Case o' The Week: C.O.V. (without the "V") - Dominguez and Attempted Hobbs Act Robbery as Crime of Violence

  Dissent's cordial contempt, for attempt, attempt.

United States v. Monico Dominguez, 2020 WL 1684084 (9th Cir. Apr. 7, 2020), decision available here.

Players: Decision by Judge Silverman, joined by visiting S.D. District Judge Anello.

  Compelling dissent by Judge Nguyen.

  Hard-fought appeal by ND Cal CJA attorney Gene Vorobyov.  

Facts: Dominguez and a co-conspirator robbed a “Garda” armored car warehouse and made off with nearly a million dollars. Id. at *1. They were not caught.

  About a year later, an informant tipped the FBI off to Dominguez’s plans to pull off another armored car robbery. Id. at *2. The FBI set up a fake crime scene, to make it difficult for Dominguez to drive near the warehouse.

  Armed with a pistol, Dominguez drove to the warehouse to commit the robbery – but called the snitch and nixed the caper after getting within a block, and encountering the FBI “crime scene.” Id.

  He was arrested the next day, and charged with – among other things – attempted Hobbs Act robbery of the warehouse, and a Section 924(c) charge based on that attempt. Id.

Issue(s): Is attempted Hobbs Act robbery a “crime of violence” that will support a Section 924(c) charge?

Held: “We hold that attempted Hobbs Act robbery is a crime of violence under 18 U.S.C. § 924(c)(3)(A).” Id. at *8.

Of Note: With a polite tone and brutal logic, Judge Nguyen’s dissent tears apart the reasoning of the majority’s “attempt” holding. Id. at *9 (Nguyen, J., dissenting). She starts with the obvious: an attempted Hobbs Act robbery can be committed without any actual use, attempted, use, or threatened use of physical force. Id. A defendant can go down for attempted Hobbs Act robbery even if a “substantial step” towards that crime does not involve “physical force” acts necessary for a “crime of violence” designation. Id. at *10. Judge Nguyen then explains how the majority’s analysis “impermissibly bootstraps a defendant’s intent to commit a violent crime into categorizing all attempts of crimes of violence as violent crimes themselves.” Id. at *11.

  Judge Nguyen’s analysis is spot on: this decision should go en banc. Efforts underway for a PFREB.

How to Use: The majority conspicuously avoids deciding whether “[c]onspiracy to [c]omit Hobbs Act robbery is also a crime of violence under 18 U.S.C. § 924(c)(1)(A).” Id. at *8. (Judge Nguyen insinuates the majority’s dodge allowed it to avoid an irreconcilable conflict: the government conceded that conspiracy to commit Hobbes Act robbery is not a crime of violence. She rightly asks, “If conspiracy and attempt have the same intent requirement, how, under the majority’s approach, could the result be different? The majority doesn’t say.” Id. at *11.)

  In any event, seize the government’s concession in Dominguez: conspiracy to commit Hobbs Act robbery is not a crime of violence supporting a Section 924(c) charge.

                                               

For Further Reading: Over two thousand inmates have tested positive for COVID-19 in Ohio prisons. See article here. Over 1,800 inmates have tested positive in one Ohio prison alone. Id. Why has California generally, and Santa Rita Jail specifically, not seen Ohio’s numbers of positive tests? Because Ohio is “testing everyone -- including those who are not showing symptoms – [and is] getting positive test results on individuals who otherwise would have never been tested because they were asymptomatic.” Id. (emphasis added).

   Santa Rita Jail, by marked contrast, is not testing its entire inmate population: its report of positive cases is therefore radically under-inclusive. See Santa Rita Jail COVID-19 website here. (reporting 33 positive inmate and staff cases); see also “Asymptomatic coronavirus cases at Boston homeless shelter raise red flags, available here. 

  For graphs showing the alarming rates of (underreported) positive tests in Santa Rita, see ND Cal APFD’s Candis Mitchell’s analysis here. 

