Case o' the Week: "Awkward" but not "Vague" - Hudson and Facial Vagueness Challenge to Section 2252(b)(2)

 Vagueness challenge doesn’t fly for Hudson's Hawk[ins]. 

United States v. Hudson, 2021 WL 299301 (9th Cir. Jan. 29, 2021), decision available here.

Players: Decision by Judge Hawkins, joined by Judges N. Randy Smith and R. Nelson.

 Hard-fought appeal by ND Cal AFPD Hanni Fakhoury.

Facts: Hudson was charged with possession of child porn. The government gave notice that a prior conviction for Cal. Penal Code § 288(a) triggered a ten-year mand-min, under 18 U.S.C. § 2252(b)(2). Id. at *1. (CPC § 288 prohibited any person from willfully committing a lewd or lascivious act, upon any part of a body of a child under 14, for sexual arousal). Id. at *1 & n.1.

  Hudson pleaded guilty in federal court. At sentencing, he argued that the federal statute, Section 2252(b)(2), was unconstitutionally vague. Accordingly, Hudson argued, he should not be subject to the ten-year mandatory minimum. Id. at *2.

  N.D. Cal Judge Jon Tigar observed that if he had discretion he would have imposed the 87-month term urged by the defense. Ultimately, however, Judge Tigar rejected the challenge and (reluctantly?) sentenced Hudson to ten years. Id.

Issue(s): “On appeal, Hudson contends that his sentence must be vacated because the statutory provision ‘relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward’ is unconstitutionally vague.” Id. at *1.

   “Hudson's arguments center on two lines of precedent: (1) our case law interpreting the phrase ‘abusive sexual conduct involving a minor or ward,’ and (2) our case law determining how the phrase ‘relating to’ affects our application of the categorical approach.” Id. at *3.

Held: “We hold that it is not [unconstitutionally vague] and affirm the sentence.” Id.

 “Section 2252(b)(2)’s application to state crimes ‘relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor’ neither fails to give ordinary people notice of its scope nor poses a risk of arbitrary enforcement. We, therefore, reject Hudson's constitutional challenge and affirm his sentence.” Id. at *7.

Of Note: Much of this case hinges on United States v. Farmer, 627 F.3d 416, 418 (9th Cir. 2010), and Farmer’s holding that CPC § 288(a) is a conviction that categorically related to aggravated sexual abuse (in the context of another federal sex statute). Id. at *3-*4, & n.2. Interestingly, Judge Hawkins spends a fair amount of time discussing Judge Bybee’s special concurrence in Farmer. Judge Bybee criticized the Ninth’s line of authority that lead to Farmer’s “awkward result” of defining terms through both their “ordinary meaning” and by reference to a federal statue. Id. at *4.

  There’s a lot of ink spilled over a Farmer criticism that obviously doesn’t control in the Hudson analysis. Does Judge Bybee’s valid criticism have a sympathetic audience with Judge Hawkins or others on this panel – is this an en banc opportunity? But see id. at *6 (describing the Hudson’s panel’s view that Judge Bybee’s position does “not reveal a constitutional infirmity.”) 

How to Use: Can a defendant bring a facial vagueness challenge to a criminal statute (as opposed to “as applied?”) The government doesn’t think so, and argued as much in Hudson. Judge Hawkins explains the Court didn’t need to reach that issue to resolve Hudson, id. at *5 & n3, so facial challenges are still viable in the Ninth.                                               

For Further Reading: Acting A.G. Wilkinson just pulled a reviled charging memo by A.G. Sessions, that had mandated that federal prosecutors pursue the harshest charges and stiffest penalties. See “DOJ Pulls Trump Administration’s Harsh Charging and Sentencing Policy, available here. 

The new controlling policy is former A.G. Holder’s 2010 charging memo, that instructs federal prosecutors to focus on “individualized justice” and decision-making based on “the merits of each case.” Id. 

Hopefully when Judge Garland clears the Senate, drug mand-mins will also get the DOJ boot (see A.G. Holder's 2013 charging memo). Until then, federal cases should be subject to immediate re-negotiation: cases should now be re-evaluated under A.G. Holder’s 2010 charging memo.

