Case o' The Week: Short rifles, short decision, and shorted on mens rea - Woodberry and Mens Rea for Section 924(c) offenses

Prepare to pucker, on a sour Woodberry. 

United States v. Woodberry, 2021 WL 506091 (9th Cir. Feb. 11, 2021), decision available here.

Players: Decision by Judge Gould, joined by Judge Friedland and WD MO DJ Bough.  

Facts: Woodberry and Johnson, who were armed, robbed a marijuana dispensary. Id. at *1. Police later recovered a short-barreled rifle. Id. at *2.

  The men were charged with, among other things, a Section 924(c)(1) (B)(i) count for using a short-barreled rifle during a crime of violence. Id. (This Section 924(c) count triggered a ten-year mand-mind. Id. at *4).

  Over defense objection, the jury was instructed that it could convict if the gun’s length was under 16 inches (with no requirement that the defendants knew the rifle was short. Id.

  The men were convicted, and appealed.

Issue(s): “Defendants . . . challenge the district court's jury instruction regarding the short-barreled rifle provision in § 924(c)(1) (B)(i). They argue that because the short-barreled rifle provision contains a mens rea requirement, the district court should have instructed the jury to convict only if Defendants knew that the rifle barrel was less than sixteen inches long.” Id. at *4 (footnote omitted) (emphasis in original).

Held: Holding One: “Applying . . . Alleyne, we hold that the short-barrel provision in § 924(c)(1)(B)(i) is an essential element that must be proven to a jury beyond a reasonable doubt.” Id. (footnote omitted) (emphasis added).

Holding Two: “We see no reason to apply the mens rea presumption here, in part because the statute in question does not penalize ‘entirely innocent’ conduct.” Id. at *6 (citation omitted). “At its core, this case calls for no more than a straightforward application of Dean. We hold that § 924(c)(1) (B)(i) requires no showing of mens rea as to the rifle barrel’s length to sustain a conviction.” Id. at *7.

Of Note: Woodberry crams a number of disappointing holdings into a short opinion. The decision’s lead issue is whether robbing a marijuana dispensary is, effectively, a per se impact on interstate commerce that triggers commerce clause jurisdiction for Hobbes Act cases. See id. at *3. 

Extending the Supreme Court’s 2016 Taylor decision, the Ninth holds “(1) that the market for marijuana, including its intrastate aspects, is commerce over which the United States has jurisdiction, and (2) that the commerce element of a Hobbs Act robbery could be established if the robbery could affect commerce over which the United States has jurisdiction.” Id. at *4 (quotations and citations omitted).

A frustrating decision to mull when defending Hobbes Act cases.

How to Use: In this appeal the government kept referring to the short-barreled provision in Section 924(c) as a “sentencing ‘enhancement,’” rather than an element. Id. at *4.

The government was wrong.

Judge Gould takes this opportunity to clarify that, after Alleyne, this factual requirement is an essential element that must be proved to a jury beyond a reasonable doubt. See id.

Sadly, after Woodberry this is an element stripped of any meaningful mens rea requirement. Nonetheless, for future Section 924(c) cases, these are now clearly facts that must be alleged in the indictment, and that the jury must decide beyond a reasonable doubt.                                                   

For Further Reading: President Biden campaigned on criminal justice reform. In a compelling new OpEd, two Federal Defenders describe the many unilateral measures that the Administration should immediately take to deliver on these campaign promises. See Lisa Freeland and David Patton¸ The Biden Administration Can Act on Criminal Justice Act Reform Now, available here.

  Here in NorCal, U.S. Attorney David Anderson (appointed by President Trump), has announced that he will step down by the end of the month. See article here. 

  As main Justice aggressively unwinds Trump policies (and implements the new Biden / Harris priorities), it will be interesting to see how quickly these big changes are felt here in NorCal and the Ninth.  

 

 

 

Image of “Woodberry” from https://uksignshop.co.uk/woodberry

 

 

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

 

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Case o' The Week: Pic, Sixteen => Mand-Min, Fifteen: Laursen and the Child Porn Production statute.

 A picture is worth . . . 5,475 days.

United States v. Laursen, 2017 WL 460660 (9th Cir. Jan. 30, 2017), decision available here.

The Hon. Judge Johnnie B. Rawlinson

 Players: Decision by Judge Rawlinson, joined by Judge Callahan. Concurrence by Judge Hawkins.

