Case o' The Week: "During" means "During" . . . Unless "During" an Illegal Reentry Offense - Cruz-Gramajo

"During" means a temporal relationship, when an event takes place while something else is going on -- unless you're an alien charged with illegal reentry. United States v. Cruz-Gramajo,__ F.3d __, No. 07-50381, 2009 WL 1813336 (9th Cir. June 26, 2009) (decision available here). A disappointing decision on a complex sentencing challenge, with a convincing dissent by Judge Pregerson.

Players: Hard-fought case by CD Cal. AFPDs Davina Chen, Michael Tanaka, and Gia Kim. Judge Hall authors the decision joined by Judge R. Smith, Judge Pregerson with a compelling dissent.

Facts: Gruz-Gramajo consolidates three cases. “The facts in each case are similar. Defendants are foreign citizens who were deported and then returned to this country without permission. After their illegal reentries - but before immigration authorities discovered them - Defendants committed and were convicted for various state law offenses, including burglary, driving under the influence, and evading police. At sentencing for their § 1326 offenses, the district courts held that Defendants’ intervening state law crimes constituted ‘criminal history’ for purposes of calculating their Guidelines ranges.” Id. at *1.

Issue(s): “Defendants attack these holdings. They note that the Guidelines exclude from ‘criminal history’ acts that are defined as ‘relevant conduct’ to the conviction offense. Relevant conduct, they argue, includes conduct occurring ‘during’ the conviction offense. Illegal reentry is a continuing offense that lasts from reentry until the violator is found by immigration authorities. Therefore, Defendants argue, the state law crimes they committed after returning to this country were still ‘during’ their § 1326 offenses and thus do not constitute ‘criminal history.’” Id. at *1.

Held: “Defendants’ argument ignores the context, structure and purpose of the Guidelines. We affirm the district courts' decisions to include Defendants' intervening state law crimes in the criminal history calculation.” Id. at *1.

Of Note: In addition to the disappointing primary holding of the case, Judge Hall also skirts another dangerous issue: socking an alien with extra criminal history points for violating § 1326 while under a criminal justice sentence (the USSG § 4A1.1(d) two-point bump). Id. at *1,*9. In this familiar scenario, an alien enters the U.S., later commits a state crime, and is found by ICE agents in state custody. The government typically argues for the § 4A1.1(d) bump even though the alien committed the continuing crime of “entry” long before, and even though the alien is almost always detected by ICE before the state conviction takes place.

In this decision, the majority dodges the issue as to one alien under a harmless error analysis, but holds it applies to the second. Id. at *9. Importantly, however, the alien to whom the points applied had a probation bench warrant out for him on an old case when detected on the federal case. Id. Thus, the key issue for the typical § 4A1.1(d) scenario remains unresolved: if the alien is not on parole or probation, enters, picks up a new state case and is detected by the feds before the state conviction, do the two points apply?

Cruz-Gramajo joins the recent, equally disappointing Lomeli-Mences decision that flirts with this frequent issue. See blog here.

Assignment of these two points in this setting is tremendously unfair, particularly because ICE routinely delays the initiation of federal prosecutions to maximize custodial time by avoiding concurrent sentences. See id. This guideline subsection deserves en banc scrutiny (of Lomeli-Mences, ideally), particularly because immigration offenses are now the majority of federal prosecutions.

How to Use: To shake the defense attack, Judge Hall undertakes an extensive and expansive discussion of relevant conduct. Id. at *3-*9. Much of that discussion involves the relation of relevant conduct, conduct used to enhance a specific guideline (as an adjustment or specific offense characteristic), and grouping. Id. That discussion deserves a close read: it is peppered with broad assertions that could help in other sentencing contexts.

For Further Reading: The better argument, we think, is Judge Pregerson’s dissent. Id. at *10. Relevant conduct says don’t count other offenses committed “during” a federal crime for criminal history points – and in illegal-reentry case, state crimes are clearly “during” the continuing federal illegal-reentry offense. How, asks the Hon. H.P., does the majority avoid that clear language, particularly when the Supreme Court interpreted “during” with the clean, traditional meaning in the recent Ressam case? Id. at *11. Judge Pregerson also is on the scent of the § 41.1(d) unfairness, with a flag on the recent Lomeli-Mences case. Id. at *12 & n.5.


