Case o' The Week: Ten Years for a Misdemeanor - Shill and "Sexual Activity" in Section 2422(b)

  In the Seventh Circuit, enticing a minor over the internet to visit a museum and view the “Rape of Europa” is not “sexual activity” that will trigger a ten-year mandatory minimum federal sentence. United States v. Taylor, 604 F.3d 255, 257 (7th Cir. 2011) (Posner, J.)

  In the Ninth? Avoid the Titian wing. United States v. Shill, 2014 WL 259872 (9th Cir. Jan. 24, 2014), decision available here.

Players: Decision by Judge Tallman, joined by Judge Bea and DJ Murphy. Hard-fought appeal by D. Or. AFPD Lisa Hay.

Facts: Forty-five year old Shill approached a 16-year old girl, and complimented her on her appearance. Id. at *1. A Facebook friend request followed, the girl reported Shill to the police, and an FBI agent – posing as the girl – took over email communication with Shill. Id. at *1. Shill had sexually-explicit online chats with the agent and enticed the “girl” to have sex with him. Id. He arranged to meet the “girl” at a train station, and agreed to bring condoms and alcohol. Id. 

  When arrested at the station, Shill had on his person condoms, the phone used to send sexually explicit photos and messages to the “girl,” and in Shill’s car the agents found flowers, Viagra, alcohol, and additional condoms. Id. 

  Shill was charged with using the internet to entice a minor, 18 USC § 2422(b). The indictment alleged Shill had enticed a minor to commit two misdemeanor sex offenses. Id. 

   Shill moved to dismiss the indictment and raised an Eighth Amendment challenge, based on a ten-year mandatory minimum sentence triggered by misdemeanor conduct. Id. at *2. Both motions were denied. While the district court observed that it would have sentenced Shill to the guideline range of seventy months, it held it was required to impose the 120 month mand-min. Id.

Issue(s): “Shill contends that the district court should have dismissed the indictment. Specifically, Shill challenges the following language in § 2422(b): “any sexual activity for which any person can be charged with a criminal offense[.]” According to Shill, this language is ambiguous, vague, inconsistent with Congress's expressed intent, and leads to the 'absurd' result that misdemeanor conduct is punishable by a ten-year sentence under federal law. Shill argues that § 2422(b) should be construed narrowly to preclude prosecution where the attempted sexual activity is a misdemeanor as opposed to a felony.” Id. at *2.

Held: “As Shill notes, the phrase [“criminal offense”] is not defined in the federal criminal code. Nonetheless, we presume that Congress legislates in light of relevant case law and familiar legal definitions . . . Thus, Shill’s actions, while a misdemeanor in the Oregon legal system, nonetheless constitute a ‘criminal offense’ under § 2422(b). We decline to embrace Shill’s narrow interpretation of the statute, which belies the plain meaning of the term ‘criminal offense.’” Id. at *2. “We hold that § 2422(b) clearly and unambiguously criminalizes attempted sexual activity where the object of the attempt would amount to either a misdemeanor or felony under state law.” Id. at *5.

Of Note: In Taylor, the Judge Posner persuasively writes for the Seventh Circuit and flatly rejects the Ninth’s very broad reading of § 2242(b), worrying that such an expansive interpretation could trigger ten-year mand-mins for “watching a pornographic movie, or a pole dancer, or a striptease artist,” or “flirting” or “flashing.” 640 F.3d 255, 257 (7th Cir. 2011) ("Is watching . . . Aubrey Beardsley's pornographic sketches, or Titian's 'Rape of Europa,' or 'Last Tango in Paris' a 'sexual activity'?")

   The Ninth isn’t similarly worried, because the misdemeanor conduct in the statute must occur in the context of interstate commerce. Id. *3. (A limitation that apparently didn’t occur to Judge Posner, given the ease with which interstate nexus is triggered in the modern world).

   Shill creates a Circuit split and tolerates ten-year mandatory minimum exposure for misdemeanor conduct: it merits en banc review.

How to Use: Client + Minor + Internet = read Shill. A ten-year mand-min now depends on the breadth of your state’s misdemeanor code: exposure that dramatically affects the risk-benefit analysis of motions and trial.

                                               

For Further Reading: Thankfully, Romeo did not have an iPhone. Had he texted, “Be not her maid,” to Juliet, he’d be looking at ten. See play commentary here, and California misdemeanor statute here. 

