Case o' The Week: Miranda Lives Another Day, Booking Exception by the Bay - Williams and Miranda Requirements

 Book ‘em, Danno

   (but Mirandize ‘em, too).

United States v. Alfonzo Williams, 2016 WL 7046754 (9th Cir. Dec. 5, 2016), decision available here.

Players: Decision by Judge Hurwitz, joined by Judge Rawlinson. Dissent by Judge Kleinfeld. 

 Admirable win for NorCal CJA stalwart Mark Goldrosen. 

  Decision affirming suppression order by the Hon. District Judge William Orrick III.  

Facts: Gilton invoked when arrested for murder. Id. *1. Hours later he was booked into a local jail: without Mirandizing Gilton, a sheriff’s deputy asked him whether he was associated with a gang. Id. Gilton’s affirmative(ish) answer was entered onto jail housing forms. Id. Years later, AUSAs tried to introduce Gilton’s response in a RICO trial. Id. District Judge Orrick granted a defense motion to suppress the statement, holding that the likely incriminating nature of answer to this question took it out of the booking exception to Miranda. Id. at *2.  

Issue(s): “The government seeks to introduce Gilton's responses to that questioning in its case-in-chief to establish ‘membership in an enterprise,’ an element of the RICO offense for which he is charged. 18 U.S.C. § 1962(c), (d).” Id. at *1.

Held: “When the deputy asked Gilton about his gang membership, he had already been arrested on charges of murder, conspiracy to commit murder, discharge of a firearm at an occupied motor vehicle, and possession of a firearm by a felon. Questions about Gilton’s gang affiliation were thus reasonably likely to elicit an incriminating response, even if the federal RICO charges had not yet been filed.” Id. at *3. 

  “[W]e hold only that when a defendant charged with murder invokes his Miranda rights, the government may not in its case-in-chief admit evidence of the prisoner’s unadmonished responses to questions about his gang affiliation.” Id. at *5.

Of Note: The jail intake deputy, the government argued, had no idea that this “gang” question was going to be important to a later federal RICO prosecution. 

  Doesn’t matter, explains the Ninth – this is an objective inquiry, not subjective.  “The government's assertion that such questions are posed routinely, and that the deputy asked the questions for a non-investigatory purpose, does not alter our conclusion. ‘The test is an objective one, however, and thus the subjective intent of the police, while relevant, is not conclusive.” . . . And, the objective inquiry is simple: Under the circumstances, are questions about gang affiliation reasonably likely to produce an incriminating response? In a case involving Medicare fraud, they are not. But when murder is the charge, the questions—even if asked for administrative purposes—are reasonably likely to elicit incriminating information.” Id. at *4.

How to Use: Great outcome in a hotly-contested San Francico case. Beware, however, of the pains Judge Hurwitz takes to limit this holding. Id. at *5 (discussing what the Court “do[es] not hold].” Jail staff can ask about gang affiliation, without Mirandizing inmates – the answer just can’t be used in a murder case where gang affiliation is in play. Id. 

  Note, however, the logical extensions of this holding: the Court rattles off a laundry list of the nasty ramifications of gang affiliation in federal court. Id. at *3 (a list worth a clip into your research files). In any of those scenarios, where “[g]ang membership . . . expose[s] a defendant to federal criminal liability,” the Williams’ Miranda holding on gang questioning at booking should apply.

                                               

For Further Reading: You lost in the fog of the layers of Miranda exceptions? You’re in good company: the circuits are split on how to tackle this question of the “booking” exception to Miranda’s limits. For an interesting discussion of the split, and the subjective / objective debate over booking interrogations, see George C. Thomas III, Lost in the Fog of Miranda, 64 HASTINGS L.J. 1501 (2013), available here. 

Hawaii Five-O image from http://images2.fanpop.com/images/photos/2800000/Hawaii-Five-O-Book-em-Danno-classic-television-revisited-2846837-358-293.jpg

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

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Case o' The Week: Seventeen will get you Twenty - Camez and juvenile offenses as substantive federal crimes

Years of federal sentence: twenty.

