Order o' The Week: Jeremy Daniels and Changed Pretrial Release Analysis, Santa Rita Jail

  “[T]he COVID-19 pandemic and the reported infections at Santa Rita

Jail changes the [pretrial release] calculus.”

   United States v. Jeremy Daniels, CR 19-00709 LHK (NC), (N.D. Cal. Apr. 9, 2020) (Ord., Dkt. 24) at 2, available here.

Players: Important opinion by the Hon. Mag. Judge Nathanael Cousins, N.D. Cal. Admirable release fight by N.D. Cal. AFPD Dejan Gantar, standing on the shoulders of Rosen, Bien, Galvan & Grunfeld’s righteous Babu case (with a particular nod to Rosen / CJA Counsel Jeff Bornstein).

The Hon. Magistrate Judge Cousins

Facts: In 2018, civil plaintiffs filed for relief against Santa Rita Jail. See Babu et al v. Ahern et al, 5:18-cv-07677 NC. The gist of Babu are complaints regarding mental-health treatment of inmates at Santa Rita Jail. All of the Babu parties consented to the Orjurisdiction of MJ Cousins, and the case has been in a civil slog for over two years.

   Two years later, Jeremy Daniels was charged with being a felon in possession of a firearm. See Daniels, CR 19-00709, Dkt. #1. On Christmas Eve, 2019, the USAO brought Daniels into court and invoked the automatic initial detentionfor 922(g) cases. Id. at Dkt. #2. 
  Roughly a week later, Magistrate Judge Cousins presided over a formal detention hearing, found Daniels a danger to the community, and ordered him detained. Id. at Dkt. #6. 
  As is true for over 95% of NorCal’s federal inmates (450 or so), Mr. Daniels was detained in Santa Rita Jail in Dublin,California.
  Then the world turned upside down.

  In February 2020 (or earlier), the COVID-19 pandemic roared into the Bay Area. By March 16, the NorCal District Court adopted G.O. 72, suspending physical court appearances. See GO 72 here.  

  Meanwhile, a Santa Rita Jail nurse tested positive, then two inmates, then eleven, then thirteen: as of April 12, 2020, there are fifteen detainees and two staff / contractor COVID-19 cases.  See Santa Rita Jail COVID-19 Website, available here.

  As COVID-19 was ripping through the jail, in his role as the Babu jurist Magistrate Judge Cousins presided over weekly, public Santa Rita Jail status hearings (attended by many dozen members of the defense bar). The civil Babu litigation has produced, among other things, the invaluable SRJ COVID-19 web page. See Santa Rita Jail COVID-19 page here.  

  Turning back to United States v. Daniels -- on April 6 AFPD Gantar moved to reopen the detention hearing on behalf of his client. Id. at Dkt. 19. After the defense and the government exchanged briefs, MJ Cousins presided over a contested (telephonic) detention hearing.

Issue(s): Does the danger presented by COVID-19 at Santa Rita Jail impact the pretrial release analysis?

Held: “Although the Court previously found that Daniels constituted a danger to the community . . ., the COVID-19 pandemic and the reported infections at Santa Rita Jail changes the calculus. Daniels now has serious, potentially life-threatening incentives to obey the conditions of his release. Not only will Daniels be incentivized to comply with the conditions of his release to temporarily remain out of jail, Daniels is further incentivized to remain in place and avoid social contact lest he contracts COVID-19. These changed conditions mitigate Daniels’ risk of danger. For these reasons, the Court ORDERS Daniels temporarily released . . . pursuant to 18 U.S.C. § 3142(i).” Daniels Ord. at 2:11-19 (emphases added); see order here.

Of Note: The Daniels Order provides a comprehensive analysis of the dangers presented by COVID-19 in Santa Rita Jail. Two particular aspects of the Daniels order bear particular emphasis. 

  First, Magistrate Judge Cousins is a former AUSA, and is known in NorCal as a measured and deliberate jurist. (Not for nothing did Santa Rita Jail consent to Judge Cousin's jurisdiction in Babu). 

  Second, MJ Cousins knows more about Santa Rita Jail than any other jurist alive, after presiding over the Babu civil litgation for over two years.

  Ergo, if Magistrate Judge Cousins is scared about Santa Rita Jail, we should all be scared.

  Read Daniels, then move to revisit that initial detention order of your federal client: the “pretrial release calculus” has radically changed, because of COVID-19 in Santa Rita Jail.   

How to Use: Successful COVID-19 release motions note the law, but their focus is really on the unique health risks faced by the specific client. In Daniels’, AFPD Gantar successfully argued that his client’s health history made COVID-19 particularly dangerous. Ord. at 2:11-14. 

  Make your client's COVID-19 co-morbidity health factors front and center in your motion to reconsider the MJ's initial detention order. See CDC List of Factors here. 

                                               

For Further Reading: Santa Rita Jail is on track to become as deeply infected with COVID-19 as Cook County Jail. 

