Case o' The Week: Undone by a "moment of mental clarity" - Alvarez-Ulloa and Insanity Defenses

 “Still crazy after all these years,” is not enough.

 “Still crazy for all these years?” asks the Ninth, instead.

United States v. Alvarez-Ulloa, 2015 WL 1784183 (9th Cir. Apr. 21, 2015), decision available here.

Players: Decision by Judge Tashima, joined by Judges Paez and D.J. Block. Hard-fought appeal by AFPD Keith Hilzendeger, D. Az.  

Facts: Jesus Alvarez-Ulloa was a Mexican citizen and boxer. Id. at *1. Found in the U.S. after being removed, he was charged under 8 USC § 1326. Id. At trial, the defense presented evidence that Alvarez-Ulloa suffered from chronic traumatic encephalopathy, which – according to a defense expert – could have rendered him legally insane. Id. at *3. The court instructed the jury with the standard insanity instruction (“the defendant was unable to appreciate the nature and quality or the wrongfulness of his acts.”) Id. 

   After several hours of deliberation, the jury sent a note asking, “if the defendant had any moments of mental clarity during [the entire time he was here illegally] . . . does that negate the defense of insanity?” Id. The court referred back to the original instruction – and still no unanimous verdict. 

  The court then gave the following supplemental instruction: “The insanity defense would be negated if, after entering the United States, the Defendant ceased to be insane for a long enough time that he reasonably could have left the United States, and he then knowingly remained in the United States for that time.” Id. at *4. The jury returned a guilty verdict 37 minutes later. Id.

Issue(s): “Ulloa . . . contends that the district court’s supplemental instruction impermissibly coerced the jury’s verdict in violation of the Sixth Amendment.” Id. at *7.

Held: “To succeed in his defense, Ulloa . . . needed to prove that he was legally insane for virtually the entire duration of his illegal stay, such that he could not have reasonably left the United States. We therefore conclude that the district court’s supplemental instruction was substantively correct.” Id. at *7.

Of Note: Judge Tashima starts with the substantive holding above – that the supplemental instruction was correct. That holding appears to be decision of first impression: for the continuing offense of being "found in" the United States, the defendant must be insane for the entire duration of the crime. For illegal reentry – where the crime continues during that entire length of the time in the U.S. – that temporal requirement is a substantial obstacle to the insanity defense. Illegal reentry is probably the longest federal “continuing offense” crime – but it ain’t the only one. Escape from federal custody, and failure to appear, are both dust-gathering continuing crimes. See United States v. Gray, 876 F.2d. 1411, 1419 (9th Cir. 1989). Alvarez-Ulloa merits some thought, when contemplating an insanity offense for a continuing offense that can span over months (or years).

How to Use: The defense also characterized the court’s supplemental insanity instruction as unduly coercive. Id. at *8. The Ninth thought not:” “The supplemental instruction was brief, direct, and does not appear to have been directed at any particular juror. The district court did not err in giving the supplemental instruction.” Id.  Important to note, however, that Judge Tashima emphasizes the instruction allowed conviction if the mental defect relented – the instruction took no position on whether the defect had relented. Id. at *8. It is a fine read, but one that makes a difference for supplemental (“dynamite” or Allen-type) charges: verboten for the district court to “attempt to recast the evidence in a light more favorable to the prosecution.” Id. at *8.

                                               

For Further Reading: The long, expensive, and tiresome saga of the Bonds prosecution has (hopefully) come to a close. The en banc court’s brief opinion, and the much longer concurrences, can be found here. 

  What exactly is the full scope of 18 USC § 1503? “[H]ow many San Francisco lawyers [does the government plan] to throw in jail?” Id. at 2. (J. Fletcher, concurring). All superb questions, that must wait for another day and another case (and, one hopes, another district). 

  Congratulations to Dennis Riordan and Ted Sampsell Jones for their masterful appellate advocacy and a big hometown win.

Image of Paul Simon album cover from http://upload.wikimedia.org/wikipedia/en/archive/8/81/20150204033847!PaulSimonStillCrazyAfterAllTheseYearsCover.jpg

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

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Case o' The Week: Novocaine OK, Cocaine Not So Much - Mancuso, Continuing Offenses, and Drug Distribution

“Mancuso was a dentist who distributed a lot more than free

toothbrushes to his friends and acquaintances in Billings, Montana.”

