Case o' The Week: The Ninth Gets Constructive - Davis and Constructive Amendments

  Constructive amendment math: 1+1+9 = 3.

One (grand jury) indicts on a charge, and a second (petit) jury convicts on a different charge  -- add the Ninth, and a (third) petit jury will hear the charge again on remand and retrial.

 United States v. Ricky Davis, 2017 U.S. App. LEXIS 6445, (9th Cir. Feb. 16, 2017), decision available here.

The Honorable Judge Wallace Tashima

Players: Decision by Judge Tashima, joined by Judge Hurwitz and District Judge Adelman. Welcome win for AFPD Peggy Sasso, E.D. Cal. (Fresno).

Facts: Ricky Davis was convicted after trial of, among other things, attempted sex trafficking in violation of 18 USC § 1591(a). Id. at *2. Davis was charged with pimping a minor girl, “knowing or in reckless disregard of the fact that the person had not attained the age of 18 years.” Id. at *5.

  At trial, however, the jury was instructed that it could find Davis guilty if he “had a reasonable opportunity to observe [the minor], and that [the minor] would be caused to engage in a commercial sex act.” Id. at *6. (A valid approach to prove the offense under the statute, but not an allegation charged in the indictment).

Issue(s): “Davis challenges his conviction under § 1591(a) on the ground that the district court's jury instruction constructively amended the indictment.” Id. at *3.

Held: “We . . . conclude that a constructive amendment occurred because the crime charged [in the indictment] was substantially altered at trial, so that it was impossible to know whether the grand jury would have indicted for the crime actually proved . . . . Our holding today is consistent with United States v. Lockhart, 844 F.3d 501 (5th Cir. 2016), the facts of which are indistinguishable from this case. There, the Fifth Circuit observed: By including the language found in § 1591(c), the district court materially modified an essential element of the indictment by transforming the offense with which the indictment charged [the defendant] from one requiring specific mens rea into a strict liability offense. Id. at 515-16 (footnote and citation omitted). We agree.” Id. at *7-*8 (internal quotations and citation omitted).

Of Note: Constructive amendment, or variance? A critical question: constructive amendments usually mean reversals, while mere variances are more likely to be upheld on a “prejudice substantial rights” analysis.

  Judge Tashima explains “An amendment of the indictment occurs when the charging terms of the indictment are altered, either literally or in effect, by the prosecutor or a court after the grand jury has last passed upon them. A variance occurs when the charging terms of the indictment are left unaltered, but the evidence at trial proves facts materially different from those alleged in the indictment.” Id. at *8-*9 (internal quotations and citation omitted).

  Because the jury instruction here “had the effect of alternating the terms of the indictment,” this was a constructive amendment – earning a reversal.

  Davis is clear and accessible discussion on the (sometimes nuanced) issues of constructive amendments and variances – a good resource, for these challenges.

How to Use: Davis received a sentence of 300 months, concurrent, on another count – so why reverse and remand on this count? Because the sentencing package became “unbundled” when this count was reversed --  requiring remand and resentencing or retrial. Id. at *9-*10.

  “Unbundling” is valuable appellate principal, much on the mind of the Johnson litigators of late. Turn to Davis for a useful and recent example of this remand-hook.

                                        

For Further Reading: In February, A.G. Sessions created a “Task Force on Crime Reduction and Public Safety.” On April 5, the Attorney General distributed an “update” on that task force, to the United States Attorneys. See Memo here. Recommendations from the Task Force hit by July 27.

  In related news, A.G. Sessions recently spoke at Nogales and laid out immigration prosecution priorities. See speech here. 

  Busy times ahead.

Image of Judge Tashima from http://civicscontest.wixsite.com/kennedy/single-post/2017/02/02/Student-Civics-Contest-Judges-Recall-Internment-of-Japanese-Americans

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

.

.

Case o' The Week: A Win Despite Murphy's Law - Murphy and Section 514 Jury Instructions

 Too bogus to fool the IRS, but real enough for conviction -- Murphy’s law is alive and well.

