Case o' The Week: Ninth cuts him free (on 924(c)) -- Benally and Mens Rea for "Crimes of Violence"

Hon. Judge Noonan

The Ninth's not buffaloed, Springfield. United States v. Benally, 2016 WL 4073316 (9th Cir. Aug. 1, 2016), decision available here.

Players: Decision by Judge Noonan, joined by Judges D.W. Nelson and O’Scannlain. Big win by D. Arizona AFPD Dan Kaplan.

Facts: Benally was convicted of a § 924(c) charge, with a federal involuntary manslaughter (18 USC § 1112) as the underlying “crime of violence.” Id. at *1.

Issue(s): “Joe Arviso Benally appeals a jury conviction for involuntary manslaughter under 18 U.S.C. §§ 1112 and 1153 and for using a firearm in connection with a “crime of violence” under 18 U.S.C. § 924(c).” Id. at *1.

Held: “We hold that involuntary manslaughter is not a ‘crime of violence’ and reverse the § 924(c) count of conviction.” Id. at *1. “After Leocal and Fernandez–Ruiz, a ‘crime of violence’ requires a mental state higher than recklessness—it requires intentional conduct. See Covarrubias Teposte, 632 F.3d at 1053 (“The effect of our holdings is that in order to be a predicate offense under either 18 U.S.C. § 16 approach, the underlying offense must require proof of an intentional use of force or a substantial risk that force will be intentionally used during its commission.” (quoting United States v. Gomez–Leon, 545 F.3d 777, 787 (9th Cir. 2008))). Involuntary manslaughter under § 1112, requiring a lesser mental state of “gross negligence,” prohibits conduct that cannot be considered a “crime of violence” under § 924(c)(3). Under the categorical approach, therefore, involuntary manslaughter cannot be a “crime of violence.” Springfield’s opposing rule is clearly irreconcilable with the reasoning and results of Leocal and Fernandez–Ruiz and is no longer good law. Benally's § 924(c) count of conviction for using a firearm in connection with a ‘crime of violence” is REVERSED.’ Id. at *4.

Of Note: In a dusty old decision, the Ninth had held that involuntary manslaughter under § 1112 was a crime of violence, concluding that “gross negligence” was sufficient mens rea for a c.o.v. United States v. Springfield, 829 F.2d 860 (9th Cir. 1987). Here, a mere three-judge panel concludes that Springfield is no longer good law – no en banc court involved. This welcome result is courtesy of our friend, Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (en banc): a case that allows a three-judge panel to determine that Ninth caselaw is “effectively overruled” by intervening higher authority (in this case, the intervening authority was Leocal and Fernandez-Ruiz).

  For Johnson warriors, Miller v. Gammie is the broom three-judge panels will use to sweep out cobwebbed Ninth law. Judge Noonan’s analysis is a clear and helpful guide for that housekeeping. See Benally at *3.

How to Use: This tip seems self-evident, but because the government is throwing everything against the Johnson barn door it is worthwhile to point it out. Neither Leocal or Fernandez-Ruiz discuss the mens rea necessary to commit a “crime of violence” for § 924(c). Instead, those cases interpret the “crime of violence” mens rea for 18 USC § 16. Judge Noonan undertakes the common sense analysis in Benally: “because the wording of the two statutes is virtually identical, we interpret their plain language in the same manner.” Id. at *3 (footnote omitted). Benally teaches that Johnson is the hammer: the whole USC and USSG look like nails.

                                       

For Further Reading: In a bevy of briefs urging Johnson stays, the government has told district courts that they should look to the Ninth’s Jacob and Gardner stayed SOS cases.

  We agree: that brace of cases is critical to the stay analysis.

  On August 1, the Ninth Circuit lifted the stays on both of these cases, over briefed government objection, and sent them both to the district court to get them resolved. See Jacob v. United States, No. 15-73302 (9th Cir. Aug. 1, 2016) (Ord.), Gardner v. United States, No. 15-72559, No. 15-73302 (9th Cir. Aug. 1, 2016) (Ord.).

  Folks are incarcerated, overserving illegal sentences, and deserve their day in court: let’s get this litigation rolling. See United States v. Castilleja, 2016 WL 3024108 (E.D. Wa. May 5, 2016) (Ord. denying stay).

Image of the Honorable Judge Noonan from https://www.flickr.com/photos/cmichel67/8964238814  (Incidentally, photographer Christopher Michel’s excellent series of photos of Judge Noonan highly commended http://www.christophermichel.com/People/Judge-John-Noonan/ )

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

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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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