Age at time of offense: seventeen.

  Troubling math from the Ninth.

 United States v. Camez, 2016 WL 6068195 (9th Cir. Oct. 17, 2016), decision available here.

Players: Decision by Judge Graber, joined by Judge McKeown and District Judge Peterson.

Facts: Camez went to trial on RICO counterfeit card and ID charges. Id. at *1. The jury was instructed that it could not convict Camez solely on conduct that took place before his eighteenth birthday. Id. Over defense objection, however, the jury was instructed that it could “consider Defendant’s pre-majority conduct as proof of the substantive crimes.” Id. 

  Recall that substantive RICO counts require a pattern of racketeering activity -- specifically, conviction on at least two predicate acts. Id.at *2 (discussing 18 U.S.C. § 1962(c)).

  In a special verdict form, the jury convicted Camez of one predicate for conduct before he was 18, a second allegation for conduct after he was 18, and acquitted him on a third post-18 allegation. Id.

Issue(s): “Defendant argues that the Juvenile Delinquency Act (‘JDA’) prohibits consideration of his pre-majority conduct as proof of the substantive crimes.” Id. 
  “[F]or continuing crimes alleged to have occurred before and after the defendant turned 18, the statute provides no clear answer to the question whether the JDA applies. We face that situation here, because Defendant was 20 at the time of the indictment and because the government alleged that he committed the crime when he was both 17 and 18.” Id. at *2. 
  “[Defendant] argues . . . . that the JDA implicitly forbids a jury from considering any of his pre-majority conduct as substantive proof of the crime.” Id. at *3.

Held: “[W]e hold that the district court’s instruction, which comported with the law of most circuits that have addressed this issue, was not erroneous. Accordingly, we affirm the judgment.” Id. at *1.

Of Note: In this case of first impression, the Ninth parts ways with the D.C. Circuit. Id. at *3. Unfortunately, DC had it right: that circuit has held that a “conviction that rests in whole or in part on acts committed as a juvenile is invalid.” Id. at *3 (internal quotations and citation omitted).  

  Camez bucks the national policy trend. Neuroscience is confirming what all parents know: juvenile brains are hired-wired differently. In 2012 the Supreme Court’s decision in Miller v. Alabama considered this science and kick-started the trend of more progressive juvenile sentencing laws. See article here. 

  The Sentencing Commission has also signaled that is aware of this new science – a current priority is the “Study of the treatment of youthful offenders under the Guidelines Manual.” See List of Commission Priorities here.

  There’s a growing circuit split on whether the JDA permits conviction on pre-majority conduct. Hopefully a full Supreme Court will soon revisit the issue of juvenile justice, and continue its Miller line.

How to Use: Juvi conduct can now support federal convictions in the Ninth. Are there limits?

  The First Circuit says, “yes:” a jury has to find that continuing conduct went past the defendant’s 18th birthday. Id. at *4.

  The Eleventh requires the government to introduce sufficient evidence that the defendant’s crimes spanned 18. Id.

  The Second just requires a court to look at the defendant’s age at the time of the offense charged in the indictment – there’s no additional evidentiary burden. Id. at *5.

  What approach did the Ninth adopt? “We need not – and do not – determine which of those approaches is correct.” Id.

  Though Judge Graber throws some dicta love towards the Second Circuit approach, how the court approaches juvenile convictions remains a very live issue in the Ninth.

  Short answer: fight for the First Circuit's approach in Welch – that circuit’s law “is the most restrictive of the various approaches.” Id. at *4.

                                               

For Further Reading: Under federal law, juvi brain science impacts punishment. It also bears upon the Miranda “reasonableness” analysis. 

  Why aren’t substantive offenses viewed with the same modern scientific lens? So asks Professor Jenny Carroll, in her compelling article: Brain Science and the Theory of Juvenile Mens Rea, 94 N. Carolina L. Rev. 539 (2016), available here.

