Case o' The Week: Ninth Says (No Need to) "Show Me the Money" -- Mobley and Fed J/X for Sec. 2114 Robbery

The good news? This terrific quote:

Existing federal criminal laws don't cover the subject, and it is an important norm of the criminal process that federal courts do not bend the statutes on the books to criminalize acts just because of a belief that they ought to be forbidden.

The bad news? That quote is from an Easterbrook decision – and a decision from which the Ninth has decided to split.

Hon. Judge Easterbrook

United States v. Mobley, 2015 WL 5973318, *4 (9th Cir. Oct. 15, 2015), decision available here, disagreeing with United States v. Salgado, 519 F.3d 411, 415 (7th Cir.) on reh'g in part sub nom. United States v. Pacheco-Gonzales, 273 F. App'x 556 (7th Cir. 2008) (Easterbook, Chief Judge).

Players: Decision by Judge Watford, joined by Judges Callahan and M. Smith. Hard fought-appeal by ND Cal CJA Counsel Mary Pougiales, appeal from ND Cal D.J. Gonzalez Rogers.

Facts: ATF set up a buy of a grenade launcher. Id. Mobley and co-D’s met with Cooperator McGrew, and ATF Agent Palmer. Id. Mobley, McGrew, and co-D Hucherson got into a car driven by Agent Palmer. Id. In the light most favorable to the government, Mobley then pulled a TEC-9, leaned forward from the back seat, and pointed the gun at Agent Palmer’s head. Id. Hucherson did the same. Id. Either Mobley or Hucherson shouted, “Where’s the money at?” Mobley twice demanded that Agent Palmer empty his pockets. Id. Officers eventually wrested the gun away. Id. Everyone but Mobley pled: he went to trial and was convicted. Id.

Issue(s): “Mobley attacks the sufficiency of the evidence supporting the robbery conviction under 18 U.S.C. § 2114(a). That statute provides, in relevant part: ‘A person who assaults any person having lawful charge, control, or custody of any mail matter or of any money or other property of the United States, with intent to rob, steal, or purloin such mail matter, money, or other property of the United States, [shall be guilty of a crime].’ (Emphasis added.) Mobley contends that the government did not introduce sufficient proof that Agent Palmer actually had the buy money in his ‘charge, control, or custody’ at the time Mobley assaulted him.” Id. at *2 (emphasis in opinion).

Held: “Mobley is wrong. Agent Palmer testified that he brought $2,000 in ATF funds with him to the deal, which he intended to use to buy the grenade launcher and any other weapons the defendants might have offered. Contrary to Mobley's argument, the fact that Agent Palmer never ‘showed’ the buy money during the transaction is of no consequence. It was enough for the government to prove that Agent Palmer had the ATF funds on his person, even if he never let Mobley see the money. Agent Palmer's uncontradicted testimony that he had the ATF funds in his custody provided ample evidence from which a rational jury could conclude that this element of the statute was satisfied.”

Of Note: Mobley was convicted of § 924(c)(1)(A), brandishing a firearm in furtherance of a crime of violence. Id. at *1. 

Which crime of violence?  The jury instructions here deemed both offenses to be crimes of violence in the Section 924 instruction -- but that was before Johnson.

After the Supremes trashed the residual clause of § 924(e)(2)(B) in Johnson, is there a constitutionally-valid crime-of-violence definition in § 924(c)(3)(A) that includes the charges here? “Assault on a federal officer”  may be problematic: the jury instructions here allowed a conviction for Section 111(b) if Mobley "intentionally threat[ened] another coupled with an apparent ability to inflict injury on another which causes a reasonable apprehension of immediate bodily harm."

Is that enough for the § 924(c)(3)(A) definition, deeming a crime of violence an offense with the "threatened use of physical force against the person or property of another?" Can § 111(b) be satisfied with a threat that falls short of the § 924(c) definition? 

Even the mail robbery statute (§ 2114(a)) may be vulnerable under a fair reading of the 924(c)(3)(A) “force” requirement. See Rodriguez, 925 F.2d 1049 (7th Cir. 1991) (pulling postman’s key chain enough). 

Perhaps Johnson habeas relief awaits Mr. Mobley?

How to Use: Agent Palmer was a fed, and had money on his person that belonged to the US. Robbing him violates § 2114(a). Id. at *4. But Mobley argued he meant to steal from snitch McGrew, not Agent Palmer – and Mobley certainly didn’t know that Palmer had federal funds. 

The Ninth is not convinced. 

In what appears to be a Ninth decision of first impression, Judge Watford holds that a defendant doesn’t need to know the federal nature of money targeted, to be guilty of § 2114(a) robbery. Id. at *4. 

