Sunday, July 19, 2015

Case o' The Week: Ninth (Sai)Pans specific intent requirement. - Ye and Mens Rea for Passport offense

It's a Winn-Win situation . . . (for the government).
United States v. Ye, 2015 WL 4153634 (9th Cir. July 10, 2013), decision available here.

Players: Decision by Judge Friedland, joined by Judges Clifton and N.R. Smith.  

Facts: Ye, a Chinese citizen, overstayed her visa in Saipan and gave birth a child.
Hon. Judges Michelle Friedland and N.R. Smith
Id. The child’s place of birth made her a U.S. Citizen entitled to a U.S. passport. Id. Ye and her husband could have obtained a U.S. passport for the child if they both applied in person, or if one parent signed a notarized authorization statement. Id. This notarized statement, however, would have caused (unspecified) problems for the father of the child in China -- so the father’s brother traveled to Saipan, posed as the father, and executed the child’s passport application. Id. Both the brother (the child’s uncle) and Ye, the mother, were charged with conspiracy to violate 18 U.S.C. § 1542, providing false information in a passport application. Id. Ye was convicted after trial.

Issue(s): “[Ye] argues that the district court’s jury instructions erroneously failed to condition her convictions on a finding that she intended to violate the passport laws.” Id. at *1.

Held: “We hold that the crimes for which Ye [were] convicted are not specific intent crimes, so her challenges to the jury instructions fail.” Id. at *1. “We now join our sister circuits and hold that, consistent with [the Supreme Court’s decision in] Browder, a conviction under the first paragraph of 18 U.S.C. § 1542 does not require specific intent.” Id. at *3.

Of Note: “But wait,” you ask: “in ’78 didn’t the Ninth hold that a district court ‘correctly instructed the jury’ that ‘an act is done willfully if done voluntarily and intentionally with the specific intent to do something the law forbids’ – under the same paragraph of this statute?” 

You remembered correctly. Id. at *3, citing Winn

However, Judge Friedland distinguishes Winn because that was a “sufficiency of the evidence” case, “so its approval of the ‘willfully’ jury instruction is best understood as stating that the instruction had not improperly reduced the government’s burden of proof.” Id. at *3. That’s a pretty close reading of precedent to avoid the Miller v. Gammie bar on flipping a prior panel (though the Ninth admittedly gets a little boost from Justice Sotomayor, who had as a judge made the same fine distinction). Id. at *3 & n.2. Another unfortunate salvo in the attack on our beloved and beleaguered federal mens rea requirements.

How to Use: It’s an old (and fair) gambit to intentionally add small errors to a declaration, ask a witness to interlineate and correct them when they object, and then later argue that the witness must have read the document carefully before signing because errors were caught and fixed. Here, the government used that trick: DHS agents intentionally inserted errors in interview read-backs to Ms. Ye, to trigger corrections and later prove the accuracy of the translators. Id. at *5. That strategy helped the government fend off a Crawford attack on the translators in Ye, and it was reported without criticism by Judge Friedland. Sauce for the goose, sauce for the gander: point to this passage when a D.J. gives you grief for your investigator’s use of that technique.
For Further Reading: Many people in prison “really don’t need to be there.” A quote from Justices Kennedy and Breyer? Well, yes, probably, but this week the insight is from House Speaker John Boehner. See article here

Last week Mr. Boehner endorsed the SAFE Justice Act, welcome legislation that narrows the use of mand mins, encourages alternative sentences, and has a number of other reforms. 

Meanwhile, Senate Whip Cornyn (R-Texas) suggested that a bi-partisan sentencing overhaul deal may be announced as soon as next week. Seearticle here.  

Throw in the historic first Presidential visit to a federal prison, NYT article here and maybe this will be the long overdue Summer of Change?   

Steven Kalar, Federal Public Defender Northern District of California. Website at

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