Case o' The Week: BIA Goes Own Way - Betansos and Plea Bargains for Categorical Analysis "Realistic Probability"

  Let’s Make a Deal (part of the categorical analysis . . .)

Betansos v. Barr, 2019 WL 2896367 (9th Cir. July 5, 2019), decision available here.

Players: Decision by Judge Murguia, joined by Judge Bea and DJ Bastian.   

Facts: The Board of Immigration Appeals (“BIA”) found Betansos ineligible for cancellation of removal. Id. at *2. His previous conviction for indecent exposure, under California Penal Code § 3141(1), was held to be a crime involving moral turpitude (“CIMT.”) Id. at *1.

   In Nunez, the Ninth had previously reversed an unpublished BIA decision on this precise question, holding that this offense was not categorically a CIMT. Id. The BIA, however, revisited the issue in a published decision, Matter of Cortes Medina, 26 I & N. Dec. 79 (BIA 2013). Id. In Cortes Medina, the BIA contradicted the Ninth’s decision in Nunez and found that Cal. Penal Code § 3141(1) was categorically a CIMT – this time offering rationales for its decision.

Issue(s): “We must now decide whether to defer to the BIA’s more recent determination in Cortes Medina that a violation of § 3141(1) categorically constitutes a CIMT. If we defer to Cortes Medina, we must also decide whether we will do so retroactively.” Id.

Held: “[W]e conclude that we must defer to Cortes Medina pursuant to the framework [set forth in the Supreme Court’s decision in Brand X]. We also conclude that Cortes Medina applies retroactively in Betansos’s case. We therefore deny Betansos’s petition for review.” Id. at *2.

   “Reasonable minds can differ when deciding whether certain crimes are morally turpitudinous. Indeed, we did so in Nunez. However, pursuant to Brand X, we must defer to the BIA’s decision in Cortes Medina.” Id. at *8.

Of Note: The nub of this loss is Chevron deference to the BIA’s “categorical” categorization of indecent exposure as a CIMT. Id. at *5. It is a disappointing outcome, and there’s the sense that the Ninth isn’t too keen on the BIA’s determined effort to scoop up this offense as a CIMT.

   Of greater interest to criminal practitioners is Judge Murguia’s very thoughtful concurrence. Id. at *11 (Murguia, J., concurring). She acknowledges that the Supreme Court requires immigration petitioners to show a “realistic probability” that a statute is overbroad in its application and therefore not a categorical match. Id. (citing Duenas-Alvarez). Judge Murguia complains, however, that the BIA’s examples in its decision are decades-old. Id. Why are there so few published decisions to use in a categorical analysis? Because “[t]he vast majority – and nearly all –of criminal cases are resolved through plea bargains.” Id. Plea bargains don’t get published, so the BIA – and the Ninth – have no way to access how broadly a statute is really being used in the real world.

  Judge Murguia ends with a call to action: “Developing a mechanism for considering what conduct prosecutors charge and results in defendants accepting pleas may be particularly helpful in cases such as this one . . . .” Id. at *11.

  An intriguing invitation.

How to Use: Accept Judge Murguia’s invitation! The Taylor categorical goo largely exists because state D.A.’s, legislatures, and judges are too creative and too flexible when scooping in conduct – they (very) broadly interpret state criminal statutes to uphold convictions. Let’s add to that list the “hold your nose and down it goes” plea bargains as examples, when arguing that a state statute is overbroad for a categorical match. 

  Buddy up with your friendly state public defender, and start fishing for transcripts of plea deals illustrating the broad use of Taylor-contested state statutes. Under the Betansos concurrence, those plea transcripts will be welcome exhibits for federal categorical challenges.

                                           

For Further Reading: Judge Jay Bybee has announced that he is taking senior status at the end of this year. See article here. 

  If a nomination and confirmation makes it through, Judge Bybee’s position will be the tenth Ninth spot to be filled by President Trump.

Image of “Let’s Make a Deal” from https://www.auditionsfree.com/2016/lets-make-deal-now-casting-los-angeles-area/.

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

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Case o' The Week: Big To Do, "Related To" - Reinhart and Categorical Analysis of Child Porn Priors

  Ninth delivers a “narrow” defense win.

United States v. Reinhart, 2018 WL 3016942 (9th Cir. June 18, 2018), decision available here.

The Hon. Judge Mary Murguia

Players: Decision by Judge Murguia, joined by Judge Gould and D. Wyoming Chief District Judge Freudenthal.