Image of Garda armored car from https://abcnews.go.com/US/fbi-men-shootout-rob-armored-car-broad-daylight/story?id=64822253  

Image of Santa Rita Jail wire fence from https://www.berkeleyside.com/2020/04/01/in-covid-19-move-alameda-county-cut-its-jail-population-a-new-state-policy-could-undermine-that

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

Case o' The Week: Attempted Robbery of Absent Victims? "Substantial" Enough for Ninth - Soto-Barraza and Substantial Steps for Attempted Robberies

Which victim triggers the lowest level of proof, to sustain a federal conviction for attempted robbery?

  A.  A federally-insured bank;

  B.  An armored car, or;

  C.  An international drug smuggler?

United States v. Soto-Barraza, 2020 WL 253560 (9th Cir. Jan. 17, 2020), decision available here.

Agent Terry Memorial, in Mesquite Seep Arizona

Players: Decision by Judge Ikuta, joined by Judge Hurwitz and DJ McShane.

Facts: Border Patrol agents were searching for armed gangs, who preyed on drug smugglers bringing pot across the border. Id. at *1. The agents detected armed suspects (but no victim drug smugglers were around). A gun battle ensued: one agent was killed. Id. 

  Recovered AK-47-style guns, ammo, and backpacks were associated by DNA and prints to Souto-Barraza and Sanchez-Meza. Id. 

  The men were charged with the murder of the agent, Hobbs Act conspiracy to interfere with commerce by robbery, attempted interference with commerce by robbery, assault on the Border Patrol Officers, and carrying and discharging a firearm in furtherance of a crime of violence. Id. at *2.

   Souto-Barraza and Sanchez-Meza were convicted at a trial, and sentenced to life. Id. at *3.

Issue(s): “The defendants argue that there was insufficient evidence to establish they had taken a substantial step [for attempted robbery] because there was no evidence that marijuana smugglers were actually present in their immediate vicinity or that a robbery was imminent . . .  [D]efendants rely primarily on cases considering whether defendants had taken a substantial step toward robbing a store or bank.” Id. at *8.

Held: “But here the defendants were targeting individual victims, not a building. In these circumstances, courts place greater weight on other factors, such as whether the defendants are lying in wait for the intended victim, . . . or have begun traveling to the location where the victims may be found. . . . Because the central inquiry is whether the evidence is sufficient to demonstrate that the defendants will carry through with the offense unless interrupted, there is no requirement that the actions constituting the attempt have a particular geographic proximity to the object of the substantive offense. . . . . Nor need a criminal act be imminent. . . . . Because a reasonable jury could have concluded that Soto- Barraza and Sanchez-Meza did all they could to prepare to rob marijuana smugglers they would encounter and would have followed through with the crime had the [Border Patrol] agents not intervened, the district court correctly denied defendants’ motion for judgment of acquittal.” Id. (internal citations and quotations omitted)

Of Note: In this opinion Judge Ikuta also rejects an interesting extradition argument about “dual criminality.” Id. at *4. 

  Much of the decision, however, discusses and distinguishes prior authority on attempted robbery. Id. at *6. Judge Ikuta focuses on the “substantial step” analysis, and distances this case from attempted robbery cases where a building was targeted. Id. at *7. The Ninth appears to create two lines of analysis: one for attempted robberies of banks (or armored cars), and a second for attempted robbery of individuals. Id. at *8. 

  (Why those two fact patterns produce different standards isn’t entirely clear). 

  Yet another quirk in the quirky law of “attempt."

How to Use: The defense did earn one reversal in this case. The government conceded that conspiracy to commit Hobbs Act robbery is not a crime of violence. Id. at 8 & n.8. The Ninth thus reversed the convictions for “carrying and discharging a firearm in furtherance of a crime of violence, 18 U.S.C. § 924(c)(1)(A)(i), (iii).” Id. at 2 & n.2.

  Judge Ikuta curiously buried this reversal in a mem dispo referenced in a footnote. Id. at *8 & n.8. Nonetheless, snag the government’s concession and the Ninth’s holding for future use.

                                               

For Further Reading: What was the source of at least two of the assault weapons recovered from the scene of this Border Patrol Agent’s murder? 

  The ATF! 

  In “Operation Fast and Furious,” ATF Agents in Phoenix let suspects walk away with weapons – 2,000 guns, in all. Two of these ATF “walk-away” guns were carried by the crew in the gun battle in this this case. For a remarkable account of this tragic operation, see article here. 