Seems like the Ninth now splits with Judge Easterbrook's contrary take in the Seventh. Salgado, 519 F.3d 411, 475 (7th Cir. 2008) (“If the DEA wants to make sure that the robbery or attempted robbery of an informant can be prosecuted in federal court, it should issue a shiny dollar coin to everyone involved in a drug transaction.”) Judge Easterbrook has the better argument: seek cert. on this circuit split, for Ninth convictions on this theory.

                                               

For Further Reading: Does it seem like Johnson pervades everything – the whole tangled skein of crime of violence definitions enmeshed in the federal code? It does. For a useful article on Johnson in the immigration context, see here.

Image of the Honorable (former) Chief Judge Easterbrook from http://www.law.uchicago.edu/files/imagecache/sidebar-image/image/Easterbrook%20-%20color.jpg

Image of silver dollar from https://upload.wikimedia.org/wikipedia/commons/1/1a/2006_AESilver_Proof_Obv.png

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

.

Case o' The Week: Left, Right, and Scienter -- Castagana and Mens Rea in Threats Statute

What do Jon Stewart and the Honorable Speaker of the House Nancy Pelosi have in common? One thing they'd rather not have shared: they both were the recipients of "threat" letters containing white powder from a mentally-ill defendant, Chad Conrad Castagana. Unfortunately, his prosecution results in an opinion that is another blow to meaningful mens rea standards in federal criminal statutes. United States v. Castagana, __ F.3d __, 2010 WL 1930231 (9th Cir. May 14, 2010), decision available here.

Players: Hard-fought appeal by CD Cal AFPD Elizabeth Newman.

Facts: Castagana sent fourteen letters containing threatening notes and a white powder (a soap mixture). Id. at *1. These letters were sent to comedians like Jon Stewart and Letterman, politicians like Nancy Pelosi, and others. Id. “The letters threatened their recipients and expressed hostility to their assumed left-wing political views.” Id. at *1.

He was charged with a violation of the federal threats, or “hoax” statute: 18 USC § 1038(a)(1). Id. At trial, “Castagana defended on the ground that his mental disorders prevented him from forming the intent required for a violation of § 1038(a)(1). He introduced evidence of a long history of a severe mental condition.” Id. at *2. Castagana sought an instruction “that required the government, in order to convict, to prove that Castagana intended his targets, as reasonable persons, to believe that the envelopes contained anthrax.” Id.

The instruction was denied; Castagana, convicted. Id.

Issue(s): “On appeal, Castagana challenges the district court’s rejection of his requested jury instruction, which would have required the jury, in order to convict, to find that he specifically intended the recipients of his letters reasonably to believe that they contained anthrax.” Id. at *1.

Held: “We conclude that § 1038(a)(1) contains no such specific intent element, and we accordingly affirm Castagana’s conviction.” Id.

Of Note: Castagana is a heavy statutory interpretation case, and as such, is arguably limited to the uniquely broad language of this threats statute. Unfortunately, the real sting of Castagana is Judge Canby’s refusal to “read the scienter requirement to each of the statutory elements that criminalize otherwise innocent conduct.” Id. at *3 (discussing X-Citement Video). Future mens rea fights will have to distinguish Castagana, arguing that this hoax statute only escaped X-Citement Video’s higher scienter requirements because its language was unambiguous.

How to Use: Judge Canby dodges a First Amendment attack by finding that the issue was waived for failure to bring it in the district or appellate court. Id. at *5. Hence, that very interesting constitutional challenge survives. An issue for a future threats case is whether a “proscription of expressive conduct or speech was a violation of the First Amendment in the absence of a requirement of intent to intimidate, which intent would render their conduct or speech an unprotected threat.” Id. at *5.

(It is a wonderful irony that some federal Public Defender will almost certainly be the lead champion of the sacred First Amendment right to harshly criticize liberals, in a future case that involves a mentally-ill client threatening “left-wing” politicians).

For Further Reading: What do the (conservative) Heritage Foundation and the (liberal) National Association of Criminal Defense Lawyers have in common? Well, among other things, they share a healthy distrust of government and an unshakable belief in individual rights.

The latest illustration of their common views is a thought-provoking study by Brian Walsh and Tiffany Joslyn: “Without Intent: How Congress is Eroding the Criminal Intent Requirement in Federal Law,” available here . This report is an exhaustive analysis of the devolution of the mens rea requirement in federal criminal statutes.

Read this May 5th report alongside Castagana’s recital of the legislative history of the threats statute (and Congress’s rejection of a real mens rea requirement in 1038(a)(1)), for very recent proof of a legislative trend that both conservatives and liberals agree is disturbing.


Image of Jon Stewart from http://topazbean.files.wordpress.com/2009/08/jon-stewart.jpg . Image of the Honorable Representative Nancy Pelosi from http://i.timeinc.net/time/photoessays/2008/nancy_pelosi/pelosi_01.jpg



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


.