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: J/x Jinx - Luong and "interstate commerce" proof, Hobbs Act robberies

Ninth denies Perry Mason surprise.

 

 

United States v. Luong, 2020 WL 4033847 (9th Cir. July 17, 2020), decision available here.

 

Players: Decision by visiting District Judge Smith, joined by Judges Rawlinson and Bybee.

  Hard fought appeal by former ND Cal AFPD Ned Smock, and ND Cal AFPDs John Paul Reichmuth and Robin Packel.

 

Facts: It was effectively conceded at the Hobbs Act trial that Luong had robbed a man at gun point. Id. at *1. Luong, who lived in the Bay Area, had lured the Bay Area victim to a BART station through a car ad placed on a Bay Area Craigslist post. Id. Craigslist is a local internet service, although it does link to sales of similar items in adjacent states. Id. 

  The defense only contested the interstate commerce element at trial: the jury hung on the Hobbs Act and 924(c) counts. Id. Luong was convicted at retrial.

 

Issue(s): Was there sufficient evidence of interstate commerce to satisfy the Hobbs Act jurisdictional requirement?

 

Held: “Even if we view Craigslist as facilitating only local transactions, the interstate-commerce jurisdictional nexus is still met here. The Supreme Court’s opinion in Taylor v. United States, 136 S. Ct. 2074 (2016), guides our analysis. In Taylor, the Supreme Court concluded that, because Congress has the authority to regulate the national marijuana market, including the purely intrastate production, possession, and sale of marijuana, based on its aggregate effect on interstate commerce, so too may Congress regulate intrastate marijuana theft under the Hobbs Act. Id. at 2077. While the Court in Taylor limited its holding ‘to cases in which the defendant targets drug dealers for the purpose of stealing drugs or drug proceeds[,]’ and declined to ‘resolve what the Government must prove to establish Hobbs Act robbery where some other type of business or victim is targeted[,]’ id. at 2082, the logic employed in Taylor readily applies to the facts of this case. Therefore, the Hobbs Act’s interstate-commerce element is satisfied in cases like this one, where the government demonstrates that a person used a commercial website to advertise a commercial transaction in order to facilitate a robbery.” Id. at *5. 

 

Of Note: Luong only contested the jurisdictional element at trial, and objected to evidence related to that element. Id. at *13. The district court nonetheless denied acceptance of responsibility at sentencing! In a silver lining to this dark cloud of a case, the Ninth reverses and remands for a resentencing. Defense counsel, explains the Ninth, cannot be expected to sit on their hands and tolerate government surprise witnesses “a la Perry Mason.” Id. at *14. 

    Luong is the rare acknowledgement that “acceptance of responsibility” should not be used as a hammer to punish defendants for going to trial on jurisdictional elements: a welcome addition to the law on that guideline. 

 

How to Use: On appeal, Luong forcibly argued that the Hobbs Act statute has a different and more-demanding interstate commerce requirement than other criminal statutes, that are satisfied by mere “use” of interstate commerce. Id. at *6. 

  The Ninth dodges this issue, holding that Luong’s use of Craigslist was sufficient to satisfy the Hobbs Act requirement, even if it is more stringent. Id.  

  This section of the decision is worth a very close read for Hobbs Act cases: even visiting DJ Smith concedes in Luong that there are cases where a robber’s use of the internet would be so minimal as to fall short of the jurisdictional requirement.

                                               

For Further Reading: COVID-19 now rages through Santa Rita Jail. The huge facility houses almost all federal pretrial inmates in the Northern District of California. The jail now has over 100 inmates who have recently tested positive, and over 40 deputy sheriffs. See article here. At least forty of these COVID-positive inmates are feds: a disproportionately high figure, considering the relative population of federal inmates in the jail. 

  Although county inmate populations have been voluntarily reduced in the jail, the federal population has again risen to pre-pandemic high levels. 

  This new crisis cries out for the U.S. Attorney’s Office to reduce the numbers of federal inmates. Time for a NorCal Bail Summit.

 

 

Image of Perry Mason from https://www.townandcountrymag.com/leisure/arts-and-culture/a32947129/how-perry-mason-hbo-tv-different-from-original/

 

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

 

 

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Case o' The Week: Attempted Robbery of Absent Victims? "Substantial" Enough for Ninth - Soto-Barraza and Substantial Steps for Attempted Robberies

Which victim triggers the lowest level of proof, to sustain a federal conviction for attempted robbery?

  A.  A federally-insured bank;

  B.  An armored car, or;

  C.  An international drug smuggler?

United States v. Soto-Barraza, 2020 WL 253560 (9th Cir. Jan. 17, 2020), decision available here.

Agent Terry Memorial, in Mesquite Seep Arizona

Players: Decision by Judge Ikuta, joined by Judge Hurwitz and DJ McShane.