Facts: Laursen, 45, had a consensual sexual relationship with a sixteen-year-old girl. Id. at *1. Laursen told police the girl was being prostituted (but did not reveal his relationship). Id. Police examination of the girl’s laptop revealed sexually explicit images of the girl and Laursen. Id. 
  Later, Laursen’s sister gave the police a camera that she found, that contained sexually explicate images of the girl. Id. 
  Laursen was charged with and convicted of production and possession of child porn. Id. at *2. The court rejected a jurisdictional challenge, where Laursen argued that the girl was “not a child” because under Washington law she was a young woman of legal consensual age. Id. at *4. 
  Laursen was sentenced to the mand-min fifteen years. Id.

Issue(s): “In this appeal we address whether taking consensual nude ‘selfies’ involving a forty-five-year-old man and a sixteen-year-old girl is sufficient to support a conviction for production and possession of child pornography.” Id. at *1 (footnote omitted).

Held: “We . . . specifically reject the argument made by . . . Laursen that the legality of his sexual relationship with a sixteen-year-old under Washington state law precluded prosecution under federal law.” Id. “[I]n the state of Washington, Laursen’s sexual relationship with [the girl] was legal but the production of pornography stemming from that relationship was not.” Id. at *6.

Of Note: How many seventeen-year olds routinely take consensual and sexual cell phone shots similar to those in Laursen – pics that here resulted in a fifteen year mand-min sentence? That sobering question is asked by Judge Hawkins in his persuasive concurrence.

  Judge Hawkins would adopt a narrower construction of the key term, “uses” in the child production statute. Id. at *8. He would hold that the term “uses,” as the statute references between the photographer and the minor, requires that the defendant must have “exerted some sort of improper influence on the minor for the purpose of producing the visual depiction of sexual conduct.” Id.

  Applying that narrowing definition here, Judge Hawkins would find that Laursen met that requirement: the big age difference between the couple, Laursen’s gift of drugs to the girl, moving her from motel room to motel room, and the girl’s history of abusive relationships were sufficient evidence of improper influence. Id. at *9.

  Judge Hawkins has the better argument: the very expansive definition of the word “uses” in the majority’s opinion means the only limitation on the high mand-min “production” statute is unfettered AUSA discretion.

  Romeo is lucky there were no iPhones in Verona. Amorous teens, beware.

How to Use: This brief opinion quickly mows through a bevy of constitutional and evidentiary challenges. Id. at *4-*8. One of the most concerning is the rejection to the overbreadth challenge. Id. at *6.

  It was undisputed that Laursen could legally have a full consensual sexual relationship with the sixteen-year old girl. Id. at *6. (“[I]ll-advised, but perfectly legal,” as Judge Hawkins observes.). Id. at *8. However, the instant Laursen encouraged the girl to take a consensual nude picture, he fell afoul of the federal “production” statute and bought himself a fifteen-year mandatory minimum sentence. Id. Notably, there is no evidence that Laursen distributed, transferred, or showed these private pictures to anyone outside of the relationship. Id at *8 (Hawkins, J., concurring).

  The result of Laursen is that consensual intercourse with a sixteen-year old is legal in Washington -- yet encouraging that same sixteen-year old to take a private nude picture converts the relationship into a fifteen-year mand-min federal crime.

  A troubling case that merits a close read for anyone defending child porn production charges.

                                               

For Further Reading: In 2016, the Obama administration started to shut down private federal prisons as prison populations shrank, and after a number of investigations revealed horrific conditions in the for-profit institutions. See article here.

  A.G. Sessions is reversing course. For an interesting -- and disturbing -- piece on the ramifications of the new A.G.’s policy shift, see Private Prisons: Here’s Why Sessions’ Memo Matters, available here.

Image of the Honorable Judge Johnnie B. Rawlinson from http://lasvegasnba.org/wp-content/uploads/2014/08/Judge-Rawlinson-square-image-300x300.jpg

Image of Romeo and Juliet from http://scalar.usc.edu/works/romeo-and-juliet-act-2-scene-2-through-the-years/media/RomeoandJuliet4.jpg

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

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Case o' The Week: Jurisdiction challenge bombs in Ninth - Garcia and post-Morrison Commerce Clause j/x

 Does a little apartment building in sleepy Fairfield, California sufficiently affect interstate commerce sufficiently to trigger federal jurisdiction?

  Yep – by per se rule.

United States v. Garcia, 2014 WL 4637169 (9th Cir. Sept. 18, 2014), decision available here.