Image of sign from http://knowledge.wpcarey.asu.edu/article.cfm?articleid=1208



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


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Case o' The Week: 9th + § 211 = +16, Becerril-Lopez and Categorical analysis

An order amending a June decision (and, unfortunately, denying rehearing en banc) gives us an opportunity to reach back a bit in this slow August week in the Ninth Circuit. See United States v. Becerril-Lopez, __ F.3d __, 2008 WL 3982507, ord. (9th Cir. Aug. 29, 2008), decision available here.

Players: Hard-fought appeal by San Diego Assistant Federal Defender Stephanie J. Lacambra. Opinion by Judge Hall (left), joined by Judges Pregerson and Hawkins.

Facts: Becerril-Lopez was convicted of illegal reentry after trial and sentenced to 100 months. Id. at *1. His sentence was enhanced 16 offense levels because he had a robbery conviction, under California Penal Code § 211. Id. He appealed.

Issue(s): “Among other claims, Becerril-Lopez argues that his prior conviction under . . .§ 211 does not qualify as a ‘crime of violence’ under the sentence enhancement provision for illegal re-entry crimes.” Id. at *1.

Held: “[W]e approach the issue as a question of first impression.” Id. at *5. “We hold that it does, and we affirm.” Id. at *1. “[W]e hold that a conviction under Cal. Penal Code § 211 could only result from conduct that constitutes a ‘crime of violence’ for purposes of U.S.S.G. § 2L1.2.” Id. at *8.

Of Note: The sixteen-level specific offense adjustment at issue in this case applies if a deported alien had been convicted of a “crime of violence.” Id. at *5. The question, thus, is whether California Section 211 robbery is a “crime of violence” (a question that had been unresolved in the Ninth).

Note that Section 211 had been deemed a “crime of violence” under the Career Offender Guideline, USSG § 4B1.2. Id. at *5 (citing United States v. McDougherty, 920 F.2d 569 (9th Cir.1990)). That holding does not, however, control this analysis – which hinges on the definition of “crime of violence” in the illegal reentry guidelines, § 2L1.2.

Becerril-Lopez well-illustrates a particularly tricky area of federal practice: different definitions of the same term can have a profound impact on sentencing exposure. For example, because of inconsistent federal definitions the term “crime of violence” can mean different things depending on the statute at issue – 18 USC § 16, the Career Offender guidelines, the illegal reentry guideline – even the Bail Reform Act! A predicate conviction can often qualify as a “crime of violence” under one of these statutes, but not qualify under another.

Don’t be cowed by a P.O. or AUSA that touts Career Offender authority in support of a specific offense adjustment in the illegal reentry context. The analyses are as like as cheese and chalk – a fact often lost on our Worthy Opposition.

How to Use: Though the San Diego Defender didn’t win (in this case), the decision reveals how that office is methodically attacking California priors that trigger the whopping specific offense adjustments. Here, Assistant Defender Lacambra attacked Section 211 as over broad in six different ways. Id. at *6. The attacks didn’t win for this particular statute, but might for another . . . like burglary.

As we’ve noted before, San Diego Chief Appellate Attorney Steve Hubachek is taking on the California burglary statute as overbroad, because unlike the “generic” federal definition California Penal Code Sections 459 and 460 do not contain an “unprivileged entry” element. Cf. United States v. Rodriguez-Rodriguez, 393 F.3d 849, 852-53 (9th Cir. 2005) (discussing Cal. Penal Code § 459). That issue (in a Defender amicus) was argued before an en banc court of the Ninth Circuit on June 25th of this year. See United States v. Snellenberger, C.A. 06-50169.

The beauty of the admirably aggressive San Diego approach is that the Penal Code is often amended – as are the guideline definitions of predicate convictions. Each new iteration presents a new opportunity to take this issue back up again. Hundred-month sentences for illegal reentry defendants (as happened here) should come with a litigation price.

For Further Reading: How does Justice feel about all this “categorical approach” litigation? Un-enthused (un-surprisingly). See DOJ Comments to United States Sentencing Commission, available here.


Photograph of Judge Hall from http://usinfo.state.gov/journals/itdhr/1296/ijde/pitts.htm.

