Case o' The Week: Low Marks for Gov't Semantic Gymnastics - Lidia Rodriguez and "Reckless Disregard" Jury Instruction

  Huzzah for the Heartland.

United States v. Lidia Rodriguez (9th Cir. Jan. 30, 2018), decision available here.

Players: Notable decision by the Hon. D.J. Mark Bennett, N.D. Iowa, joined by Judges Kozinski and Friedland. 

  Admirable win for AFPD M. Edith (“Edie”) Cunningham and FPD Jon Sands, Office of the Federal Public Defender, District of Arizona. 

Facts: Lidia Rodriguez, a citizen, was stopped at the border coming into the States: she and her passenger were questioned. Id. at *1. The passenger had a border crossing card, but was allegedly “ill at ease,” wore a new shirt (a purported sign of aliens who changed out of clothes after crossing the desert), and had an empty wallet despite his story that he was coming to the States to shop. Id. at *1-*2. The passenger later admitted in a depo (admitted at trial) that he was an undocumented alien with a false border-crossing card. Id. 

  Rodriguez was tried on a charge of transporting an illegal alien for financial gain. The government sought a “reckless disregard” instruction. Id. at *3. The reckless disregard instruction ultimately given to the jury did not require proof that Rodriguez was aware of the risk (a subjective component). Id. at *4. 

  After an Allen charge, and an alternate juror subbing in, Rodriguez was convicted. Id. at *3.

Issue(s): “Rodriguez seeks reversal of her conviction and remand for a new trial . . . . She contends a jury instruction incorrectly defined ‘reckless disregard.’” Id. at *1.

Held: “We reverse.” Id. 

  “[A] correct definition of ‘reckless disregard,’ consistent with Supreme Court and Ninth Circuit law, would include the defendant’s disregard of a risk of harm of which the defendant is aware.” Id. at *7 (quotations and citations omitted) (emphasis added).

Of Note: Lidia Rodriguez is a terrific decision – both for its legal analysis, and for its holdings. In a careful deconstruction, Judge Bennet surveys the evolution of the “recklessness” mens rea requirement. He parses (and rejects) cases that relied upon in the commentary to the Ninth’s model instruction, and explains why the Eighth, Tenth, and Eleventh have it wrong in light of the Supreme’s 1994 Farmer opinion. Id. at *3-*8. 

  Along the way, the Ninth grumbles that it is “unable to follow or accept the government’s semantic gymnastics” arising from a recklessness definition that didn’t require a subjective awareness of risk. Id. at *6. 

  Rodriguez is now a lead opinion on the “reckless” mens rea standard – it is your starting point in any case where this instruction may loom. (Along these lines, dust off your Rolodex and start calling shrinks. We’ll need mental health experts to address our clients’ (subjective) capacity to appreciate the “risk of harm.” With “subjective” in play for this instruction, our clients’ various impairments become very real and relevant issues).

How to Use: Appellate advocates –read Rodriguez. The Court gives us a very favorable read on the preservation of objections for instructional error, id. at *4, sternly enforces the government’s waiver of its “harmless error” argument, id. at *8, and rejects that damnable “exceptional circumstances” trope that gifts the government a Mulligan on its harmless error whiffs, id. at *9-*11. 

  Our AOB’s will glitter with Rodriguez nuggets.

                                               

Hon. Judge Mark Bennett

For Further Reading: Who is this Hawkeye, this outspoken visiting D.J.? 

  The Honorable District Judge Mark Bennett is a jurist with views. He’s a brave critic of the grave injustices of mandatory minimum sentences. See NPR interview here. 

  He’s a brave visiting judge in the Ninth, cheerfully challenging incorrect majority opinions with dissenting dissertations. See United States v. Leal-Felix, 625 F.3d 1148, 1151 (9th Cir. 2010) (Bennett, D.J., dissenting), rev’d by 665 F.3d 1037 (9th Cir. 2011) (en banc). 

  And perhaps most notably, Judge Bennett is at the forefront of efforts to recognize the reality of implicit bias, and its pervasive impact on our criminal justice system. See, e.g., Judging Implicit Bias: A National Empirical Study of Judicial Stereotypes, available here. 

  Love those heartland values.

Image of “gymnastic fail” from http://www.failepicfail.com/gymnast-fail-gymnast-parallel-bars-epic-fail-229.html

Image of the Honorable Judge Mark W. Bennett from https://herculesandtheumpire.com/tag/judge-mark-bennett/

Steven Kalar, Federal Public Defender Northern District of California

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Case o' The Week: Of teenagers and terrorists - Gardenhire and Guideline "recklessness"

  Q: What possibly could be more stupid than aiming a laser at a plane? 

