Case o' the Week: Ninth Delivers Intent-ional Reversal -- Alhaggagi and Specific Intent for Terrorism Enhancement in Material Support cases

By simple "cause and effect," one who works with terrorists is necessarily motivated to intimidate or coerce the U.S. government -- right?

Mr. August Gugelmann and Ms. Mary McNamara

Nope: not in the Ninth. 

United States v. Alhaggagi, 2020 WL 6192982 (9th Cir. Oct. 22, 2020), decision available here.

Players: Admirable decision by Judge Milan Smith, joined by District Judge Ezra.

Dissent by Judge Hurwitz.

Huge win after epic district court and appellate battles, for ND Cal CJA Panel attorneys August Gugelmann and Mary McNamara, Swanson & McNamara LLP.  (Note that Mary is also our Northern District CJA Liaison Attorney, as well as the Ninth Circuit's CJA representative to the national Defender Services Advisory Group).

 Facts: Twenty-one-year old Alhaggagi trolled Shia and Sunni users of group chats on the internet, provoking fights between the two. Id. at *2. He bragged about plans to commit terrorist acts, and his “chat persona” made extravagant claims such as like having access to bazookas. Id. 

This chatter drew the attention of the FBI, who arranged a meeting with an undercover agent. The pair discussed bombs, but Alhaggagi got cold feet and cut off communications with the agent. Id. at *3.

  Alhaggagi then began chatting online with ISIS supporters. Id. On two occasions, Alhaggagi agreed to open social media and email accounts for these ISIS members. Id. These accounts were later used by an ISIS propaganda organization to report ISIS attacks in Iraq. Id.

   After Alhaggagi was charged he plead open to, among other counts, attempting to provide material support to a designated foreign terrorist organization, in violation of 18 U.S.C. § 2339B(a)(1). Id. at *4. The PSR put his offense level at 26, with a guideline range of 46-57 months. Id. The government argued for a “terrorism enhancement,” that skyrocketed the offense level to 38: a range of 360-564 months. Id.

  After a two-day evidentiary hearing, the court imposed the terrorism enhancement. Id. at *4.

 Issue(s): “[W]e consider whether the district court abused its discretion in applying the terrorism enhancement in sentencing Alhaggagi.” Id. at *5.

   “The [ ] question is whether Alhaggagi’s conduct satisfies the first prong: whether his attempt to provide material support to a terrorist organization by opening social media accounts was ‘calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.’” Id. at *7.

 Held: “Alhaggagi contends the district court erred in applying the terrorism enhancement because it centered its analysis on ISIS, not on Alhaggagi’s conduct or mental state. The enhancement, Alhaggagi argues, specifically requires the district court to consider the latter, whereas the offense itself implicates the former. Alhaggagi concludes that because the district court failed to determine whether he knew how the accounts he opened were to be used, it could not find that he specifically intended that the accounts be used to coerce or intimidate a government. We agree.” Id. at *7.

   “The district court did not make sufficient factual findings concerning Alhaggagi's knowledge of how the accounts he opened were to be used. Although Alhaggagi participated in a chatroom replete with posts praising ISIS, denouncing the United States, and planning ‘to kindle strife and chaos’ in the United States through Twitter, there is no evidence that Alhaggagi saw those posts, opened the accounts because of those posts, or had contact with the authors of the posts . . . .” Id. at *9.

  “We therefore conclude that clear and convincing evidence does not establish Alhaggagi opened social media accounts calculating that they would be used to retaliate against government action, and the district court erred by applying the sentencing enhancement.” Id. at *10.

 Of Note: Judge Milan Smith, nominated by President Bush, authors this brave decision reversing a terrorism enhancement. 

  By contrast, Judge Hurwitz (nominated by President Obama) authors a vigorous dissent that would uphold the district judge's imposition of the enhancement. See id. at *11.

The Honorable Judge Andrew Hurtwitz

 

 Alhaggagi again illustrates that politics can be a lousy predicator of a jurist’s particular vote in a criminal case.

How to Use: This great mens rea decision demands that the government meet a high evidentiary burden to show Alhaggagi’s intent. Id. at *6. Turn to Alhaggagi when specific intent is required in a guideline enhancement.

For Further Reading: For more background on this fascinating case, and a report on this high-profile NorCal sentencing hearing, see, California man sentenced to more than 15 years in ISIS support case, available here.