Great first line in a good new case on federal drug distribution. United States v. Mancuso, 2010 WL 1811276 (9th Cir. May 1, 2013), decision available here.

Players: Decision by Judge Bea, joined by Judge Clifton and DJ Mahan.

Facts: Mancuso was a dentist in Billings, Montana. Id. at *1. He was charged in one count (Count II) with distributing over 500 grams of cocaine, beginning in 2002 through 2009. Id. He was also charged with using his home and office as places maintained to distribute cocaine. Id. “Friends” and suppliers testified at trial about Mancuso buying and sharing cocaine over the seven years, in his home, office, and at bars and ski resorts Id. at *2. “I’ll buy and you fly,” was Mancuso’s motto: he would bankroll the cocaine and share it with those who purchased it for him. Id. at *2. Mancuso was convicted after trial, after having made an unsuccessful duplicity challenge to the distribution charges in Count II.

Issue(s): “Mancuso’s duplicity claim with respect to Count II, which charged him with a single continuing offense of distributing cocaine between . . .  2002 and . . .  2009 is much stronger. Unlike possession of controlled substances with intent to distribute, it is unclear whether actual distribution may be charged as a continuing offense. This circuit has never addressed directly whether distribution is a continuing offense, although other circuits have held that it is not.” Id. at *7.

Held: “We agree with the reasoning of the Second Circuit: separate acts of distribution of controlled substances are distinct offenses under 21 U.S.C. §b841(a), as opposed to a continuing crime, and must therefore be charged in separate counts. The government argues that charging all of the acts of distribution in a single count was permissible because these acts ‘could be characterized as part of a single continuing scheme.’ We disagree. Mancuso’s various acts of distribution to random friends and acquaintances, unassociated with each other in any venture or pursuit, over the course of several years and in various locations are not sufficiently related to justify charging him with one count alleging a continuing distribution offense, as opposed with distinct counts for each act of distribution. For these reasons, we vacate Mancuso’s conviction on Count II on the grounds that it was duplicitous.” Id. at *8.

Of Note: There’s a surprising number of issues in this sole-defendant case (and not all are as nicely resolved as this “continuing offense” claim). One good result is Judge Bea’s reversal for plain error when the jury wasn’t instructed that they must find a primary purpose of Mancuso’s residence and dentist office was to distribute drugs. Id. at *8-*9. It is an honest and robust reading of the requirements for a “maintaining a place to distribute cocaine” charge (21 U.S.C. § 856(a)(1)). Worth a close read in § 856(a) cases.  

How to Use: Judge Bea’s new rule is welcome. Most obviously, it prevents the government from insulating old distribution charges from a statute of limitation challenge by lumping the offenses together as a single-count “continuing offense.” In some cases, it may also permit the defense to “throw” a hopeless distribution count at trial, focus the fight on another distribution charge, hope for a compromise verdict, and try to get under a mandatory-minimum triggering amount. Of course, the new rule doesn’t apply to conspiracy charges, or RICO, or “possession with intent to distribute,” id. at *7, but any win in the drug context is a victory worth trumpeting.   

                                               

Steven Nolder, FPD SD Ohio

For Further Reading: Former SD Ohio Fed. Public Defender Steve Nolder recently fired himself to save staff from furloughs or lay-offs. Steve was recently featured on the Daily Show, as an example of the impact of sequestration. See video here.  Last week, another Federal Defender joined the ranks of the departed. Respected Missouri Defender Ray Conrad retired years early, to lessen the financial impact of sequestration on his staff. See article here. 

   Meanwhile, no federal prosecutor in the country will be furloughed. See article here. And Justice is spending $165 million to purchase a new federal prison (so more federal inmates can be incarcerated). Id. 

Image of cocaine toothache drops from http://www.npbdentist.com/blog/post/and-you-think-you-hate-going-to-the-dentist-now.html

Image of Steve Nolder from http://www.youtube.com/watch?v=dMQQgLtnWOQ

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

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