Sunday, April 26, 2015

Case o' The Week: Undone by a "moment of mental clarity" - Alvarez-Ulloa and Insanity Defenses

 “Still crazy after all these years,” is not enough.
 “Still crazy for all these years?” asks the Ninth, instead.
United States v. Alvarez-Ulloa, 2015 WL 1784183 (9th Cir. Apr. 21, 2015), decision available here.

Players: Decision by Judge Tashima, joined by Judges Paez and D.J. Block. Hard-fought appeal by AFPD Keith Hilzendeger, D. Az.  

Facts: Jesus Alvarez-Ulloa was a Mexican citizen and boxer. Id. at *1. Found in the U.S. after being removed, he was charged under 8 USC § 1326. Id. At trial, the defense presented evidence that Alvarez-Ulloa suffered from chronic traumatic encephalopathy, which – according to a defense expert – could have rendered him legally insane. Id. at *3. The court instructed the jury with the standard insanity instruction (“the defendant was unable to appreciate the nature and quality or the wrongfulness of his acts.”) Id. 
   After several hours of deliberation, the jury sent a note asking, “if the defendant had any moments of mental clarity during [the entire time he was here illegally] . . . does that negate the defense of insanity?” Id. The court referred back to the original instruction – and still no unanimous verdict. 
  The court then gave the following supplemental instruction: “The insanity defense would be negated if, after entering the United States, the Defendant ceased to be insane for a long enough time that he reasonably could have left the United States, and he then knowingly remained in the United States for that time.” Id. at *4. The jury returned a guilty verdict 37 minutes later. Id.

Issue(s): “Ulloa . . . contends that the district court’s supplemental instruction impermissibly coerced the jury’s verdict in violation of the Sixth Amendment.” Id. at *7.

Held:To succeed in his defense, Ulloa . . . needed to prove that he was legally insane for virtually the entire duration of his illegal stay, such that he could not have reasonably left the United States. We therefore conclude that the district court’s supplemental instruction was substantively correct.Id. at *7.

Of Note: Judge Tashima starts with the substantive holding above – that the supplemental instruction was correct. That holding appears to be decision of first impression: for the continuing offense of being "found in" the United States, the defendant must be insane for the entire duration of the crime. For illegal reentry – where the crime continues during that entire length of the time in the U.S. – that temporal requirement is a substantial obstacle to the insanity defense. Illegal reentry is probably the longest federal “continuing offense” crime – but it ain’t the only one. Escape from federal custody, and failure to appear, are both dust-gathering continuing crimes. See United States v. Gray, 876 F.2d. 1411, 1419 (9th Cir. 1989). Alvarez-Ulloa merits some thought, when contemplating an insanity offense for a continuing offense that can span over months (or years).

How to Use: The defense also characterized the court’s supplemental insanity instruction as unduly coercive. Id. at *8. The Ninth thought not:” “The supplemental instruction was brief, direct, and does not appear to have been directed at any particular juror. The district court did not err in giving the supplemental instruction.” Id.  Important to note, however, that Judge Tashima emphasizes the instruction allowed conviction if the mental defect relented – the instruction took no position on whether the defect had relented. Id. at *8. It is a fine read, but one that makes a difference for supplemental (“dynamite” or Allen-type) charges: verboten for the district court to “attempt to recast the evidence in a light more favorable to the prosecution.” Id. at *8.
For Further Reading: The long, expensive, and tiresome saga of the Bonds prosecution has (hopefully) come to a close. The en banc court’s brief opinion, and the much longer concurrences, can be found here. 
  What exactly is the full scope of 18 USC § 1503? “[H]ow many San Francisco lawyers [does the government plan] to throw in jail?” Id. at 2. (J. Fletcher, concurring). All superb questions, that must wait for another day and another case (and, one hopes, another district). 
  Congratulations to Dennis Riordan and Ted Sampsell Jones for their masterful appellate advocacy and a big hometown win.

Image of Paul Simon album cover from!PaulSimonStillCrazyAfterAllTheseYearsCover.jpg

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



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