Sunday, October 22, 2006

Case o' The Week: Nguyen Win, No Solo Nolo

An innovative challenge by Alaska AFPD Kevin McCoy gets a conviction reversed in United States v. Dal Van Nguyen, __ F.3d. __, 06 Cal. Daily Op. Serv. 17631 (9th Cir. Oct. 18, 2006), opinion available here. Writing for the panel, Judge Clifton (left) rejects the use of nolo pleas (albeit, in this case's limited context).

Players: Another innovative challenge by veteran AFPD Kevin McCoy of Alaska.

Facts: Nguyen, an immigrant, was ordered removed to Vietnam but couldn’t be deported because there was no repatriation agreement with that county. Id. at 17635. He was released from ICE custody. Id. A condition of his supervision under the release statute was that he not “commit any crimes” while on supervision. Id. (emphasis added). While on this supervision, Nguyen pleaded nolo contendere to two state misdemeanors. Id. He was then charged federally with wilful failure to comply with the terms of the release order, in violation of 8 USC § 1253(b). Id. at 17636. At the jury trial, the government proved their case by submitting certified copies of the two judgements of conviction arising from the nolo plea. Id. Nguyen objected, but the evidence was nonetheless admitted and he was convicted.

Issue(s): “Nguyen argues on appeal that, because a nolo contendere plea is not an admission of guilt to the underlying crime, a conviction based on such a plea does not prove that he ‘commit[ted] any crimes.’ He further argues that his state convictions should not have been admitted into evidence in his trial on the federal charges.” Id.

Held: “Nguyen’s conviction must be reversed. The misdemeanor nolo contendere convictions were legally insufficient to support Nguyen’s conviction for violation 8 U.S.C. § 1253(b). Moreover, the convictions should not have been admitted under Rules 410, 803(22), or 803(8) for the purpose of proving that Nguyen actually committed the underlying crimes charged.” Id. at 17642.

Of Note: This case does not, however, stand for the proposition that all nolo pleas are inadmissible. Instead, the panel (Clifton, joined by Reinhardt and McKeown) look at the plain language of the supervision terms. Nguyen’s supervision said he could not commit another crime – and a nolo plea is not an admission of committing a crime. Id. at 17638. The Court also considered the admissibility of these convictions – and held they were not properly admitted. Id. at 18638. Along the way, the panel made a good new rule in the Ninth Circuit: the government cannot admit misdemeanor convictions under FRE 803(8) [the public records exception] to actually prove that the defendant committed the prior crime. Id. at 17641.

How to Use: Nguyen itself obviously involves narrow factual circumstances. Its principle, however, may prove useful in other contexts – such as supervised release or probation violations. If the Form 12 allegation is that a defendant committed a crime, an order of judgement and commitment from a nolo plea is presumably not sufficient. Where there may be some defenses to the actual crime alleged, Nguyen may strengthen a defendant’s hand when facing Form 12 allegations.

For Further Reading: Nguyen is a non-continental case: defense counsel McCoy is from Alaska, and Judge Clifton is from Hawaii. An infrequent author of criminal opinions, Clifton is a W. Bush nominee who was confirmed in July 2002. See article here. He is a former partner of the largest law firm in Hawaii, Cades Schutte Fleming & Wright. Id. Judge Choy was the first Hawaiian judge to serve on the circuit: Clifton started his career as Choy’s law clerk. See article here.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at



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