 

  

Image of counsel August Gugelmann and Mary McNamara from https://www.beaumontenterprise.com/crime/article/Oakland-man-who-pleaded-guilty-to-terror-charges-15668554.php#photo-15886933 .

Image of the Honorable Judge Andrew Hurwitz fromhttp://cronkitenewsonline.com/2012/03/arizona-supreme-court-justice-moves-closer-to-federal-judgeship/index.html 

 

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

 

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Case o' The Week: Ninth's Decision is Clear and Convincing -- Valle and Sentencing Standard of Proof

Hon. Judge Michelle Friedland

  Judge Friedland decides a continuous, ten year, debate. United States v. Valle, 2019 WL 5058604 (9th Cir. Oct. 9, 2019), decision available here.

Players: Decision by Judge Friedland, joined by Judge M. Smith and DJ Bastian. 

  Very nice victory for Deputy Federal Public Defender Brianna Mircheff, C.D. Ca. FPD.   

Facts: In ’98 and 2000, Valle was convicted of drug felonies and removed from the U.S. Id. In 2004, Valle was arrested for a DUI in California, but was not convicted or removed. Id. at *2.

  In 2017, Valle was again arrested by local police, he was charged with illegal reentry, and plead guilty. Id. The guidelines carried additional enhancements if his state drug convictions were within ten and fifteen years “of the start of his illegal reentry offense.” Id.

  Over defense objection, the PSR started the clock at the 2004 DUI arrest, despite the fact that there was no evidence about how many times Valle had departed and reentered the U.S. since that date. Id. This “start date” issue made a 30+ month difference in the guideline range, from the defense’s view of a range of 1-7 months to a PSR-urged term of over three years. Id.

  The government agreed with the PSR, and argued Valle’s previous use of California addresses and his family ties created a sufficient inference to conclude that he had continuously been in the US since 2004. Id. at *3. The district court agreed. Id. The court held as a matter of law that Valle’s continuous presence in the United States was not required [a legal error], and found that under a “preponderance of evidence” standard Valle had continuously been in the US from ‘04. Id. at *3 and *6.

  The court imposed a guideline sentence of 37 months. Id. at *3.

Issue(s): “This appeal requires us to evaluate the Government’s burden of proof in demonstrating the applicability of sentencing enhancements for an illegal reentry crime. Specifically, we consider whether the Government can establish by clear and convincing evidence a non-citizen’s continuous presence in the United States since the alleged time of reentry without submitting any direct evidence of where the non-citizen was for more than a decade.” Id. at *1.

Held: “We hold that it cannot. We give some weight to the inference that a non-citizen who had previously returned after being removed and who had family in the United States would have made efforts to stay in the country. But that inference is not enough to carry the Government’s burden here to prove the thirteen years of continuous presence in the United States necessary to support the enhancements applied to . . . Valle’s sentence. We therefore vacate and remand to the district court for resentencing.” Id.

  “[B]ecause it was the Government’s significant burden to prove that Valle was continuously present, and it produced no evidence whatsoever about where he was for over a decade, the district court clearly erred in concluding that the Government had sufficiently proven that he remained in the United States.” Id. at *8.

Of Note: Valle won for now, the Ninth pointed to lower guidelines, but so what? Won’t the government just scrape together evidence of “continuous presence,” for re-sentencing?

  Nope!

  In a great holding, Judge Friedland concludes that because the government “failed to carry its burden despite an extensive factual inquiry below, it is not entitled to “a second bite at the apple.” Id. at *8. (internal citations and quotations omitted). Valle’s new range is 1-7, he’s been in for twenty, so the mandate was ordered transmitted “without delay” for immediate resentencing. Valle “second bite” holding is an interesting arrow for our appellate quivers.

How to Use: The key to this victory is the Ninth’s holding that the government’s sentencing burden was not by a preponderance, but by the higher “clear and convincing” standard. See id. at *4 - *5. In so doing, Judge Friedland carefully distinguishes other “preponderance” decisions. Id. at *5. Her analysis is invaluable for our future “clear and convincing” efforts -- turn to Valle when hunting for a heightened sentencing standard.  

                                               

For Further Reading: One out of three federal defendants sentenced last year was convicted of an immigration offense. 

So reports the Sentencing Commission, in its 2018 Annual Report. For a quick summary of the Feds’ new focus, see  article here. 