 

 

Poster image of “Hudston Hawk” from https://www.amazon.com/Hudson-Hawk-Sandra-Bernhard/dp/0767821513

 

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

 

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Case o' The Week: "Hall"marks of a "normal" family? - Hall and Conditions of Supervised Release

  What is a “normal” family, and “normal” familial relations?

   (The Ninth, to its great credit, doesn’t know either).

United States v. Leroy Hall, 912 F.3d 1224 (9th Cir. Jan. 11, 2019), decision available here.

Players: Per curiam decision by Judges Gould, Berzon, and ED NY DJ Block. Nice win (again) for AFPD Elisse Larouche (argued), and AFPD Dan Kaplan, D. Arizona FPD.  

Facts: Hall and his son were sentenced to prison for a fraud involving a false money orders. Id. at 1226. (The pair were already incarcerated for a separate joint criminal enterprise.). Id. 

   Over Hall’s objection, the district court imposed a condition of supervised release, providing that he was “permitted to have contact with [his son] only for normal familial relations but is prohibited from any contact, discussion, or communication concerning financial or investment matters except matters limited to defendant’s own support.” Id.

Issue(s): “Hall objected at sentencing that the condition is unconstitutionally vague.” Id.

Held: “We agree, and strike the offending words ‘only for normal familial relations’ from the condition.” Id. 

  “If the district court meant only to prohibit Hall and [his son] from participating in illegal activities together, it could have said exactly that and no more, as defense counsel suggested at the resentencing hearing.” Id. at 1227.

Of Note: This opinion is the second time the district court was reversed on conditions for this defendant. In a previous sentencing, the district court had prohibited Hall from associating with any felon, absent permission from the P.O. Id. at 1226 & n.1. The Ninth reversed in a mem dispo, because the district court had imposed that condition “without justifying or limiting the restriction on Hall’s right to associate with his children.” Id.

How to Use: For a brief decision, this opinion is surprisingly rich in useful concepts for future S/R fights. 

  First, as the Ninth explained in the mem dispo described above, and again emphasized here, conditions that purport to limit contact with the defendant’s children are going to get “careful” review. Id. That familial contact is a “fundamental” right. Id. 

  The Ninth also is skeptical of a condition that limits contact to “normal familial relations.” As the Court asks, what is a “normal” family, and what does a “normal” family “normally” do? Hall is a welcome Ninth shout-out to the “tremendous diversity of family structures and family habits” in America. Id. at 1227. 

  Finally, what is the springboard for the Ninth’s holding that the condition was unconstitutionally vague? Johnson v. United States (2015): a SCOTUS gift that keeps on giving. Id.  

                                               

For Further Reading: Before a defendant can be incarcerated for a violation of supervised release, the Sixth Amendment requires that he or she be afforded a jury trial and that the alleged facts be proved beyond a reasonable doubt. Makes perfect sense to us in the defense bar – and maybe to the Supreme Court as well!

  Last Tuesday, in the Haymond argument, Justice Gorsuch wondered why the federal government was “so anxious to avoid having the involvement of citizens in this process?” He wasn’t alone – a clear majority of SCOTUS (including the strong voice of Justice Sotomayor) seemed to agree. See Gorsuch and Sotomayor Team Up Yet Again in Defense of the Sixth Amendment, available here. 

  We’ll concede there may be an asterix or two in this hoped-for victory: the Haymond statute at issue requires a five-year term after a S/R revocation for child porn (thus triggering all sorts of Apprendi issues). See SCOTUS blog article here. 

  Must “vanilla” S/R revocations -- that don’t require custody terms -- also be proved beyond a reasonable doubt in a jury trial? We’ll never know if we don’t fight for it – preserve Haymond objections in supervised release revocations.

