Case o' The Week: Ninth EDDifies Us on "Victims" - Herrera and Victims Under the Federal Sentencing Guidelines

 Corporations are “people,”

 

and government entities are, “victims.”

United States v. Herrera, 2020 WL 5405679 (9th Cir. Sept. 9, 2020), decision available here.

Players: Decision by Judge Hunsaker, joined by Judge Wardlaw and visiting Sixth Circuit Judge Cook.

Facts: Herrera pleaded open to mail fraud, relating to an unemployment-fraud scheme. Id. at *1. Herrera and his brother, and those who worked for the pair, filed fictitious claims. Id. The California Employment Development Department (“EDD”) paid out money on these fraudulent claims. Id. at *2. At sentencing, and over Herrera’s objection, his guidelines included a three-level bump for leadership role, and a two-level enhancement because there were ten ore more victims of the scheme. Id. at *2 (citing USSG § 2B1.1(b)(2)(A)(i)). Herrera was sentenced to 84 months and appealed.

Issue(s): “[ ] Herrera argues the district court erred by counting EDD as a victim for purposes of the number-of-victims enhancement imposed under § 2B1.1(b)(2)(A)(i). Whether the definition of ‘victim’ under § 2B1.1 includes a state government agency is a question of first impression in this circuit that we review de novo.” Id. at *4. “Thus, the question here is whether the definition of ‘victim’ for § 2B1.1, which does not include government entities in its list of various entities that may be counted as victims, must be interpreted to exclude government entities regardless of whether they suffer loss included in the loss calculation.” Id. at *6.

Held: “ [ ] [W]e hold that state government agencies who suffer losses that are included in the actual loss calculation under § 2B1.1(b)(1) are properly counted as victims for purposes of the number-of-victims enhancement in § 2B1.1(b)(2)(A)(i).” Id. at *8.

Of Note: This is a disappointing decision of first impression. Judge Hunsaker begins the analysis by reporting that “government entities” are not included in the list of entities that constitute “victims” in this guideline. Id. at *6. And she concedes that under “traditional statutory interpretation principles” “all omissions should be understood as exclusions.” Id. (emphasis added).

  And yet, relying on the “presumption of nonexclusive ‘include’” rule of statutory construction (from the Scalia / Garner Reading Law tome), the Ninth ends up concluding that a government entity is a victim under this guideline. Id. at *8.

  Sixty years ago, Professor Karl Llewellyn famously opined that rules of statutory construction are “conclusory explanations appended after the fact to justify results reached on other grounds.” See Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals, 521-35 (Little, Brown, 1960).   Maybe they are, maybe they aren’t, but fair to observe that these rules don’t lead to a particularly obvious result in Herrera.  

How to Use: Herrera also tolerates the imposed leadership-role adjustment in an analysis that merits mulling. James Herrera, and a co-conspirator, Ayala-Mora, were both directed by “Hessiani,” Herrera’s brother. Id. at *4. And Hererra and Ayala-Mora both received equal proceeds from the scheme. Id. Herrera, however, still was hit by a three-level “leadership” bump. Co-equal conspirators are not supposed to get leadership enhancements: the Ninth’s factual discussion of why this three-level bump survives is worth a close read if you have a client who getting nailed with this guideline.                                      

For Further Reading: Senator Mitch McConnell has vowed he will push forward on the conformation of SCOTUS nominee Amy Coney Barrett, despite the recent spate of positive COVID results among Judiciary Committee members. See AP news article here. 

  Much ink has been spilled on Judge Barrett’s views on a woman’s right to choice, on the Second Amendment, and Obamacare. How does the jurist come down on criminal law issues? For an interesting piece on that important question, see Jacob Sullum, SCOTUS Contender Amy Coney Barrett’s Mixed Record in Criminal Cases, available here. 

 

 

 

Image of EDD from https://en.wikipedia.org/wiki/Employment_Development_Department

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

 

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Case o' The Week: Qazi like fox - Qazi and Du Bo Challenges to the Indictment

Du Bo shot with pro se spin earns defense nice Rehaif win.  