Facts: Border Patrol agents were searching for armed gangs, who preyed on drug smugglers bringing pot across the border. Id. at *1. The agents detected armed suspects (but no victim drug smugglers were around). A gun battle ensued: one agent was killed. Id. 

  Recovered AK-47-style guns, ammo, and backpacks were associated by DNA and prints to Souto-Barraza and Sanchez-Meza. Id. 

  The men were charged with the murder of the agent, Hobbs Act conspiracy to interfere with commerce by robbery, attempted interference with commerce by robbery, assault on the Border Patrol Officers, and carrying and discharging a firearm in furtherance of a crime of violence. Id. at *2.

   Souto-Barraza and Sanchez-Meza were convicted at a trial, and sentenced to life. Id. at *3.

Issue(s): “The defendants argue that there was insufficient evidence to establish they had taken a substantial step [for attempted robbery] because there was no evidence that marijuana smugglers were actually present in their immediate vicinity or that a robbery was imminent . . .  [D]efendants rely primarily on cases considering whether defendants had taken a substantial step toward robbing a store or bank.” Id. at *8.

Held: “But here the defendants were targeting individual victims, not a building. In these circumstances, courts place greater weight on other factors, such as whether the defendants are lying in wait for the intended victim, . . . or have begun traveling to the location where the victims may be found. . . . Because the central inquiry is whether the evidence is sufficient to demonstrate that the defendants will carry through with the offense unless interrupted, there is no requirement that the actions constituting the attempt have a particular geographic proximity to the object of the substantive offense. . . . . Nor need a criminal act be imminent. . . . . Because a reasonable jury could have concluded that Soto- Barraza and Sanchez-Meza did all they could to prepare to rob marijuana smugglers they would encounter and would have followed through with the crime had the [Border Patrol] agents not intervened, the district court correctly denied defendants’ motion for judgment of acquittal.” Id. (internal citations and quotations omitted)

Of Note: In this opinion Judge Ikuta also rejects an interesting extradition argument about “dual criminality.” Id. at *4. 

  Much of the decision, however, discusses and distinguishes prior authority on attempted robbery. Id. at *6. Judge Ikuta focuses on the “substantial step” analysis, and distances this case from attempted robbery cases where a building was targeted. Id. at *7. The Ninth appears to create two lines of analysis: one for attempted robberies of banks (or armored cars), and a second for attempted robbery of individuals. Id. at *8. 

  (Why those two fact patterns produce different standards isn’t entirely clear). 

  Yet another quirk in the quirky law of “attempt."

How to Use: The defense did earn one reversal in this case. The government conceded that conspiracy to commit Hobbs Act robbery is not a crime of violence. Id. at 8 & n.8. The Ninth thus reversed the convictions for “carrying and discharging a firearm in furtherance of a crime of violence, 18 U.S.C. § 924(c)(1)(A)(i), (iii).” Id. at 2 & n.2.

  Judge Ikuta curiously buried this reversal in a mem dispo referenced in a footnote. Id. at *8 & n.8. Nonetheless, snag the government’s concession and the Ninth’s holding for future use.

                                               

For Further Reading: What was the source of at least two of the assault weapons recovered from the scene of this Border Patrol Agent’s murder? 

  The ATF! 

  In “Operation Fast and Furious,” ATF Agents in Phoenix let suspects walk away with weapons – 2,000 guns, in all. Two of these ATF “walk-away” guns were carried by the crew in the gun battle in this this case. For a remarkable account of this tragic operation, see article here. 

Image of memorial to Border Patrol Agent Brian Terry from https://www.kpbs.org/news/2013/sep/16/new-details-emerge-in-hunt-for-brian-terrys/

Image of "Fast and Furious" book from https://www.amazon.com/Operation-Fast-Furious-Gunwalking-Trafficking-ebook/dp/B0056NU0DS

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

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Case o' The Week: The Slings and Arrows of Outrageous Fortune - Simon and Guideline Sentencing of Hobbs Act conspiracies

2B, or Not 2B?

 That is the question.

United States v. Simon, 2016 Westlaw 6610233 (9th Cir. Nov. 9, 2017)(mem.)

 Ord. granting en banc review, No. 15-10203, Jan. 27, 2017, order available here.

Players: Order granting call for en banc review by Chief Judge Thomas. Underlying mem dispo by Judges Graber and Murguia, and District Judge O’Connell.

Hon. Judge Graber

Facts: Simon and co-Ds conspired with a CI to rob drugs from a delivery van. Id. at *1. Simon, arrested on route to the robbery, had a gun. Id.

  He was convicted after trial of § 1951, § 922(g), § 371, and § 659 (Hobbs Act conspiracy, felon in possession, conspiracy to commit theft in interstate shipment, and theft). Id. 