Image of memorial to Border Patrol Agent Brian Terry from https://www.kpbs.org/news/2013/sep/16/new-details-emerge-in-hunt-for-brian-terrys/

Image of "Fast and Furious" book from https://www.amazon.com/Operation-Fast-Furious-Gunwalking-Trafficking-ebook/dp/B0056NU0DS

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: Ninth Rejects Gov't's "Attempt" Attempt - Kuok and 18 USC Section 2

This holding ain't easy, but it's good, and well-worth the mulling it takes to understand:

It is a crime to cause someone to attempt to unlawfully export restricted military gear -- but it is not a crime to attempt to cause someone to do so.  United States v. Kuok, __ F.3d __, 2012 WL 118571 (9th Cir. Jan. 17, 2012), decision available here.


Players: Decision by Judge Bybee (above right), big win by San Diego Ass’t Federal Defender Todd Burns.

Facts: Kuok, a citizen of Macau, attempted to cause undercover ICE agents to unlawfully export restricted military gear. Id. at *1.They didn’t, of course: instead they arrested Kuok as he hit the Atlanta airport on his way to Panama to complete the deal. Id. at *2. He was charged in San Diego (more on that below) with attempting to export restricted military gear without the required license: a violation of the “Armed Export Control Act” or “AECA.” Id. at *1. That statute does not have an “attempt” provision. Id. at *7. Kuok was convicted at trial. 

Issue(s): “Kuok challenges his conviction on the grounds that the AECA and its implementing regulations do not create liability for attempting to cause another person to violate the AECA.” Id. at *7. “In response, the government points to 18 USC § 2(b), which states: ‘Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.’” Id. at *7.
                       
Held: “[T]he government’s case at trial did not establish that Kuok caused an attempt to export: it established that he attempted to cause an export. That is, Kuok attempted to cause the undercover ICE agent to export the [restricted material] without a license.” Id. at *7 (emphases in original). “The government’s argument that attempt should rationally be read into § 2(b) fails in light of the rule against reading an attempt into a criminal statute that does not explicitly include it.” Id. “We hold that attempting to cause an export of defense articles without a license is not a violation of U.S. law, and vacate Kuok’s conviction on count three.” Id. at *9.

Of Note: While this is a nice little win on an obscure and rarely-used statute, it is an important victory on a much bigger principle. The government’s argument in Kuok was dangerous: it would have created criminal liability if you attempted to cause a federal agent to do something. Id. at *7. The theory would have done so by radically expanding an already expansive statute: 18 USC § 2, the general federal “principal / aider & abettor” provision. Put differently, the government wanted to make it a crime for an aider and abettor to attempt to cause an offense – even if that offense was impossible (like getting federal agents to export restricted gear) and even if that offense was never completed. Judge Bybee doesn’t buy it, and explains why in a thoughtful and extended discussion. Kuok will be an key opinion for both “principal” and “attempt” law in the circuit.

How to Use: Why San Diego? Just because the ICE agents decided to cash Kuok’s money order there. Id. at *4. This smacks of “manufactured venue” – agents cherry-picking the district by manipulating the facts of the offense. Judge Bybee doesn’t bite, and because the Court doesn’t find the venue-manufacture “extreme” in this case Kuok’s venue challenge fails. Id. Critically, however, the Court declines to“decide the issue today” of whether “manufactured venue” exists as a defense in the Circuit. Id. If your case involves venue-manipulation, take a close look at Kuok’s venue discussion, and specifically the distinction between manufacture of jurisdiction and manufacture of venue. Id.
  
For Further Reading: How could Kuok be any better? By giving us a terrific defense of the duress defense – with a reversal for failure to give duress instructions. Id. at *13. Kuok is now one of the important, post-Dixon decisions in the Ninth on the right to a duress instruction.  For a recent discussion of the federal duress defense – and its kissing cousin, “necessity,” – see Monu Bedi, Excusing Behavior: Reclassifying the Federal Common Law Defenses of Duress and Necessity Relying on the Victim’s Role, available here.


Image of the Honorable Judge Jay Bybee from http://oneutah.org/wp-content/uploads/2009/04/bybee.jpg


Steven Kalar, Senior Litigator ND Cal FPD. Website available at www.ndcalfpd.org


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