Sign from Cook County Jail Detainees

  Easter in the Windy City has over 500 detainees and staff testing positive, and three detainee deaths. See Cook County web page here; see also article here.

   The urgent question for the Northern District of California is this: despite Alameda County’s best efforts, what precisely is Santa Rita Jail doing differently than Cook County Jail, that will permit NorCal to avoid Chicago’s grim fate?

Image of Santa Rita Jail from https://www.mercurynews.com/2020/03/18/east-bay-jail-looks-to-reduce-jail-population-by-keeping-only-violent-criminals/ .

Inage of the Honorable Magistrate Judge Nathanael Cousins from https://www.law.com/therecorder/almID/1202719524838/Uber-Unlikely-to-Dodge-Discrimination-Suit/   

Image of window signs from Cook County Jail detainees from https://wgntv.com/news/coronavirus/help-us-cook-county-inmates-post-signs-in-windows-as-covid-19-cases-mount/

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

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Case o' The Week: Welcome Clarity on Vagueness - Dimaya and Extension of Johnson to the Immigration (Civil) Context

Our Johnson Messiah: Due Process Dimaya.

  Dimaya v. Lynch, 2015 WL 6123546 (9th Cir. Oct. 19, 2015), decision available here.

Players:  Decision by Judge Reinhardt, joined by Judge Wardlaw. Dissent by Judge Callahan. Big win for Prof. Andrew Knapp, Southwestern Law School, with amicus help from Sejal Zota of Nat’ Immigration Project of Nat’ Lawyers Guild, for amici Immigrant Legal Resource Center, Immigrant Defense Project.

Facts: Dimaya was admitted to the US as an LPR. Id. He was twice convicted

Hon. Judge Stephen Reinhardt

of Cal. Penal Code Sec. 459, first degree burglary. Id. 

Under the Immigration and Nationality Act (“INA”), a conviction for an “agg felony” makes a petitioner like Dimaya subject to removal. Id. An Immigration Judge (“IJ”) held that Cal burgs are “crimes of violence,” and thus agg felonies, under the INA’s cross-reference to 18 USC § 16(b). Id. The IJ found Dimaya removable and ineligible for relief. Id. 

That decision was upheld by the Board of Immigration Appeals.

Issue(s): “Petitioner James Garcia Dimaya seeks review of the Board of Immigration Appeals' (BIA) determination that a conviction for burglary under California Penal Code Section 459 is categorically a ‘crime of violence’ as defined by 8 U.S.C. § 1101(a) (43)(F), a determination which rendered petitioner removable for having been convicted of an aggravated felony. During the pendency of petitioner's appeal, the United States Supreme Court decided Johnson . . . 135 S.Ct. 2551 . . . (2015), which held that the Armed Career Criminal Act's (‘ACCA’) so-called residual clause’ definition of a “violent felony” is unconstitutionally vague. In this case, we consider whether language similar to ACCA’s residual clause that is incorporated into § 1101(a)(43)(F)’s definition of a crime of violence is also void for vagueness.” Id. at *1.”

Held: “We hold that it suffers from the same indeterminacy as ACCA's residual clause and, accordingly, grant the petition for review.” Id.

Of Note: The most obvious impact of Dimaya is immigration – but this quickly bleeds into “crimigation.” 

Head’s up: crimigation is our job. 

After Padilla, criminal defense counsel have an affirmative obligation to accurately advise their clients on immigration consequences. See generally Rodriguez-Vega blog entry here. After Johnson and Dimaya, are you sure that case is still an agg felony, as you advise your criminal client? 

Read Dimaya, read Rodriguez-Vega, get spooked, then hit the Nat’l Immigrant Justice Center. See CJA Immigration Help Link here.  (Or try to hire immigration counsel– hiring an immigration attorney now on the CJA dime is much cheaper than paying for CJA habeas counsel later).  

How to Use: Dimaya will be the Ninth’s most important decision of the year. 

Here’s the rationale for that bold claim. If Johnson’s Due Process “vagueness” holding applies in a mere civil context (like the INA), id. at *2, the Supreme’s decision surely must apply to all criminal (albeit non-statutory) provisions. Johnson is our new hammer, and with Dimaya the whole world looks like a nail. USSG § 4B1.2(b) (CareerOffender); § 2K2.1 (felon in possession); § 2L1.2 (illegal reentry); USSG §7B1.1(1)(1) (Supervised Release Violations)– all have vulnerable “crime of violence” definitions, and all are now up for grabs.

Throw in due process challenges to statutes like 18 USC § 3142(f)(1)(A) (Bail Reform Act), the Hobbes Act, Section 924(c) offenses, and ACCA, and much welcome mischief awaits.

And don’t forget the thoughtful Dimaya analysis by Judge Reinhardt, specifically equating the ACCA “crime of violence” provision with the Section 16(b) “crime of violence” definition for the due process analysis, id. at *3 - *6 (analysis that cries out for logical extension to other “crime of violence” definitions).