United States v. Murphy, 2016 WL 3201582 (9th Cir. June 9, 2016), decision available here.

Players: Decision by visiting District Sr. Judge Block, joined by Judges Clifton and Ikuta. Big win for former Federal Defenders of San Diego, Inc. AFD Ben Coleman, Coleman & Balogh LLP.

Facts: Murphy didn't pay his federal taxes. Id. at *1. After a number of inquiries by the IRS, Murphy contacted the agency with an offer to settle. Id. at *2. The offer - in peculiar legalese – was of four “bonded promissory notes.” Id. at *2. Wading through the dense language of the “notes,” it appears Murphy was offering to pay his taxes from the “secret accounts” held for U.S. sovereign citizens created after the U.S. left the gold standard. Id. at. *5 & n.1. Among other crimes, Murphy was charged with violating 18 USC § 514, fraudulently passing a false instrument purporting to be an actual security issued under the authority of the United States. Id. The jury was not instructed of the “under the authority” element, and found Murphy guilty. Id. at 4. The defense did not object to this instruction. Id. at *3.

Issue(s): “[Murphy] argues that the evidence was insufficient to support the § 514 convictions and, alternatively, that the district court erred by failing to instruct the jury on an element of that offense.” Id. at 4.

Held: “Although the evidence that the ‘bonded promissory notes’ were issued under the authority of the United States is sufficient to avoid a judgment of acquittal, it is not sufficient to convince that the jury made the necessary finding, ….or that it would have done so had it been asked.” Id. at *6. (quotations and internal citations omitted). 

“We further conclude that we should exercise our discretion to correct the error. . . . Murphy was undeniably denied his constitutional right to have all of the elements of the crime submitted to the jury, while the government was concomitantly relieved of its obligation to prove very element beyond a reasonable doubt.” Id. (quotations and internal citations omitted).

Of Note: This is a welcome win on jury instructions challenges – with particular punch as a plain error reversal. It is interesting, however, that the Ninth did not bite on Murphy’s “sufficiency of evidence” challenge. Id. at 5. Can someone be convicted of offering fictitious instruments of the U.S., when the offered instruments are extraordinarily dubious “sovereign citizen” bonds – things that had no chance of actually conning the IRS? Yep. Even “bogus obligations that a prudent person might upon consideration be unlikely to accept as genuine” are criminalizes under this statute. Id. at 5 & n.1 (quotations and citation omitted).

How to Use: Scrambling to salvage the conviction, the government argued that §514 covers a wide array of fictitious instruments “and that Murphy was, at worse, convicted on a different theory of guilt than that charged in the indictment.” Id. at *6 & n.2. The Ninth is having none of it: switching theories of guilt from the indictment would be a fatal variance, and “((s)uch a conviction is just as constitutionally infirm as a conviction on fewer than all elements.” Id. “Fatal variances” are too often not as fatal as we'd like: look to footnote two as useful tool to pin the government down, and brush back attempts to resuscitate convictions through creative indictment interpretations.

                                               

For Further Reading: Is Johnson retroactive to the guidelines? Does guideline commentary (that does not interpret, and conflicts with the guidelines) somehow salvage the guidelines from Johnson attack? Our friend and Federal Defender Lisa Freeland has had these issues batting around the Supreme Court for months, in the Jones cert. petition. For an interesting description of the relist of Jones after last week’s Supreme Court conference (with a note of the recent and deepening split from the Fourth), see Relist Watch, available here. 

“Murphy’s Law” quote from http://askgramps.org/files/2015/12/Murphys-law.jpg

Steven Kalar, Federal Public Defender Northern District of California. Website at www.ndcalfpd.org

.

Case o' The Week: Ninth Ward(s) Off Constructive Amendment -- Ward, Fatal Variances, and Constructive Amendments

Hon. Chief DJ William Smith

  It would be unfair to expect a Judge who uses Twitter, has Dylan and Wilco on his iPad playlist, and who penned a 70+ page swipe at the crack guidelines, to necessarily write a great decision on constructive amendments.