Players: Decision by Judge Rawlinson, joined by Judges Tallman and D.J. Garbis.  

Facts: Jantina Reed testified at trial that defendant Daniel Garcia acted unusually when she, her boyfriend, and two children lived in Garcia’s house – he ran around naked and stood outside her door, breathing heavily. Id. She and her family moved away, to an apartment building in Fairfield CA. Id. at *1, *4. Reed testified that Garcia had, during one fight, thrown items on her car and threatened, “tick, tick, boom, I’m going to blow this up to pieces.” Id. 

  One night, Reed heard an explosion and discovered that her borrowed SUV was on fire. Id. at *2. Cops found the remains of a pipe bomb under the SUV and damage to the apartment; a later search revealed a similar pipe bomb in Garcia’s residence. Id. at *2-*3. The SUV was built in Wisconsin; the building that suffered damage advertised rentals online and had tenants from out-of-state. 

  Garcia’s Rule 29 motion was denied, the jury returned a guilty verdict, and he was sentenced to thirty-five years in prison. Id. at *5.

Daniel Garcia

Issue(s): “Garcia contends that the government failed to present sufficient evidence to satisfy the Commerce Clause jurisdictional requirement of 18 USC § 844(i), because the government failed to demonstrate that Garcia’s criminal conduct affected interstate commerce.” Id. at *1. “Relying on [Lopez] and [Morrison], Garcia asserts that damage to the apartment complex did not satisfy the Commerce Clause jurisdictional element of 18 USC § 844(i) because there was insufficient evidence that any damage to the apartment building substantially affected interstate commerce.” Id. at *5.

Held: “We disagree, and conclude that the Commerce Clause jurisdictional element for a conviction pursuant to 18 USC §  844(i) was satisfied as discussed in Russell v. United States, 471 U.S. 858 . . . (1985) and United States v. Gomez, 87 F.3d 1093 (9th Cir. 1996).” Id. at *5.

Of Note: This jurisdictional challenge to the apartment building being in “interstate commerce” was squarely foreclosed by the Supreme Court’s decision in Russell and the Ninth’s decision in Gomez. Id. at *5. In the present case, Garcia’s pitch was that the Supreme’s 2013 decision in Morrison undermined that authority: under new jurisdiction law, there was insufficient evidence of impact on interstate commerce to support the conviction. Id. at *6. 

  The Ninth doesn’t bite. 

  Unlike the statute in Morrison, the Section 844(i) statute has an internal interstate jurisdictional requirement. Id. at *7. The Ninth also rejects Garcia’s argument that the “aggregate effect” approach no longer satisfies the Commerce Clause requirement. Relying on a Second Circuit decision, Judge Rawlinson concludes that Russell’s “part of an economic chain” approach survives until expressly rejected by the Supreme Court (something not done in Morrison). Id. at *7. 

  The punch line is a per se rule that damage to a rental apartment building satisfies the jurisdictional provisions of 18 USC § 844(i). Id. at *8.

How to Use: What about the SUV? In an intriguing footnote, Judge Rawlinson muses that “there is a serious question as to whether the government presented sufficient evidence that the Chevrolet Tahoe SUV was used in interstate commerce.” Id. at *8 & n. 4. (Note that the apartment building was just dinged by some shrapnel from the explosion, id. at *2 – had the SUV been parked a bit further away when it was blown up, federal jurisdiction may not have existed in this case.) In a Section 844(i) case involving only a vehicle, Garcia leaves open the hope of another Morrison jurisdictional challenge.

Hon. District Judge Lawrence Karlton

                                               

For Further Reading: Garcia got the mandatory minimum of 35 years. The 31-year old prosecutor wanted more time for the 31-year old Garcia– prompting District Judge Karlton to ask if the AUSA was serious. “I want to tell you,” Judge Karlton chided the AUSA, “that the most important asset the U.S. Attorney’s Office has with the court is its belief in good sense.” For a fascinating account of this sentencing hearing, see “Fairfield pipe bomber receives 35-year federal prison sentence,” available here.

Image of the Fairfield sign from http://www.californiasecuritypro.com/Portals/137046/images/ADT%20Fairfield%20CA%20Home%20Security%20Company.jpg

Image of Daniel Garcia from http://www.dailyrepublic.com/featured-stories/suspected-fairfield-bomb-wielder-pleads-not-guilty-in-solano-court/

Image of the Honorable District Judge Karlton from http://www.caed.uscourts.gov/caednew/index.cfm/judges/all-judges/5007/

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

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