 Simon was sentenced to 192 months. Id. The district court applied U.S.S.G. § 2X1.1 – the “conspiracy” cross-reference guideline. Id. at *2; see also Guideline § 2X1.1 here. The court used this cross-reference to apply several adjustments that increased the guideline range. Id.

Issue(s): The e.b. order is enigmatic on the basis for this sua sponte call.

Hon. Judge Murguia

The oral argument, however, gives us a good clue, as the panel struggled with whether or how to apply U.S.S.G. § 2X1.1 See here.

  In the mem dispo, the panel describes the issue thus: “Simon argues that the district court committed a procedural error at sentencing by applying U.S.S.G. § 2X1.1. In Simon’s view, the court was required to apply U.S.S.G. § 2B3.1. The district court applied several enhancements through operation of § 2X1.1 that likely would not have applied under § 2B3.1.” Id. at *2.

  During the oral argument, Judge Graber describes the issue as whether the selection of the controlling guideline for Hobbs Act conspiracies to commit robbery should be “based on the statute, or based on the guideline.” See video here, at 23:26.

Hon. District Judge O'Connell

Held (by Panel): “We defer ruling on that issue.” Id. at *2.

Of Note: During oral argument, Judge Graber flagged a “disconnect” in the Ninth’s “own caselaw” on the question. See video of argument here, at 11:44. The panel asked about United States v. Temkin, 797 F.3d 682, 692-93 (9th Cir. 2015), a decision which tackled § 2X1.1 in the context of solicitation to commit murder.

  Also discussed during argument was the Second Circuit’s decision in United States v. Amato, 46 F.3d 1255 (2nd Cir. 1995), which concluded that § 2X1.1 was appropriate for a Hobbs Act conspiracy (instead of § 2B3.1, as urged by the defense here).

  (Interestingly, the argument revealed that Guideline Commission staff advised Probation that § 2X1.1 was the appropriate guideline – and then gave the opposite advice to defense counsel in a different call!)

  To hazard a guess, the issue for the en banc court will be how a district court determines the correct guideline for Hobbs Act conspiracies to commit robbery: by starting with the statute's terms, or by turning to the guidelines? It is a "choice of guidelines" or "how to apply the guidelines" case.

   Much is at stake in the approach – Simon’s counsel reported that the guideline range for his client nearly doubled when the district judge turned to § 2X1.1 in this case.

How to Use: Flag and fight, for Hobbs Act “conspiracy to commit robbery” sentencings. Our position? Section 2B3.1 is the correct guideline.

                                               

For Further Reading: We’ve previously reported the “Safe Schools” litigation in NorCal, where thirty-seven black defendants (and only black defendants) were targeted in a series of federal drug busts near schools in San Francisco's Tenderloin district. See blog entry here. The office of the Federal Public Defender, Northern District of California, filed motions seeking discovery relating to race-based law enforcement actions.

  This hard-fought litigation ultimately resulted in one of the most comprehensive Armstrong discovery orders ever delivered. See the Honorable District Judge Edward Chen’s order here.

  (The government, interestingly, did not appeal this order).

  After the order, the parties spent seven months wrestling with the SF Police Department for the discovery at issue. The U.S. Attorney’s office then filed a motion to dismiss the cases – with prejudice. The government declined to explain why it moved to dismiss the cases.

  District Judge Edward Chen signed the government’s motion to dismiss on January 25, 2017. See order here.

  A remarkable chapter in SF history, and a stunning victory for AFPD Galia Amram and the huge FPD team who collaborated on this litigation. Most importantly, it is a vindication of the enormous courage of our clients, who risked high sentencing exposures to continue the fight against racially-targeted law enforcement. See article here.

  The transcript of the hearing regarding dismissal – reflecting Judge Chen’s thoughtful remarks and serious questions about this law enforcement effort– has been ordered, and will be posted on www.ndcalfpd.org when completed.

  A proud day for indigent criminal defense, though a somber reminder of the many fights that remain.

Image of Hamlet from http://cdn.edgecast.steamstatic.com/steam/apps/324710/header.jpg?t=1479439673

Images of the Honorable Judges Graber, Murguia, and District Judge O’Connell from https://www.youtube.com/watch?v=TRmeQcQMQZg

Image of “Greetings from the Tenderloin”  from https://braidmission.org/wp-content/uploads/2016/07/tenderloin_.jpg

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

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Case o' The Week: One to Savor, on Appellate Waiver --Torres, Appellate Waivers, and Illegal Sentences

 The government cannot coerce a defendant to waive the right to appeal an illegal sentence.

 (Troubling that our government tries: reassuring that the Ninth rebuffs).

   United States v. Jimmy Torres, 2016 WL 3770517 (9th Cir. July 14, 2016), decision available here.