Dimaya is the foundation upon which much good law will soon be built: a Very Big Case.

Prof. Andrew Knapp, Southwestern School of Law

                                               

For Further Reading: Dimaya was held in immigration detention, without bond, for five years. It was only after the Ninth appointed Prof. Knapp as pro bono counsel, and a “dedicated group of idealistic Southwestern law students took over [Dimaya’s] representation, was [Dimaya] finally able to obtain his release on bond.” 

For an article describing the moving human story behind this case, see here.  

Image of the Honorable Judge Stephen Reinhardt from http://manythingsconsidered.com/?p=6088

Image of Professor Andrew Knapp from https://media.licdn.com/mpr/mpr/shrinknp_400_400/p/4/000/15f/35f/1640659.jpg

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

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Case o' The Week: Ninth Revs Up ICE-Breaker - Bail Reform Act not Trumped by Imigration Detainers

 

Hon. Judges Kozinski and Schroeder

If the United States Attorney’s Office – Article II of the federal government – is unable to control ICE, who can?

  The Ninth Circuit Court of Appeals.

United States v. Santos-Flores, 2015 WL 4480561(9th Cir. July 6, 2013) (Ord.), decision available here.

Players: Order from motions panel of Judges Schroeder, Canby and Kozinski.

Facts: Santos-Flores, a native and citizen of Mexico, was charged with illegal reentry. Id. at *1. When arrested at the border, he presented false IDs and falsely claimed to be a U.S. citizen. Id. He was detained by the magistrate judge and “appealed.” Id. (Ed. Note: Acknowledged that taking up the Mag. Judge decision to the district court is not technically an “appeal,” see 18 USC Sec. 3145(b), but is term used in this Order.) The district court found that if Santos-Flores was released, he would be unlikely to appear at trial because he would be detained and removed by ICE. Id.

Issue(s): Is the existence of an ICE detainer, or the possibility that ICE will issue a detainer and remove an alien, a categorical basis for denial of release under the Bail Reform Act?

Held: “We hold that the district court erred in ordering pretrial detention based on the likelihood that, if released pending trial, Santos-Flores would be placed in immigration detention and removed from the United States, pending his appearance for trial.” Id. at *1.

“If the government, by placing Santos–Flores in immigration detention or removing him, jeopardizes the district court's ability to try him, then the district court may craft an appropriate remedy . . . . The court may not, however, substitute a categorical denial of bail for the individualized evaluation required by the Bail Reform Act.” Id. at *3.

Of Note: Is Mr. Santos-Flores a free man, pending his illegal reentry trial? Sadly, no: the Court upheld the district court on other grounds. Mr. Santos’ false I.D.s, false claim to U.S. citizenship, previous failure to appear, violation of supervised release, multiple unlawful entries, and “severity of the potential punishment and strength of evidence against him” made him a “voluntary flight risk.” Id. at *3. Bad facts in this case – but the essential point is that this is an individualized assessment, not a flat ICE-detainer bar. For other alien defendants – and with a different individualized analysis -- the government won’t be able to meet its burden and will be unable to hide behind an ICE hold to seek detention in federal court.

How to Use: The Honorable District Judge Simon (with admirable advocacy from D. Or. AFPD Christopher Schatz) lead this bail trend with the groundbreaking Trujillo-Alvarez decision in 2012. See order here.  

   Notably, Trujillo-Alvarez is cited with approval by the panel in the Santos-Flores order. Id. at *3. The Panel in Flores-Sanchez affirms a simple truth that we’ve long argued: if the government doesn’t want our client deported when released on bail, the government can forego reinstatement and removal. Id. at *2. And if the federal government (Article II) can’t manage to control its own federal agency (ICE), the district court can then “craft an appropriate remedy.” Id.

                                               

For Further Reading: How often does the Ninth wade in and reverse a detention order? About every two weeks, of late. See United States v. Howard, No. 15-10259 (9th Cir. July 15, 2015) (Ord.), available here. (Note - a big win for NorCal’s own Dan Barton). In Howard, the Ninth reversed a ND Cal judge’s detention order when there were inadequate findings of a crime, or a violation, while on pretrial release. Id. at 1. Both orders came from the same motions panel: Judges Schroeder, Canby, and Kozinski. Id. 

Like Santos-Flores, the Howard order is worth a close read – and particularly Judge Kozinski’s concurrence in the Howard decision. Judge Kozinski questions why the government has unfettered access to witnesses before trial, but the defendant cannot. Id. at *6. “Why isn’t [a defendant] entitled – just as well as the government – to test the witness’s memory and let him know the facts as he [the defendant] remembers them?” Id. (Kozinski, J., concurring). More welcome common sense from the author of “Criminal Law 2.0.”

Image of the Honorable Judges Kozinski and Schroeder from http://media1.s-nbcnews.com/j/newscms/2014_30/576491/140721-alex-kozinski-1857_58256556b1f9fca82852dfed014153e0.nbcnews-ux-2880-1000.jpg

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

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