Image of “the Adamms Family” from https://www.darkcarnival.co.za/the-addams-family-animated-reboot-has-sausage-party-director/

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

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Case o' The Week: "Question the Wisdom or Necessity" - Agront and Void for Vagueness Due Process Challenges

Lucky Lear.  The King's agitated confrontation with his supportive adult child didn’t take place in a VA parking lot. 

  (He’d have been arrested and convicted for “loud and boisterous conduct.”)

 United States v. Agront, No. 12-10218 (9th Cir. Nov. 21, 2014), decision available here.

Players: Opinion by Judge Fisher, joined by Judges Thomas and Berzon. Hard fought appeal by AFPDs Heather Angove and Cynthia Lie, ND Cal FPD.

Facts: Louis Agront Sr., a vet, was having problems. He had been having knee and foot pain, and agreed when his adult son and daughters asked him to go to the VA hospital in Palo Alto. Slip Op. at 3. Unbeknownst to him, the kids were taking them to the VA because they were concerned about recent changes to his behavior. Id. When he learned of the ruse the first trip, Agront refused treatment and began walking home. His children tried again, and brought him back – (falsely) assuring him he’d see a normal podiatrist if he returned. Id. Agront’s encounter with a VA nurse and social worker did not go well: he paced, had pressured and quick speech, and stormed off away from the hospital. Id. at 4. Agront’s son confronted him the parking lot, about 25 yards away. Id. Their yelling prompted the social worker to call the VA police; the cops arrested Agront (but not his son), and Agront was ultimately charged with disorderly conduct which created a loud, boisterous, or unusual noise (a Class B misdemeanor). Id. at 6. A federal magistrate judge denied the defense Due Process motion to dismiss because the regulation was void for vagueness, and convicted Agront after a bench trial. Id. The district court affirmed.

Issue(s): “[Agront] . . . argues that that, as applied to his conduct, the regulation is manifestly vague even under [his proposed narrowing] interpretation because he was cited for violating the regulation, but no citation was given to his son or to a patient playing loud music from a radio earlier that day.” Id. at 8.

Held: “Applying [Agront’s proposed] reasonable construction of the regulation, Agront’s conduct was clearly prohibited.” Id. at 13. “We hold that disorderly conduct creates sufficiently loud, boisterous, and unusual noise to be prohibited under § 1.218(a)(5) and (b)(11) when such conduct would tend to disturb the normal operation of the VA facility. Applying that interpretation of the regulation, we affirm Agront’s conviction.” Id. at 17.

Of Note: How does the Ninth feel, about the vital federal interest in prosecuting an upset vet, struggling with his adult kids who are trying to help him as he wrestles with emotional or mental health issues? Judge Fisher sums it up well: “One may reasonably question the wisdom or necessity of the citation, and of the prosecution that followed, but Agront has not shown it was unconstitutional.” Id. at 14. Notably, the Court then drops a footnote to the VA’s own regulations, that caution that arrest is generally not the appropriate remedy for disruptive patients. Id. at 14 & n. 6.

How to Use: While the defense lost the (hard fought) war, it won an important battle: a new and narrowed standard for disorderly conduct. Judge Fisher explains, “The VA facility context therefore requires adopting the controlling standard of conduct for which Agront advocates: the quantum of ‘[d]isorderly conduct which creates loud, boisterous, and unusual noise’ that is required to violate the regulation is conduct sufficiently ‘loud boisterous and unusual’ that it would tend to disturb the normal operation of the VA facility.” Id. at 12. The Court also adds a requirement that this disruptive conduct must pose an “actual or imminent interference’ with the facility’s operation.” Id. at 12 & n.5. Agront is now the good new test for this otherwise vague reg.  

                                               

For Further Reading: This federal prosecution made the press. For a local summary of the big case, take a look at Vet’s conviction upheld for ‘loud and boisterous conduct’ at Palo Alto VA hospital, available here.

Image of King Lear and Cordelia from http://images2.fanpop.com/images/photos/6800000/King-Lear-as-Cordelia-romola-garai-6878965-400-275.jpg

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

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Case o' The Week: Failed Conspiracy Good Enough for Successful Prosecution, Mincoff

Is a defendant guilty of conspiring to distribute cocaine when he never actually possessed the cocaine - indeed, when the cocaine sought was never actually delivered?