United States v. Qazi, 2020 WL 5553323 (9th Cir. Sept. 17, 2020), decision available here.

Players: Decision by Judge Hunsaker, joined by Judge Wardlaw and visiting CJ Cook. Nice win for former CD Cal AFPD Michael Tanaka.

 Facts: Omar Qazi represented himself pro se against felon-in-possession charges. Id. at *1. He filed a pretrial motion seeking dismissal of the indictment, for (among other things) failure to state an element. Id. (He did not identify the missing element.) Id. That motion was denied, he went to trial, and was convicted. Id.

  While his appeal was pending, the Supreme Court decided Rehaif, where “the Supreme Court recognized for the first time that the defendant’s knowledge of his felon status is a required element under Section 922(g).” Id. at *2.

Issue(s): “In this circuit an indictment missing an essential element that is properly challenged before trial must be dismissed. United States v. Du Bo, 186 F.3d 1177, 1179 (9th Cir. 1999). There is no dispute that pro se defendant Omar Qazi’s indictment was missing a required element. The question is whether Qazi properly challenged his indictment pre-trial, thereby triggering the Du Bo rule.” Id. at *1 (emphasis in original).

Held: “Following our well-established obligation to construe pro se filings liberally, we hold that Qazi did properly challenge his indictment, and we direct the district court to dismiss his indictment, as we must.” Id.

 Of Note: Make a proper and timely challenge to deficient indictment in the Ninth, and you get automatic reversal on appeal (with no harmless error hurdles to clear). That rule conflicts with several other circuits, and has prompted some grumbling dissents here in the Ninth. Id. at *2 (reviewing Du Bos, dissents, and concurrences).

  Grizzled Apprendi vets will remember back in the early days of that decision, Du Bo presented a real defense conundrum: challenge a deficient indictment before trial, and the AUSA would just cure a missing element with a quick trip to the grand jury. Wait, however, to bring the indictment challenge at trial, after jeopardy had attached, and your motion would be rejected as untimely.

  Maybe our clients should have fired us, and filed pro se, broad Apprendi motions that complained of missing elements, but did not identify which element was not alleged? Id. at *4 (discussing the possibility that Qazi was in a better position as a pro se litigant than he would have been in had he been represented by counsel).

 How to Use: How specific does a Du Bo pretrial challenge to the indictment have to be? Good question, and one that many defense counsel have wrestled with. Here, Qazi complained the indictment failed to allege “all of the elements of a Federal Crime” – but didn’t specify that the missing element was his knowledge that he was a felon. Id. at *3. That was specific enough – for a pro se litigant. Id. at *4.

  If mulling a Du Bo challenge to a deficient indictment, read the Qazi discussion on specificity. The Qazi pro se challenge may not be quite specific enough for a motion made by counsel, but at least the opinion marks rough boundaries for this requirement.                                             

For Further Reading: Tributes have been pouring in all weekend, on the remarkable legacy of Justice Ruth Bader Ginsburg. Gender equality, choice and reproductive rights, and legendary dissents number among her many legal landmarks. See Ruth Bader Ginsburg’s biggest cases: Equal pay, Bush v. Gore and insider trading, available here.

  What was the Justice’s legacy in criminal law issues? One interesting area is the Sixth Amendment right of Confrontation. Justice Ginsburg famously penned the Bullcoming decision, on the Crawford ramifications of lab reports in criminal cases. See SCOTUS blog here.  

 Justice Ginsburg’s unlikely pal, Justice Scalia, joined her in an exegesis of how prosecutors can still prove their cases, while honoring Confrontation Clause rights, in Part IV of Bullcoming. See decision here. 

 Will the Court’s Crawford coalition maintain a majority when both Justices Scalia and Ginsburg are replaced on SCOTUS? Much depends on the Senate, between now and January 3. 

 

 

Image of “Pro Se” from https://cdn.ca9.uscourts.gov/datastore/opinions/2020/09/17/18-10483.pdf

 

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

 

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