  Big win for (former, and sorely-missed) ND Cal AFPD Ned Smock (Oakland), (soon to be D. Md. AFPD Ned Smock).  

Facts: Reinhart plead guilty to possession of child porn. Id. at *1. Under 18 USC § 2252(a)(4)(B), a defendant convicted of this offense, who has two priors “relating to” the production, possession, etc. of child porn faces a ten year mandatory minimum sentence. Id.  Reinhardt had been convicted of possession of child porn, Cal. Penal Code § 311.11(a), and sexual exploitation of a child, in violation of Cal. Penal Code § 311.3(a). Id.

  “At sentencing . . . the government argued that the words ‘relating to’ in § 2252(b)(2) should be read broadly to encompass state statutes even if the state statutes of conviction do not categorically match the definition of federal child pornography offenses. Reinhart contended that the usual categorical approach should apply, and under that analysis, Reinhart’s prior California convictions were not a categorical match and were overbroad as compared to the federal definition of child pornography offenses in § 2252(b)(2).” Id. at *2.

  The Honorable ND Cal District Judge Jeffrey White found neither prior qualified as a conviction that triggered the ten-year mand-min. Id. at *1.

Issue(s): “We decide whether Reinhart’s prior California convictions constitute offenses ‘relating to’ child pornography under . . . 2252(b)(2 . . . .” Id. at *1.

  “[W]e must determine whether the words ‘relating to’ in the ten-year mandatory minimum statutory sentencing provision at § 2252(b)(2) require us to break from our usual, elements-based categorical approach for determining when state statutes of conviction trigger a federal sentencing enhancement and instead, apply a broader comparison between the state statutes and the federal statutes. Here, we consider whether Reinhart's prior . . . statutes of conviction fall under the federal definition of ‘child pornography offenses’ as used in § 2252(b)(2).” Id. at *3.

Held: “We affirm.” Id. at *1.

  “The government urges that Sullivan determines the outcome in this case. We disagree. At the outset, we recognize that Sullivan examined the same federal sentencing enhancement statute at issue here, § 2252(b) (2). But § 2252(b)(2) describes a number of prior types of state offenses, some of which include federally-defined terms, and some of which do not. As Sullivan directs, the language of a statute and any related textual restrictions may favor a narrower reading . . . . Accordingly, we look at the different types of offenses listed in separate clauses in § 2252(b)(2) to determine whether a narrower reading of ‘relating to’ and the categorical approach should apply. Here, it does.” Id. at *5.

  “In sum, we hold that [  ] because the terms ‘child pornography’ and ‘sexually explicit conduct,’ are explicitly defined in chapter 110, the statutory text ‘tug[s] ... in favor of a narrower reading’ of ‘relating to.’ . . . . Therefore, we do not depart from the usual, elements-based, categorical approach to determine whether Reinhart's prior state statutes of conviction trigger the federal mandatory minimum provision in § 2252(b)(2) for individuals with prior offenses ‘relating to’ child pornography.” Id. at *7 (emphasis added).

Of Note: This is a terrific decision: a thoughtful analysis untangling the subsections of the relevant statutes, and an intellectually honest approach to emotionally-charged offenses. Judge Murguia notes that in Reinhart the Ninth splits with the Tenth on the reading of “relating to.” Id. at *7.

  This is an interesting twist for the visiting Chief DJ, from Wyoming (which is in the Tenth Circuit). Back home on her own bench, DJ Freudenthal will now have to apply incorrect Tenth Circuit law in her own cases, despite joining the correct outcome here in Reinhart!

How to Use: This holding is a very important limitation on child porn mand-mins. Reinhart merits a careful read for anyone fighting child porn charges, when the client is bringing state priors into federal court.

                                               

For Further Reading: Have you noticed a local increase in child porn prosecutions? Brace yourself: more to come. See Justice Task Forces Arrest 2,300 Online Child Sex Suspects, available here. 

Image of the Honorable Judge Mary Murguia from http://www.mauigmomoratoriumnews.org/hawaiis-legal-battles-gmos-also-affect-mainland/

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

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Case o' The Week: On Dueling Epidemics - Garrison and Brady / Giglio Violations

  What happens when the epidemic of opioid addiction meets the epidemic of  Brady violations?

United States v. Garrison, 2018 WL 1938523 (9th Cir. Apr. 25, 2018), decision available here.

Players: Decision by Judge Gould, joined by Judges Murguia and Chief District Judge Christensen.

Facts: Garrison was a physician’s assistant. Id. at *1. His clinic used “patient recruiters” to bring in homeless people and generate OxyContin. Id. at *2. “Patients” were relieved of pills, and the Oxy sold illegally. Id.

  Garrison went to trial with others charged with a conspiracy to illegally distribute drugs. Id. “Before and during trial, the government made grave mistakes in its prosecution of the case by repeatedly failing to timely disclose information to the defense, as was required by law.” Id. at *3. For example, two government cooperators helped a third witness fabricate a false medical report and submit it to a probation officer and a judge. Though the government knew, it didn’t disclose notes of this conduct to the defense. Id.

  Another violation was a cooperating co-D that was given a “special” deal, that allowed her to continue to work in the medical field. This unusual deal wasn’t disclosed to the defense (or court) even after the cooperator testified on direct. Id.

  The court gave several curative instructions, but denied Garrison’s motion for dismissal. Id. at *4.

  Because of still more problems surrounding JDA breaches, the government dismissed charges against the co-d’s. Garrison was left with a guilty verdict and a 10-year sentence. Id. at *5, *6.  

Issue(s): [Garrison] “contends that because the government repeatedly failed to timely disclose evidence revealing weaknesses in its case, there is ‘little doubt’ that, if that evidence been timely disclosed, Garrison would have been acquitted.” Id. at *6.

Held: “We disagree . . . .” Id. “There is no dispute here that the government failed to comply with the requirements of Brady and Giglio when it disclosed evidence late regarding [the cooperators] falsifying records for [another witness], and failed to timely disclose the side deal with [one of the cooperators]. All of the late disclosed evidence, however, was given to the jury. And the district court gave a jury instruction telling the jury that the government had disclosed evidence late and that the jury could draw adverse inferences from that late disclosure. From the instruction it is clear that the jury was empowered to exonerate Garrison because of the government's misconduct, if it chose to do so. But the jury instead found Garrison guilty. In light of the extensive evidence against Garrison, we cannot conclude that any prejudice stemmed from the late disclosure.” Id.

Of Note: The first paragraphs of Garrison read like a sentencing judge’s rebuke on the dangers of opioids and the responsibilities of medical professionals. Id. at *1. This early exegesis on the “epic crisis of deadly opioid abuse and overuse,” id., means the die is cast: there will be no Brady reversal of this Oxy conviction.

  A troubling decision, Garrison reveals deep, repeated discovery violations in a CD Cal prosecution. Yet there is no outrage expressed; no demand for training or reform.

  Five years ago, five jurists correctly opined: “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.” United States v. Olsen, 737 F.3d 625, 626 (9th Cir. 2013) (dissenting from denial of rehearing en banc).   

  Three of those jurists are now gone. The epidemic, however, remains.

How to Use: Tucked into Garrison is an interesting Joint Defense Agreement (“JDA”) discussion. Id. at *3. Counsel for one defendant in a JDA disclosed protected information to the government. Id. That JDA breach and disclosure was part of the reason for dismissals for two co-Ds. Id.

  This discussion in Garrison is worth a very close read, if you are mulling a JDA (and an even closer read if a JDA participant has breached your deal).

                                               

For Further Reading: A famously enlightened analysis of meaningful pretrial Brady / Giglio obligations is United States v. Sudikoff, 36 F. Supp. 2d 1196, 1198-99 (C.D. Cal. 1999).  Sudikoff tackles our current federal discovery model, that illogically analyzes discovery obligations at trial through a retrospective appellate lens.

  Sudikoff’s author? The Honorable District Judge Dean Pregerson – the presiding judge in Garrison! 

  Read Sudikoff and Garrison together, for a potent and ironic illustration of the depth of our structural discovery problems. In the 1999 Sudikoff case, prescient Judge Pregerson was anticipating the exact problems that now plague the 2018 Garrison case. 

  The answer? Well, here in the Golden State, California Rule of Prof. Conduct 5-110 is a very promising start. Had Garrison been tried after 5-110's effective date, would these discovery violations trigger bar referrals for the AUSAs?

  A plain reading of the rule suggests, "yes."

Image of Oxycontin from https://www.cbsnews.com/news/purdue-oxycontin-maker-to-stop-promoting-drug-to-doctors-amid-opioid-epidemic/

Image of the Honorable Judge Dean Pregerson from http://www.receivers.org/recnews/ArticlePage.php?id=303&keywords= 

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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