Image of child in handcuffs from http://www.criminalattorneyinaustin.com/wp-content/uploads/2013/04/juvenile.jpg

Image of brain development from http://clbb.mgh.harvard.edu/wp-content/uploads/adolescentbraindev2-731x217.jpg 

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

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Case o' The Week: Bank Bureaucrats and Baccarat -- Xu, RICO and Foreign Relevant Conduct

Chao Fan Xu

 Hard to imagine two victims with less of a sense of humor, to target for a fraud scam: the People’s Republic of China, and casinos.

  

  Chao Fan Xu hit ‘em both.

   United States v. Xu, 2013 WL 28392 (9th Cir. Jan. 3, 2013), decision available here.

Players: Decision by Judge Goodwin, joined by Judges Reinhardt and Murguia.

Facts: Xu, and three other Chinese nationals, “stole as much money as possible from the Bank of China; transferred the stolen funds out of the Bank of China; escaped, through immigration fraud, to a safe harbor in the United States; and then spent the funds in, among other places, Las Vegas casinos.” Id. at *3.

 (Almost half a billion dollars, in total loss). 

  The defendants gambled with a big chunk of the money, playing baccarat in Macao, Australia, Malaysia, the Philippines and Las Vegas. Id. at *2. There were basically two steps in the scheme: massive Chinese bank fraud, followed by the U.S. immigration fraud, money laundering, and conspiracies. After the Chinese government discovered the bank fraud, the defendants were arrested, tried, and convicted in the U.S. of RICO allegations, conspiracy, money laundering, and immigration fraud. Id. at *2-*3.

Issue(s): “Defendants argue that their count one convictions are invalid because the charged conspiracy was extraterritorial and outside the reach of RICO.” Id. at *3.

Held: “We affirm Defendant’s count one conviction because the convictions are not based on an improper extraterritorial application of RICO, but rather are based on a pattern of racketeering activities that were conducted by the Defendants in the territorial United States.” Id. at *8.

Of Note: In Morrison v. Nat’l Australia Bank Ltd., the Supremes rejected extraterritorial application of the Securities Exchange Act. Id. at *3. After Morrison, it has been an unsettled question whether RICO applies to extraterritorial schemes. Id. 

In Xu, Judge Goodwin holds for the first time in the Ninth that RICO can apply to extraterritorial schemes, if there was a “pattern of racketeering activities” within the United States. Id. at *6-*7. Xu is an important and dangerous expansion of RICO’s scope. Anticipate much litigation on what “pattern of racketeering activities” means: seems a fact-bound inquiry, and it is still unclear how extensive a domestic “pattern” must exist to trigger RICO exposure.  

How to Use: Xu lost the RICO battle but won big in the sentencing war. In another important holding of first impression, Judge Goodwin holds that it is procedural error at sentencing to rely on relevant conduct from foreign crimes in the guideline analysis. Id. at *20-*21. With roughly $482 million in Chinese fraud in Xu, that holding should shave off an offense level or two on remand! Any limitation on the hated guideline relevant conduct rules is a defense win: remember Xu if faced with relevant conduct generated from foreign crimes. (Query whether we can expand Xu’s relevant conduct limitation in international drug and smuggling cases?).

                                               

For Further Reading: On Monday Jan. 7, the Supreme Court will hear argument on Decamps – an important case on the Taylor modified categorical analysis. In the en banc Aguila Montes de Oca (AMdO) opinion, the Ninth took a (largely unintelligible) stab at the Decamps issue: how to deal with a state prior conviction that is missing an element of a generic federal offense. The Supremes will consider AMdO in the guise of review of the unpublished Decamps mem dispo., and the outcome could have a huge impact on federal sentencing. 

 For a particularly thoughtful description of the Decamp contretemps (and musings on the much bigger Apprendi issues at stake), see "When is a burglary a 'burglary'? here.    

Baccarat image from http://www.baccaratstrategy.info/gfx/baccarat.jpg   Image of Chao Fan Xu from http://www.chinadaily.com.cn/china/2008-09/02/content_6988048.htm

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

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