Tuesday, August 22, 2006

Young: the Sixth Amendment, constitutional avoidance, and § 922(g)(8)(A)

Within 18 months of the Supreme Court instructing that federal firearm statutes must be construed to avoid constitutional doubts regarding Sixth Amendment protections during predicate criminal proceedings, the Ninth Circuit in Young reversed the grant of a judgment of acquittal, holding that a defendant who is without counsel, and has not waived counsel, during a critical stage of a criminal proceeding, has had sufficient notice and an opportunity to be heard within the meaning of the firearms statute.

Let’s set this up. Brad Young is arrested on December 6 and charged with felony harassment. At his initial appearance, he is appointed counsel, advised of a restraining order, and instructed to return two days later. At the next appearance on December 8, the restraining order at issue is served. But one problem: the lawyer is not present. And there is no Faretta hearing or other waiver of counsel, even though the formal arraignment is unquestionably a "critical stage" of the prosecution under black-letter Sixth Amendment jurisprudence (Wade and Hamilton). The trial court interacts with the defendant in the absence of counsel, and the prosecutor has direct contact with the represented party, again in the absence of counsel.

So Mr. Young is later found in possession of a gun. The district court, after jury trial, carefully looks at the statute on possession of a firearm while under certain restraining orders. To be a predicate order, it must have issued after a "hearing" of which the defendant had "actual notice" and "an opportunity to participate." 18 U.S.C. § 922(g)(8)(A). Although the jury convicted, Judge Fred L. Van Sickle entered a judgment of acquittal, reasoning that the terms of the statute could not be construed to be met under the circumstances of the case. Most importantly, "The judge who presided over Mr. Young’s arraignment did not allow him to consult with his attorney before issuing the no-contact order."

This construction is consistent with Supreme Court authority. In Shepard, one of the most important recent decisions in firearms cases, the Court considered whether, under the Armed Career Criminal Act, the characteristics of a prior conviction could be established by facts not subjected to full Sixth Amendment adjudication in the prior proceedings. The Court held, applying the Doctrine of Constitutional Avoidance, that the statute had to be construed narrowly to only allow prior convictions to be used where each element was proved or admitted in accordance with Sixth Amendment protections. Such an approach is also consistent with the Rule of Lenity, which requires that ambiguous terms be narrowly construed in favor of the defendant.

Instead of relying on these principles, the Young panel defines the terms of the statute -- which have "a variety of meanings in federal law" -- as broadly as possible, even stating that "the ‘opportunity to participate’ requirement is a minimal one." Why would Congress, after stating elements in readily understandable due process language, intend only minimal protection for the gun owner, when the Sixth Amendment so clearly sets out the due process protections required at a criminal arraignment? Here, constitutional rights are at issue. Congress stated that the fairness of the earlier proceedings is a predicate for turning otherwise lawful activity into a crime. The reasonable construction of the statute, as found by the district court, is that it does not cover a proceeding at which counsel had been appointed but was absent and where no waiver of counsel occurred. Even if there were ambiguity, the panel did not apply the Doctrine of Constitutional Avoidance and turned the rule of lenity into a rule of severity.

The Circuits seem to be resistant to full implementation of the Supreme Court’s post-Apprendi Sixth Amendment jurisprudence. Remember, not a single Circuit anticipated Blakely, then the Circuits split on application of Blakely to the federal guidelines. Since Booker, not a single Circuit has had a problem with denying retroactive relief to prisoners whose sentences were enhanced by facts proved by less than beyond a reasonable doubt (as blogged here), which the Supreme Court will review next Term (as blogged here). The Sentencing Commission reports little change in actual sentencing under the advisory guidelines, and the pattern of appellate review demonstrates general affirmances of guidelines and above-guidelines sentences, with the reversals generally limited to district courts exercising the supposed authority to impose reasonable sentences below the guidelines (as reported by Professor Berman here). And speaking of appellate review, half the Circuits apply a presumption of reasonableness, which sneaks the mandatory aspects of the old guideline system through the backdoor (as set out here and 18 Fed. Sent. Reptr. 170).

In the face of the resistance to the Supreme Court's Sixth Amendment jurisprudence, our job is to advocate relentlessly and consistently to assure that our clients do not suffer convictions or serve more time based on the practices and statutory interpretations that raise serious constitutional doubts. This case should be reheard en banc to bring the Ninth Circuit in line with the methodology of constitutional avoidance and the respect for the Sixth Amendment required by the Supreme Court.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon


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