Case o' The Week: Better Late than Never - Aguilera-Rios and Waiver of Fed. R. Crim. Pro. 12(b)(3) arguments

   Should a defendant be convicted for illegal reentry, when he actually had a legal right to be in the States and not be removed?

  The government things so.

  The Ninth, happily, does not.

United States v. Aguilera-Rios, 2014 WL 4800292 (9th Cir. Sept. 23, 2014), Ord. & Amend. Opinion, decision available here.

The Hon. Judge Marsha Berzon

Players: Decision by Judge Berzon, joined by Judge Pregerson and visiting Judge Murphy. Big win for Ass’t Federal Defender Kara Hartzler, Federal Defenders of San Diego, Inc.  

Facts: Aguilera-Rios was a LPR convicted of Cal. Penal Code § 120121(c)(1). Id. at *1. He appeared before an IJ, who found him “subject to removal as charged.” Aguilera-Rios was then removed to Mexico. Id. He was later charged with attempted entry after deportation. Id. He moved to dismiss the indictment, challenging the earlier removal proceedings. Id. That motion was denied, he was convicted, sentenced, and removed. Id. After the defense filed the opening brief on appeal, the Supreme Court decided Moncrieffe v. Holder, 133 S.Ct. 1678 (2013). Id. In Moncrieffe, the Court addressed a government argument and opined that a gun law that lacks an antique weapons exception will be deemed to fail the categorical inquiry. Id. Aguilera then successfully moved the Ninth to file a substitute brief. Id.

Issue(s): “[Aguilera] contends that his prior removal order was invalid because his conviction under Cal. Penal Code § 120121(c)(1) was not a categorical match for the . . .  INA firearms offense [because it lacked an antique firearm exception].” Id.

Held: “We agree that he was not originally removable as charged, and so could not be convicted of illegal reentry. We therefore reverse the judgment of conviction.” Id.

Of Note: The core substantive holding of Aguilera-Rios is that these types of California gun convictions are not a categorical match for the federal firearms ground of removal. Id. at *6. To get there, however, Judge Berzon must negotiate several government beefs. One holding of particular note rejects the government’s complaint that the defense didn’t raise the Moncrieffe argument in the district court (before Moncrieffe was decided!) Id. at *2-*3. In what looks like a rule of first impression, the Ninth holds that a change in intervening law can constitute good cause to avoid a waiver of an argument under Federal Rule of Criminal Procedure 12(b)(3). Id. at *2-*3. That’s a very handy concept, so here it is again: it can be “good cause” to avoid waiver of an argument on appeal, when that argument was not raised in the district court under Rule 12(b)(3), if there was an intervening change in law.

How to Use: Aguilera-Rios is not all peaches and cream – it merits a close read, for its illegal reentry holdings. Judge Berzon spends much time distinguishing previous Circuit decisions that had held a change of law was not retroactive when considering an IJ’s duty to advice of discretionary relief. Id. at *4-*5. However, she also seems to veer from district court decisions that had held that any post-removal substantive interpretation of crime of violence or the aggravated felony provision is fully retroactive on collateral review. Id. at *4 (collecting DJ decisions). It is a nuanced holding that needs close analysis before citing for broad propositions.

                                               

For Further Reading: On October 1, 2014, S.F. Magistrate Judge Maria-Elena James ordered disclosure of techniques used by the government to track an individual’s location through triggerfish or stingray devices. See article here. Her order on this ACLU FOIA litigation can be found here. 

  As Judge James frames it, “The issue in this case is whether the EOUSA properly withheld templates and certain pages of a power point presentation as attorney work product under Exemption (b)(5), and whether the Criminal Division properly withheld memoranda and records maintained on a DOJ intranet site pursuant to Exemption 5, (attorney work product) and 7(E) (release would risk circumvention of the law).” Id. at pg. 7. 

  The Fourth Amendment ramifications of cell tracking are squarely in our litigation cross-hairs: look for these FOIA docs from the ACLU’s righteous litigation in support of these efforts.

Image of the Hon. Judge Berzon from https://farm4.staticflickr.com/3873/14175109939_e8367fbe59_b.jpg Image of the Honorable Magistrate Judge Maria Elena James from http://www.cand.uscourts.gov/assets/images/judges/Magistrate_Judge_Maria-Elen.jpg

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

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Case o' The Week: "Must Be Lying" Must Be Error (But Harmless!) - Ruiz and Closing Arguments

Not content to merely allude to improper arguments, an AUSA emphasizes them in a Powerpoint presentation during closing.  The result? “Sadly condoned by the incantation: “harmless error review.”  United States v. Ruiz, 2013 WL 1197945 (9th Cir. Mar. 26, 2013) (Pregerson, J., concurring), decision available here.

