Monday, October 12, 2020

Case o' The Week: The Ninth's Pending Decision - Pacheco Pacheco and Statutory Interpretation

    “Deported” to Duluth? 

    A Black’s and white statutory interpretation case, for the Ninth.

United States v. Pacheco Pachecho, 2020 WL 5902923 (9th Cir. Oct. 6, 2020), decision available here.

 Players: Decision by visiting WD Ark. DJ Dawson, joined by Judges Graber and Bress. Hard-fought appeal by D. Az. AFPD Keith Hilzendeger.  

 Facts: Section 22465(A) of Title 18 prohibits sexual abuse of a ward, who is in “official detention” “pending deportation.” Id. at *1. Pacheco worked at a shelter housing unaccompanied noncitizen children. Id. He was charged under § 22465(A), for sexual contact with these minors. Id. at *2. An official testified at trial that the minors had been served with a Notice to Appear in Immigration courts, and that their cases were in the process of being adjudicated. Id.

  In reality, however, all of the minors were later placed with U.S. sponsors: none were ultimately deported. Id. 

  Pacheco’s Rule 29 motions argued the minors were not “pending deportation” within the meaning of the statute. Id. Those motions were denied and Pacheco was convicted.

 Issue(s): “To establish federal jurisdiction under the statutes of conviction, the victims must be in ‘official detention’—a term that extends to detentions ