heart: we’re not alone in this fight.

Image of the Honorable Richard Kopf from: http://upload.wikimedia.org/wikipedia/en/c/c9/Richard_G._Kopf_District_Judge.jpg

Movie poster from “The Internship” from http://www.beyondhollywood.com/uploads/2013/04/The-Internship-2013-Movie-Poster.jpg

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

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