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


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Case o' The Week: Loose Lips Sink Fraud Ship, US v. Dearing, "reckless indifference" and health care fraud

"Loose lips might sink ships." A great motto for wartime discretion, bad evidence when it comes from a boss, speaking to a health care employee during the midst of a fraud investigation. See United States v. Dearing, __ F.3d. __, 2007 WL 2769657 (9th Cir. Sept. 25, 2007), decision available here. This disappointing Hall decision is primarily concerned with the adequacy of evidence in a health care fraud trial. Buried in some -- terse -- analysis, however, is a troubling erosion of mens rea requirements in fraud cases (with implications for other white-collar fraud cases, such as securities fraud).

Players: Judge Hall authors, Canby and Callahan join.

Facts: Art Dearing was a part-owner of a health care facility with his brother. 2007 WL 276957, *1. Art’s brother ran the place, and had repeated problems with (fraudulent) Medicaid billing. Id. Evidence at trial suggested that Art was aware of these problems, although he wasn’t involved in day-to-day operations and didn’t personally submit for reimbursements. Id. at *1-*2. For example, he allegedly told an employee complaining about fraudulent activity, "loose lips sink ships." The health care fraud statute requires that the defendant “knowingly and willfully executes . . . a scheme” to defraud a health care benefit program. Id. at *3. The trial court, however, instructed the jury that the “intent to defraud” could be shown if the defendant acted “with reckless indifference to the truth or falsity of the statements.” Id. at *4. After conviction, Dearing challenged this instruction (among other issues) on appeal.

Issue(s): “Dearing . . . claims that the district court erred in permitting a jury instruction that allowed a finding of guilt based upon reckless indifference rather than willful intent.” Id. at *4. “Dearing . . . asserts that a second instruction effectively lowered the mens rea requirement from willfulness to recklessness.”

Held: “We hold that the phrasing of this additional instruction was not erroneous and did not effectively relieve the government of its burden of proving that Dearing’s actions were willful. . . .” Id. at *5. “We have repeatedly held that the intent to defraud may be proven through reckless indifference to the truth or falsity of statements.” Id. “[T]he ‘reckless indifference’ instruction that Dearing challenges was tethered to the ‘specific intent to defraud’ element, which the government was required to prove in addition to the first element. Therefore its inclusion did not negate the separate instruction that to convict, the jury had to find that Dearing acted ‘knowingly and willfully.’” Id. (emphasis in original).

Of Note: Buried in Dearing is some bad law for white collar and fraud cases – and it doesn’t help that the analysis isn’t the model of clarity. The specific instruction at issue was a definition of “intent to defraud.” Id. at *4. The contested instruction allowed the government to show “intent to defraud” by proving the defendant acted with “reckless indifference to the truth or falsity of the statements.” Id. Dearing persuasively argued that this means that a defendant who acted with reckless indifference could be convicted of the crime of knowingly and willfully executing a scheme to defraud. In rejecting this argument, Judge Hall relied on a footnote from a prior Ninth Circuit case for the proposition that a “reckless indifference” instruction can support a securities fraud conviction. Id. at *5, quoting United States v. Tarallo, 380 F.3d 1174, 1189 & n.5 (9th Cir. 2004).

Backdating folks, take note: Dearing solidifies a suspect trend in law, that allows the “willful” element to be satisfied by mere reckless indifference in fraud cases (including securities fraud). See Tarralo, 380 F.3d at 1188-89. This doesn’t make sense – willful action, and reckless indifference, are traditionally very different mental states. This deteriorating mens rea trend in fraud cases is fertile ground for a law review article, and cries out for a cert. petition.

How to Use: One thing that saved the conviction in Dearing was that the “reckless indifference” instruction was “tethered” to other instructions requiring higher mens rea showings. Id. at *5. Don’t let the government argue that a “reckless indifference” instruction – standing alone – suffices for a fraud case: in Dearing, the jury could not have relied on reckless indifference alone to find the required mental state, given other instructions that were structured to also require proof of a “specific intent to defraud.” Id.

For Further Reading: We’ve reviewed the oddities of federal mens rea requirements in the Lombera-Valdovinos blog. See blog here. Try to explain this area to a lay person: attempted illegal reentry requires specific intent, but simple illegal reentry has no mens rea requirement. Health care fraud requires the defendant “knowingly and willfully” executed a scheme to defraud – but “reckless indifference” is close enough for a conviction? For an interesting article criticizing the American approach to the concept of mens rea, see Keren Shapira-Ettinger, The Conundrum of Mental States: Substantive Rules and Evidence Combined, 28 Cardozo L. Rev. 2577 (2007).


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

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