Sunday, September 20, 2020

Case o' The Week: Qazi like fox - Qazi and Du Bo Challenges to the Indictment

Du Bo shot with pro se spin earns defense nice Rehaif win.  

United States v. Qazi, 2020 WL 5553323 (9th Cir. Sept. 17, 2020), decision available here.

Players: Decision by Judge Hunsaker, joined by Judge Wardlaw and visiting CJ Cook. Nice win for former CD Cal AFPD Michael Tanaka.

 Facts: Omar Qazi represented himself pro se against felon-in-possession charges. Id. at *1. He filed a pretrial motion seeking dismissal of the indictment, for (among other things) failure to state an element. Id. (He did not identify the missing element.) Id. That motion was denied, he went to trial, and was convicted. Id.

  While his appeal was pending, the Supreme Court decided Rehaif, where “the Supreme Court recognized for the first time that the defendant’s knowledge of his felon status is a required element under Section 922(g).” Id. at *2.

Issue(s): “In this circuit an indictment missing an essential element that is properly challenged before trial must be dismissed. United States v. Du Bo, 186 F.3d 1177, 1179 (9th Cir. 1999). There is no dispute that pro se defendant Omar Qazi’s indictment was missing a required element. The question is whether Qazi properly challenged his indictment pre-trial, thereby triggering the Du Bo rule.” Id. at *1 (emphasis in original).

Held:Following our well-established obligation to construe pro se filings liberally, we hold that Qazi did properly challenge his indictment, and we direct the district court to dismiss his indictment, as we must.Id.

 Of Note: Make a proper and timely challenge to deficient indictment in the Ninth, and you get automatic reversal on appeal (with no harmless error hurdles to clear). That rule conflicts with several other circuits, and has prompted some grumbling dissents here in the Ninth. Id. at *2 (reviewing Du Bos, dissents, and concurrences).

  Grizzled Apprendi vets will remember back in the early days of that decision, Du Bo presented a real defense conundrum: challenge a deficient indictment before trial, and the AUSA would just cure a missing element with a quick trip to the grand jury. Wait, however, to bring the indictment challenge at trial, after jeopardy had attached, and your motion would be rejected as untimely.

  Maybe our clients should have fired us, and filed pro se, broad Apprendi motions that complained of missing elements, but did not identify which element was not alleged? Id. at *4 (discussing the possibility that Qazi was in a better position as a pro se litigant than he would have been in had he been represented by counsel).

 How to Use: How specific does a Du Bo pretrial challenge to the indictment have to be? Good question, and one that many defense counsel have wrestled with. Here, Qazi complained the indictment failed to allege “all of the elements of a Federal Crime” – but didn’t specify that the missing element was his knowledge that he was a felon. Id. at *3. That was specific enough – for a pro se litigant. Id. at *4.

  If mulling a Du Bo challenge to a deficient indictment, read the Qazi discussion on specificity. The Qazi pro se challenge may not be quite specific enough for a motion made by counsel, but at least the opinion marks rough boundaries for this requirement.                                             

For Further Reading: Tributes have been pouring in all weekend, on the remarkable legacy of Justice Ruth Bader Ginsburg. Gender equality, choice and reproductive rights, and legendary dissents number among her many legal landmarks. See Ruth Bader Ginsburg’s biggest cases: Equal pay, Bush v. Gore and insider trading, available here.

  What was the Justice’s legacy in criminal law issues? One interesting area is the Sixth Amendment right of Confrontation. Justice Ginsburg famously penned the Bullcoming decision, on the Crawford ramifications of lab reports in criminal cases. See SCOTUS blog here 

 Justice Ginsburg’s unlikely pal, Justice Scalia, joined her in an exegesis of how prosecutors can still prove their cases, while honoring Confrontation Clause rights, in Part IV of Bullcoming. See decision here

 Will the Court’s Crawford coalition maintain a majority when both Justices Scalia and Ginsburg are replaced on SCOTUS? Much depends on the Senate, between now and January 3



Image of “Pro Se” from


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



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