  A: Aiming a laser at the police helicopter dispatched to find the fool with the laser.

  Stupid, however, does not reckless make. United States v. Gardenhire, 2015 WL 1934493 (9th Cir. Apr. 30, 2015), decision available here.

Players: Decision by Judge Wardlaw, joined by Judges Paez and D.J. Ponsor. Big victory for AFPD Matt Larsen, from the Federal Defender's Office for the Central District of California.

Facts: Gardenhire, an eighteen-year old high school student, pointed a laser at a plane. Id. at *1. It momentarily blinded the pilot, although the pilot was able to safely land the plane. Id. Gardenhire then pointed the laser at a police helicopter dispatched to find the laser. Id. He admitted to police that he had been playing with the laser, that he aimed it towards the aircraft, but that he didn’t see it reach it. Id. He didn’t think about the dangers and said he was simply bored. Id. He was charged with knowingly pointing a laser at an aircraft, and pleaded guilty with a plea agreement. Id. Although the parties jointly recommended referral to the Conviction and Sentence Alternatives (CASA) program (a post-plea diversionary program), the court denied a referral. Id. Instead, the court followed Probation’s recommendation that there be a “recklessness” enhancement, and doubled the offense level to eighteen. Id. The court then went above Probation’s recommended guideline range and imposed a sentence of thirty months of custody. Id. at *2.

Issue(s): “We must decide whether the district court correctly found that Adam Gardenhire recklessly endangered an aircraft within the meaning of U.S.S.G. § 2A5.2(a)(2)(A) when he pointed a laser beam at a Cessna Citation jet, in violation of 18 U.S.C. § 39A.” Id. at *1.

Held: “[T]he district court erred in concluding that Gardenhire acted recklessly when he aimed his laser beam at the aircraft. The record is devoid of evidence, let alone clear and convincing evidence, that Gardenhire was aware of the risk created by his conduct.” Id. at *2. “[T]he district court here made the unsupported leap from deliberate and intentional action to consciousness of risk. In concluding Gardenhire was aware of the risk caused by his actions simply because he deliberately aimed at the aircraft, and purportedly knew the beam could reach the aircraft, the district court significantly and erroneously diluted the mens rea requirement for application of the recklessness enhancement.” Id. at *3.

Of Note: Judge Wardlaw questions the scope of this guideline, that scoops in a teenage prank with serious terrorism offenses and then funnels everything through the amplifying impact of a recklessness enhancement. Id. at *7. The Court drops a heavy hint to the Sentencing Commission that this guideline needs fixing. Id. at *7 & n.6. 

  Of broader interest, Judge Wardlaw reports the huge range the stat maxes for crimes covered by this guideline, and emphasizes that it is thus “particularly important that the government be held to its burden of proof.” Id. A compelling argument -- big guideline impacts for a low stat max case in an overbroad guideline merits a particularly demanding burden for the government. An analysis worth exploring with other guidelines.

How to Use: Ever endure a district judge trying to immunize a harsh sentence from appellate review by threatening an identical Section 3553(a) result if reversed? 

  The Ninth ain’t keen on it, either. 

  Here, the district court denied bail pending appeal, finding no “substantial question,” and indicated it would likely impose the same sentence if reversed. Id. at *6. Judge Wardlaw was unimpressed: “These statements, indicating the district court’s reasoning for denying bail, do not render its procedural error harmless.” Id. Moreover, the Ninth “tak[es] the court at its word” “that it would likely impose the same sentence on remand, regardless of [its] ruling.” Id. The Ninth thus directs the case be reassigned to a different judge on remand. Id. 

  Gardenhire is a potent opinion when confronted by a “belt and suspenders” sentencing judge: not only does this ploy not protect a sentence, but it may earn reassignment on remand as well.

                                               

For Further Reading: Young Gardenhire was only the second person federally prosecuted for pointing a laser beam at a plane. See LA Weekly article here.

FBI image from http://www.fbi.gov/charlotte/press-releases/2014/image/charlotte-laser-strike-campaign-6-12/@@images/38453486-853a-4c72-8fce-af37dbafe6e0.jpeg

Steven Kalar, Federal Public Defender, Northern District of California. Website at www.ndcalfpd.org

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