  (But it is great when that’s the way it happens works out . . . ) United States v. Ward, 2014 WL 1317155 (9th Cir. Apr. 3, 2014), decision available here.

Players: Decision by visiting Chief DJ William Smith (above right), joined by Judges Watford and Hurwitz. Big win by (former CD Cal AFPD) Davina Chen.

Facts: Ward stip’ed to fraud counts and went to a jury trial on two counts of agg identity theft (18 USC Section 1028(a)(1)). Id. at *1. The indictment named two victims in those counts: Glen and Hagler. Id. at *1. 

  Over defense objection, the government introduced evidence that other victims also had their IDs stolen. Id. at *2. 

  Jury instructions did not specify that the victims of the agg ID theft had to be Glen and Hagler. Despite objections from the government and the defense, the court refused to correct that omission. Id. at *2-*3. Ward was convicted.

                                                                                                                         

Issue(s): “The question before us is whether the district court’s instruction resulted in a constructive amendment of the charges in Counts VI and VII [the agg ID counts].” Id. at *5.

Held: “Read together, these cases instruct that the determination of whether a constructive amendment has been effected requires sensitivity to both the jury instructions as a reflection of the indictment, and to the nature of the proof offered at trial. More specifically, when conduct necessary to satisfy an element of the offense is charged in the indictment and the government's proof at trial includes uncharged conduct that would satisfy the same element, we need some way of assuring that the jury convicted the defendant based solely on the conduct actually charged in the indictment. Typically, that assurance will be provided by jury instructions requiring the jury to find the conduct charged in the indictment before it may convict. If the jury instructions do not impose that limitation, however, the defendant's conviction could be based on conduct not charged in the indictment. That possibility results in a constructive amendment of the indictment, requiring reversal, because it destroys the defendant's substantial right to be tried only on charges presented in an indictment. Applying that rationale here, we conclude that the district court constructively amended the indictment by permitting the jury to convict Ward on Counts VI and VII based on conduct not alleged in those counts. Ward was indicted for aggravated identity theft as to only Gerald Glen and Chris Hagler, and the identity of the victims was necessary to satisfy an element of the offense because aggravated identity theft requires proof that the victim was a real person. But the jury heard testimony that Ward also victimized [other victims].Then, the jury was instructed that it could convict Ward on Counts VI and VII if he stole the identity of ‘a real person,’ without further specificity. On those facts, we simply cannot know the basis for the jury's aggravated identity theft convictions.” Id. at *6-*7 (internal quotations and citations omitted).

Of Note: Constructive amendments and fatal variances are the “Rule Against Perpetuity” of criminal justice: a tricky area of law that is easy to forget. From the defense side, the nutshell is: constructive amendment good (gets a reversal), fatal variance bad (usually no relief, unless prejudices substantial rights). Judge Smith gives us a thorough and accessible discussion that is a good start to unravel these distinct proof problems. See id. at *4-*5.

How to Use: While the government also objected to the instruction at trial, it had the chutzpah on appeal to argue that the error wasn’t preserved. Id. at *3. The Court gives a nice little backhand to this argument, finding that although defense counsel didn’t say, “Fifth Amendment,” “the substance of the objection was patently clear.” Id. It’s a useful passage to fend off plain error when the government is arguing waiver on appeal.

                                               

For Further Reading: The Heritage Foundation is spot-on when it asks, “Can we Get Some Americans Out of Jail?” Heritage commentator Israel Ortega explains why money wasted on mand-min jail terms is better spent on prevention and rehabilitation. See article here. 

   Mr. Ortega touts the Smarter Sentencing Act– a bipartisan bill that is now out of Committee. See bill summary here.

Image of Chief Judge William Smith from http://law.rwu.edu/blog/three-get-ready

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

.

.