Image of Titian’s “Rape of Europa” from http://upload.wikimedia.org/wikipedia/commons/4/41/Tizian_085.jpg

Image of Romeo and Juliet from https://www.nvnet.org/~price/FOV1-000594CE/FOV1-00058AEB/S04113901.0/romeo%26juliet_3_lg.gif

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

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Case o' Week: A Minor "Major" Sentencing Win - 924(c)s and Sentencing

Hon. John T. Noonan

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NOONAN, Circuit Judge, concurring and dissenting:
 

I concur in the opinion of the court except as to the sentences of over 700 years. The court says, “No one could dispute that a sentence of almost 750 years is harsh.” No one would bother to characterize such a sentence as “harsh.” It is simply incapable of execution. 

No known human being has the capacity to live 700 years. No living human being is likely to live 700 years. On its face, the sentence is impossible to execute.

The United States asks us to affirm this sentence. It asks us to affirm a sentence that cannot be carried out. I do not believe that we should participate in this utterly empty gesture.

United States v. Major, 2012 WL 1001188, *9 (9th Cir. Mar. 27, 2012) (Noonan, J., concurring and dissenting), decision available here.

  Judge Noonan (above right) doesn't note in his dissent that Major actually gives these defendants a sentencing break: thirty-six months off of their sentences. Id.  

   They'll only serve 742 years, instead of 745.  Marcus Major's release date will be moved back to March 15, 2654. See BOP Inmate Locator, Release Date, Marcus Major, here.

 

Players: Decision by Judge Wallace, joined by Judge M. Smith. 

   Judge Noonan concurs and dissents.

Facts: Over eight months, armed robbers hit a string of Fresno and Madera retail stores. Id. at *1. Marcus Major and Jordan Huff were arrested while fleeing the scene of a liquor store and charged with over thirty counts of conspiracy, § 924(c) offenses, and other federal crimes. Id. They were convicted after trial. Id. 

The “use” of a gun during a felony is a Section 924(c) offense, and sentences vary depending on how the gun was "used." A “brandishing” § 924(c) conviction carries a 7-year mand-min, a “discharge” § 924(c) carries a 10-year mand-min, and when there is a second § 924(c) conviction that carries a 25-year mand-min. Id. at *7. 

Major and Huff were convicted of “brandishing” and “discharge” § 924(c)’s. When sentencing the district court started with “discharge” (10 years) then stacked 25 years for each additional § 924(c). Id. at *7. “Thus Major and Huff received sentences three years longer than they would have had the district court deemed a brandishing count to be the first conviction.” Id. 

Both men were sentenced to over 745 years. Id. at *1.

Issue(s): “[Appellants] argue that the district court erred in using a ‘discharging’ offense, rather than a ‘brandishing’ offense as the first conviction under section 924(c), resulting in sentences three years longer than if the district court had used a ‘brandishing’ offense as the first conviction.” Id. at *1.

Held: “Applying the rule of lenity, when the district court does not have sufficient information to determine the order in which the jury made determinations of guilty during jury deliberations on multiple counts under section 924(c), it must order the convictions so that the mandatory minimum sentence is minimized. In this case, application of the rule requires the district court to deem one of the brandishing counts, rather than a discharging count, to be the first conviction.” Id. at *9.

Of Note: The bottom line? Major gets a 742 year sentence, instead of 745. The absurdity of this sentence is not lost on dissenting Judge Noonan: “The United States asks us to affirm this sentence. It asks us to affirm a sentence that cannot be carried out. I do not believe that we should participate in this utterly empty gesture.” Id. at *9 (Noonan, J., dissenting).

How to Use: Major is worth a worried read for its FRE 404(b) holding. Id. at *2. In the trial of the retail store robberies, the government was permitted to introduce evidence of earlier home invasion robberies as 404(b) evidence. Id. Judge Wallace walks through the evidentiary value of the home invasion robberies, as they related to the“identity” of the retail store robbers. Id. He ties the two sets of robberies together with the ballistics on the guns used. Id. at *3. Judge Wallace concludes that the home invasion robberies were relevant to identity, “because a jury could reasonably assume that possession of the firearms did not change during the period between each crime.” Id. at *3. The decision is not a profound change in (fact-bound) FRE 404(b) law, but it is a worrisome new addition. Beware of Major and FRE 404(b) in cases involving uncharged offenses and ballistics – a dangerous mix for the defense.

For Further Reading: Read Frye and Lafler yet? These are important new Supreme Court decisions on the Sixth Amendment duties owed to our clients during the plea negotiation process. See SCOTUS blog here.  

Add Padilla to this mix (immigration advisement), and you’ve got a trio of opinions that stiffen our clients’ rights to make informed decisions. This is good. 

The decisions, however, make DOJ and district courts twitchy. Nationally, plans are brewing to expand court inquiries into attorney-client communications about deals – possibly treading on highly confidential ground. This is bad. 

Stave this off (or anticipate the trend) by revisiting that quaint old practice of conveying formal government offers to your clients, in writing, with an explanation of the offers’ pros and cons. After Frye and Lafler, seems imprudent to go to trial without such a letter in the file.