Players: Decision by Judge Paez. Reluctant concurrence by Judge Pregerson. Hard-fought appeal by CD Cal AFPD Brianna Fuller.

Facts: Sisters Diana and Daisy called the police about a man they later identified as Raymond Ruiz: he was holding a shotgun, mumbling, and walking down a street. Id. at *1. Five minutes after their call, cops in a helicopter saw a man run behind a house and throw a shoe box-sized item over a fence into a vacant lot. Id. Another cop arrived and found a box in the lot with 12-gauge shotgun shells. Id. Yet another officer found Ruiz, trying to get into the house. Id. A 12-gauge shotgun was discovered an arm’s length from Ruiz. Id. At trial the prosecutor used Powerpoint slides – over defense objection – that insisted the jury could only find Ruiz not guilty if the jury found that the officers “lied to you.” Id. at *3.

                                                            

Issue(s): “At the heart of Ruiz’s argument is his contention that the prosecutor’s statement presented the jury with a false choice between his and the officers’ accounts, since the officers could have testified honestly, but nonetheless mistakenly perceived the events on the night in question. This false choice, he asserts, improperly shifted the burden of proof to the defense.” Id. at *3.

Held: “[P]rosecutors have been admonished time and again to avoid statements to the effect that, if the defendant is innocent, government agents must be lying.” Id. at *3 (quotations and citation omitted). “Here, the prosecutor’s argument came very close to altering the burden of proof . . . [T]he prsoecutor’s argument that either the [officer] or Ruiz must be lying could well be construed as arguing an inference unsupported by the evidence, and thereby altering the burden of proof.” Id. at *4. “We need not decide the issue . . . because we conclude that, even if the prosecutor committed error, the error was harmless . . . “In light of the strength of the evidence, the prosecutor’s evidence did not materially affect the fairness of Ruiz’s trial.” Id. at *5.

Of Note: Judge Pregerson “reluctantly” joins the majority opinion, but write separately to specifically question the slides used by the prosecutor in closing argument. Id. at *7 (Pregerson, J., concurring). As explained by Judge Pregerson, the prosecutor’s argument “distorts the burden of proof and misstates the law, but sadly is condoned by the incantation: ‘harmless error review.’” Id. at *7. 

  Interestingly, two years ago Judge Paez penned one of the best harmless error cases in the Ninth. See United States v. Hunt, 656 F.3d 906 (9th Cir. 2011); see also blog here. Frustrating to here see harmless error shield plainly improper argument by the prosecutor.

How to Use: Little to celebrate in Ruiz, but there’s an informative (albeit disappointing)

discussion on jury unanimity in a gun case. Id. at *2. Ruiz was charged with one 922(g) count that encompassed three theories: possessing the gun as seen by the sisters, possessing the ammo in the box, and constructive possession of the shotgun found by the cop. Id. at *1. Not a problem, assures the Ninth: Ruiz was charged with possession of the gun and ammo during one ten-minute period on one night in one location. Id. at *2. The jurors could convict on whatever evidence that they felt supported Ruiz’s guilt, even if they failed to agree on which evidence was persuasive. Id. at *2. (Appropriate that a shotgun was at issue here: this is prosecution by spray shot, where the jury could have split 4/4/4 on the three theories and still convicted!)

                                               

For Further Reading: Did you know that federal agents have tracked people here in

NorCal, using “stingray” cell phone interception technology, and have done so without a warrant? News to us too. Read the fascinating ACLU account, including an intriguing AUSA e-mail exchange on the subject, here. 

  If you have a wiretap, it’s a safe bet your clients were electronically tracked under the guise of a vanilla pen register (a register obtained with an application that didn’t reveal it was authorizing a tracking device). The ACLU’s great work will make for some lively Title III litigation.   

Powerpoint image from http://www.wasupremecourtblog.com/2011/05/articles/oral-argument/how-not-to-use-powerpoint-in-criminal-trials-and-other-oral-arguments-may-10-2011/

 Stingray illustration from http://ispyck.com/law-enforcement-using-cell-phone-tracking-devices/stingray-cell-phone-tracking-how-it-works/

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

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