Players: Decision by Judge Murguia, joined by Judges Wardlaw and W.

Hon. Judge Mary H. Murguia

Fletcher. Big win for D. Nev. AFPDs Rachel Korenblat, Alina Shell and Amy Cleary.

Facts: Torres pleaded guilty pursuant to a conditional plea to § 922(g)(1). Id. at *3. The conditional plea allowed an appeal of the denial of a motion to suppress. Id. He was sentenced to 92 months; Torres did not object to the use of priors to increase his guideline range. Id. at *7. In fact, Torres stipulated in his plea agreement to a range that included a big bump for prior “crimes of violence.” Id. On appeal, Torres challenged the use of the “crimes of violence” to enhance his sentence, arguing that the Supreme Court’s 2015 Johnson decision rendered the guideline definition of “crime of violence” unconstitutionally vague. Id.

Issue(s): “Torres . . . challenges his sentence on the grounds that the district court incorrectly enhanced his offense level under section 2K2.1 of the . . . Guidelines, in light of the Supreme Court's . . . . decision in Johnson. . . Johnson held that the ACCA's catch-all “residual clause,” . . . was unconstitutionally vague because it failed to specify the crimes that fell within its scope sufficiently clearly to satisfy the dictates of due process. . . . Torres argues that section 2K2.1(a)(2)’s identically worded residual clause is likewise unconstitutional. Because Torres did not object . . ., we will generally reverse only if we find plain error in his sentence.” Id. at *7. “Before we can decide whether Torres is entitled to relief on his sentencing claim, we must first determine whether his appeal is precluded by his plea agreement, in which Torres knowingly and expressly waive[d]: (a) the right to appeal any sentence imposed within or below the applicable guidelines range as determined by the Court, with the exception of preserving the right to appeal a determination that the [he] qualifies as an Armed Career Criminal; 5 (b) the right to appeal the manner in which the Court determined that sentence on the grounds set forth in 18 U.S.C. § 3742; 6 and (c) the right to appeal any other aspect of the conviction or sentence.’” Id. at *8.

Held: “Here, the Government asserted . . . that it believes Johnson applies to the Sentencing Guidelines. . . . Based on the Government's concession, we assume without deciding that Johnson’s holding nullifies § 4B1.2(a)(2)'s identically worded residual clause. We . . . accept the Government's concession that the district court sentenced Torres pursuant to a provision in the Guidelines that is unconstitutionally vague. This renders Torres's sentence ‘illegal,’ and therefore the waiver in his plea agreement does not bar this appeal. See Bibler, 495 F.3d at 624. And, because the government agrees that Torres’s prior convictions do not justify the imposition of § 2K2.1(a)(2)’s crime-of-violence enhancement absent the residual clause, we vacate Torres's sentence and remand for re-sentencing.” Id. at *9.

Of Note: Does Johnson apply to the Guidelines? Yep, says the government (and thus the Ninth) in Torres. 

   Is Johnson retroactive for guideline cases? Yep, says every Circuit to have considered the issue – except for that renegade Eleventh. See generally petition for cert. at 21-21, available here. (collecting cases – (plus the Fourth’s Hubbard!)).  

  What are the prospects for the Eleventh’s stubborn outlier? Not so hot – the Eleventh's decision was the one slapped with a cert. grant. See Beckles SCOTUS blog summary here. 

How to Use: Bibler lives (whew!). The Ninth confirms in Torres that it won’t allow the government to immunize illegal sentences from appellate review through appellate waiver. 

  Use Bibler and Torres when thinking about sentencing appeals, to cast off some of those coerced appeal-waiver shackles USAOs demand in their pursuit of “efficiency.”  

                                               

For Further Reading: New York robbery is not a “crime of violence,” holds the Second Circuit in United States v. Corey Jones. 

  Why do we care about a Second Circuit decision and New York robbery, way out here in the Ninth? Because Hobbs Act robbery was expressly modeled on New York robbery, the Ninth has explained. See United States v. Aguon, 851 F.2d 1158, 1164 (9th Cir. 1988) (en banc) (“Congressman Hobbs said explicitly that the definitions of robbery and extortion were modeled on the New York Penal Code.”), overruled on other grounds by Evans v. United States, 504 U.S. 255 (1992).  

  The Second Circuit's decision in Jones vindicates our claim that Hobbs Act robbery is not a crime of violence after Johnson. 

  (Our sympathies to the Marble Rye lady, but Jerry ain’t a “violent felon.” See blog entry here (and congrats to AFPD Matt Larsen)).

Image of the Hon. Judge Mary Murgia from http://www.azflse.org/azflse/newsletter/ 

Image of the Hobbs Act from https://covers.openlibrary.org/b/id/5805000-M.jpg

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

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