Image of the Honorable Judge John T. Noonan from http://blog.beliefnet.com/pontifications/files/import/imgs/Judge%20Noonan.jpg

Steven Kalar, Senior Litigator N.D. Cal FPD. Website at www.ndcalfpd.org



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Case o' The Week: Duncan Do-Nots: 28 years for Sex Registration Offense Grossly Disproportionate

Judge Bybee, (right) joined by Judges Kleinfeld and Canby, end 2008 with a bang: with an Eighth Amendment habeas reversal of a California sex-registration sentence. See Gonzalez v. Duncan, __ F.3d __, No. 06-56523, 2008 WL 5399079 (9th Cir. Dec. 30, 2008), decision available here.

Players: Big victory by CD Cal. Federal Defender Sean Kennedy and Deputy FPD Gia Kim.

Facts: Petitioner Gonzalez was charged with two felony counts of failing to register, strikes were alleged, and Gonzalez decided to go pro per. Id. at *1. He turned down a two-year offer, and went to trial. Id. The jury acquitted on the failure to register a change of address, and convicted on failure to register within five working days of Gonzalez’s birthday. Id. at *2. (He had registered within three months of his birthday). Id.

He was sentenced to twenty-eight years to life, and lost his state appeals and his federal habeas petition in the district court. Id. at *2-*3.

Issue(s): “On habeas review, we must decide whether his sentence violates the Eighth Amendment’s prohibition against cruel and unusual punishment and, if so, whether the contrary conclusion of the California Court of Appeal constituted an unreasonable application of clearly established federal law.” Id. at *1.

Held: “[W]e . . . conclude that Gonzalez’s sentence is grossly disproportionate to his offense. We further conclude that the California Court’ of Appeal’s decision affirming Gonzalez’s sentence constitutes an unreasonably application of clearly established federal law under 28 U.S.C. § 2254(d)(1).” Id.

Of Note: In Gonzalez authoring Judge Bybee (joined by Judges Kleinfeld and Canby) delves the “gross disproportionality” principle of the Eighth Amendment. Id. at *3. Judge Bybee surveys five Supreme Court decisions for “guidance on how gross disproportionality review operates in practice.” Id. He concludes that the “gross disproportionality” principle is clearly established – but “the details are not.” Id. at *6. To help flesh out these details, Judge Bybee logically turns to how the Ninth Circuit has approached this corner of Eighth Amendment law. Id. at *6.

Logical to look to the Ninth, yes, and done by federal habeas courts all the time – but technically allowed under AEDPA? In Carey v. Musladin, 549 U.S. 70, 74 (2006), the “button” habeas case, the Ninth’s citation of its own precedent was a little sub-issue that got batted around a fair bit. As demonstrated here in Gonzalez, however, it is tough to divine the “details” of a “clearly established” Supreme Court decision without considering circuit court authority. This is particularly true in our era of fractured Supreme Court decisions, where plurality is the rule, not the exception. Maybe it is O.K. to cite circuit authority if one does so quietly, or inconspicuously (small font? a footnote?)

Good old AEDPA: the only area of law that makes the Rule Against Perpetuities seem intuitive, by comparison.

How to Use: Gonzalez turned down an offer of two years; his ultimate sentence was twenty-eight years to life. Id. at *1. The fact that his ultimate sentence was a high multiple of the plea offer he rejected is relevant to determining whether a Three Strike sentence is grossly disproportionate to the triggering offense. Id. at *8 & n.11. If you see an Eighth Amendment claim in your client’s future, document the history of rejected offers.

(Also, along the lines of the observations in the “Of Note” section above, it interesting that Judge Bybee cites Reyes v. Brown – a Ninth Circuit case – for this proposition. ).

For Further Reading: Referring to a circuit decision in a post-AEDPA habeas petition? Do so sotto voce. For an interesting view on what happens when the Ninth is less – discrete – about its reliance on its own authority, see Note, Ninth Circuit Uses Circuit Opinions to Interpret ‘Clearly Established Federal Law', Harvard Law Review, April 2006, available here.

At its core, the Ninth Circuit’s decision in Musladin addressed more than just the surface issue of when a defendant is deprived of a fair trial – the decision likely represents a concern with AEDPA’s ramifications and possibly its constitutionality. The Musladin majority’s decision to indicate that circuit opinions constitute persuasive authority in interpreting federal law, in contravention of the Supreme Court’s reading of AEDPA, signals the circuit’s concerns about the statute.

Id. at 1938.

Maybe with a new Justice or two on the horizon, the Ninth can muster another swipe at this target?


Image of the Honorable Jay Bybee from http://www.abovethelaw.com/2006/11/benchslapped_reinhardt_v_bybee_1.php


Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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