Yep. United States v. Mincoff, No. 08-50058, 2009 WL 2342031 (9th Cir. July 31, 2009), decision available here.

Players: Decision by Judge Johnnie B. Rawlinson (above left), joined by Judges Canby and N. Randy Smith.

Facts: James Mincoff called Munoz in 2004 to ask if Munoz had access to cocaine, and then ordered eight kilos. Id. at *1. Munoz delivered, Mincoff took it and delivered it to his customer, then returned and paid Munoz’s accomplice for the drug. Id. In 2005, the government got a wiretap and caught Mincoff ordering six or seven kilos from Munoz. Id. at *1-*2. The delivery was delayed, the buyers got antsy, and this order gradually dropped down from 6, to 3, and then to 1 kilo. Id. at *2. Ultimately, Munoz never delivered so Mincoff never actually possessed cocaine for the 2005 (attempted) transactions. Id. at *2.

Both men were charged federally, Munoz flipped, and Mincoff was convicted at trial of conspiracy to distribute cocaine, attempt to distribute cocaine, and unlawful use of a communication facility. Id. at *1. The government had alleged in an information Mincoff’s prior conviction for possession of ephedrine with intent to manufacture meth; at sentencing the district court dubbed that prior a “felony drug offense” and doubled the mandatory minimum to twenty years. Id. at *8.

Issue(s): (Among many): 1. Fronting: Can the practice of “fronting” drugs without immediate payment be evidence of a conspiracy? Id. at *3-*4.

2. Conspiracy: Does “conspiracy to distribute cocaine require proof that one possessed that cocaine?” Id. at *8 (emphasis added).

Held: 1. Fronting: “We are persuaded by precedent from our sister circuits that evidence of fronting may support a conviction for conspiracy to distribute a controlled substance.” Id. at *4.

2. Conspiracy: “We adopt the rule articulated by our sister circuits that a narcotics distribution charge may be proven without proof of possession.” Id. at *9.

Of Note: The above are but two of the handful of new Ninth Circuit rules created in Mincoff. Judge Rawlinson holds that Mincoff’s ephedrine conviction qualifies as a § 841 prior that can double the mandatory-minimum sentence. Id. at *11. The Court also holds that § 841 isn’t void for vagueness as to the ephedrine prior. Id. at *12-*13.

Admittedly, none of these new rules are radical breaks from existing conspiracy or § 841 law in other circuits. Nonetheless, given the amount of new Ninth Circuit precedent forged in the case there is surprisingly little discussion of countervailing arguments. See, e.g., id. at *13 (rejecting in two sentences “rule of lenity” argument in support of constitutional vagueness challenge).

How to Use: For better or worse, Mincoff is a mandatory read for those defending federal drug and conspiracy cases. The decision discusses “fronting” in depth, and describes how fronting evidence can undermine “buy-sell” law for conspiracies. Id. at *4. It explains why there was enough evidence in the case to show that Mincoff and Munoz had agreed to the “essential terms of the planned transaction” with enough certainty to support a conspiracy conviction (although the pair never agreed on an amount of cocaine that was actually delivered). Id. at *5. The case explains that there was a “substantial step” taken towards an attempt to distribute a controlled substance: “[t]he only thing missing was the drugs . . .” Id. at *6. It discusses (and rejects) Mincoff’s arguments on a multiple conspiracies instruction. Id. at *7. Finally, it marches through the definition of “felony drug offense” for Section 841 priors, then rejects Mincoff’s challenge to the doubling of his mandatory minimum sentence. Id. at *11-*12.

In short, a drug defense must dodge many Mincoff minefields.

For Further Reading: For an excellent outline on how to discipline Conspiracy, that spoiled brat of the prosecutor’s nursery, see Jon Sands’ masterpiece here.




Image of the Hon. J. Rawlinson from http://levellers.wordpress.com/2009/05/07/supreme-court-possibilities-i-the-women/

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

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