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

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Case o' The Week: Ask, "W.W.W.D?" (What Would Warren Do?) -- Chapman and Section 111 Offenses

As we mourn the passing of Ninth Circuit Judge Warren Ferguson (left), one of his younger colleagues (Judge Kim Wardlaw, right) continues his admirable legacy by holding the government to the full proof requirements of Section 111. See United States v. Chapman, __ F.3d __, 2008 WL 2485566 (9th Cir. June 23, 2008), decision available here.


Players: Great win by San Diego Assistant Federal Defender Steven Barth.

Facts: Chapman allegedly “cut in line” at a border checkpoint. Id. at *1. Border agents stopped him, told him to move out of line, and when he refused, tried to physically “escort” him out of line. Id. Chapman “tensed up,” and “took a rigid stance” when the agents tried to cuff him. Id. An agent struck him in the thigh with a baton. Chapman told the agent, “hit me again,” the agent did so “to no effect” – so the agent pepper sprayed him and cuffed him. Id. (Ed. note: All this for (allegedly) cutting in line?)

Chapman didn’t attempt to strike the agent or use profanity. Id. Chapman was charged with 18 USC § 111(a), “resisting and impeding” a federal officer. Id. He was convicted at a bench trial of a misdemeanor; the court denied the motion for acquittal. Id. at *2.

Issue(s): Is an “assault” “required for a § 111 conviction?” Id. at *5.

Held: “[W]e . . . hold, as suggested by the majority of our sister circuits, that convictions under this statute require at least some form of assault. Section 111(a) creates two distinct offenses, a misdemeanor and a felony, and Congress has distinguished between these two offenses using language that is only meaningful when describing assaults.” Id. at *5. “Because § 111(a) allows misdemeanor convictions only where the acts constitute simple assault, and because Chapman’s nonviolent civil disobedience did not constitute a simple assault, we reverse and vacate the judgment of conviction.” Id. at *1.

Of Note: Districts with federal parks, recreation areas, military bases and reservations see a fair share of Section 111 prosecutions. Like Section 1326 cases, this opinion illustrates that a simple crime – a Section 111 offense – can raise extraordinarily complicated legal issues.

Judge Wardlaw’s analysis wasn’t made any easier by the Section 111 statute itself, which was “inartfully drafted,” id. at *3, or authority from other circuits that was “hardly a model of clarity,” id. at *5. In a thoughtful opinion Judge Wardlaw cuts through this confusion and creates a simple rule: a misdemeanor Section111 conviction requires a simple assault – not merely resisting arrest, and not merely disobeying orders. (An assault is “either a willful attempt to inflict injury upon the person of another, or . . . a threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm.” Id. at *4.)

How to Use: The good news is, we’ve been arguing Wardlaw’s new rule for years in § 111 cases. The bad news is, Chapman deals with an old version of the statute. A new, amended version became effective January 7, 2008. See id. at *1 & n.2.

The amendment changes the penalty subsection of § 111(a), which defines what constitutes a felony offense under the statute. See “Court Security Improvement Act of 2007,” PL 110-177, 2008 HR 660 (2007). While Chapman analyzed the old statute, nothing in the amended ‘08 version seems to affect the decision’s holding that a misdemeanor § 111 offense requires simple assault.

For Further Reading: As noted above, Judge Warren Ferguson died last week, at the age of 87. He was elevated from the C.D. Cal. bench by Carter in ‘79, and took senior status in ‘86. He served in the Army, in North Africa and Italy in WWII. He lost his son, Jack, during Vietnam.

Judge Ferguson actively sought clerks who were committed to “social justice.” His opinions reflected his passion for justice: in Chase, he strongly championed the right of an indigent defendant to retain an expert. In Luong, he rejected the government’s attempt to hide behind the good faith exception to salvage a warrant lacking in probable cause. In Snellenberger, he refused to allow criminal minutes and abstracts of judgment as fodder for the “modified categorical” sentencing analysis. In his compelling Clark dissent he warned,

The Constitution cannot be interpreted according to the principle that the end justifies the means. The sexual abuse of children abroad is despicable, but we should not, and need not, refashion our Constitution to address it.

Ferguson was a great judge and a great champion for the poor, for minorities, and for the oppressed. He will be sorely missed.

Above image of Judge Warren Ferguson from Cal Law, here.

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



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