Image of the Honorable Judge Michelle Friedland from https://www.sfgate.com/nation/article/Court-hints-at-keeping-Trump-order-on-hold-10915838.php#photo-12331414

Pie chart of federal sentencing in 2018 from 2018 Annual Report and Sourcebook of Federal Sentencing Statistics. , reproduced here: https://www.washingtonexaminer.com/washington-secrets/feds-immigration-top-us-crime-one-third-of-all-sentencings

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

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Case o' The Week: Till the Guidelines Do Us Part - Hymas and Burden of Proof at Sentencing

In a successful marriage, couples share everything.

(Except relevant conduct loss amounts). United States v. Hymas, 2014 WL 1319543 (9th Cir. Mar. 25, 2015), decision available here.

Players: Decision by Judge Clifton, joined by Judges M. Smith and Hurwitz.

Facts: Aaron and his wife Tiffany co-owned housing businesses. Id. at *1. They submitted fraudulent mortgage loan applications, and ultimately pled guilty to wire fraud. Id. Aaron was on some mortgage applications, Tiffany was on others. Id. 

   The PSR for Aaron tallied the loss at $3.6 million, and included lender loss amounts for dismissed counts. Id. That loss amount increased the guideline range by eighteen levels. Id. at *2. Aaron objected to the loss amount and the burden of proof: a three day evidentiary hearing followed. Id. The court rejected Aaron’s argument that the clear and convincing standard of proof should apply, and used the preponderance standard. Id. Using that standard, the court agreed with the PSR’s guideline calculation (though it ultimately imposed a sentence roughly half of the guideline range). Id.

Issue(s): “Aaron appeals his sentence of 24 months’ imprisonment, contending that facts found by the district court should have been subject to the clear and convincing standard of proof rather than the preponderance of the evidence standard that the district court applied, because of the disproportionate impact of those facts on the sentence that was imposed.” Id. at *1.

Held: “The sentence imposed by the district court was not entirely based on the loan that was the subject of conviction . . . . The district court also used losses from other loans to calculate Aaron’s total offense level, increasing the total offense level by an additional 8 levels. Based on the principles articulated above, the clear and convincing standard of proof should have been applied to determine the amount of the losses from the other loans.” Id. at *4. “Inclusion of the losses from the other loans ultimately resulted in an increase of 8 offense levels, from 10 (based on the loss from the Count Four loan by itself) to 18. This additional 8-level increase more than doubled the Guidelines imprisonment range. Under our precedents, we conclude that the district court should have employed a heightened clear and convincing standard of proof with regard to the losses from other loans.” Id. at *4.

Of Note: Aaron did not win on his challenge to his count of conviction. Id. at *3. Because those losses “stemmed from conduct for which Aaron was convicted,” it “alleviat[ed] the due process concerns discussed above.” Id. That’s a key point --Aaron did not plead guilty to the dismissed counts that bumped up his loss, and he did not plead guilty to conspiracy. Id. at *5. Judge Clifton distinguishes precedent that did not require “clear and convincing” evidence when defendants had a chance to fully contest conspiracy charges at trial. Id. 

  Fair to guess that if Aaron had pled guilty to conspiracy to commit wire fraud with his wife, the loss amounts for these other counts would have only required the lower preponderance standard. Beware of conspiracy, in fraud plea agreements. Admitting that apparently innocuous charge (compared to substantive wire fraud allegations) may ultimately cost you the valuable “clear and convincing” standard at sentencing.

How to Use: The government argued that the court’s decision to use the wrong standard was harmless, because the court ultimately varied down from 41 to 24 months. Id. at *5. Judge Clifton has none of it: in the Ninth, get the Guidelines right first “and use that recommendation as the ‘starting point and initial benchmark.” Id. at *6. The Court thus concludes the error wasn’t harmless, and remands the matter to district court. Id. Another useful case for the proposition that a below-Guideline sentence doesn’t immunize a district court from review: if the Guideline benchmark is wrong, even a sentence well below that benchmark can be taken up.

                                               

For Further Reading: Mandatory minimum sentences are a terrible idea. We know it, judges know it, and two Supreme Court Justices know it. Last week Justices Kennedy and Breyer told a House Appropriations Committee that “the idea of total incarceration just isn’t working.” See Wall Street Journal article here. 

Image of the split wedding cake from http://i.telegraph.co.uk/multimedia/archive/00647/news-graphics-2007-_647104a.jpg

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

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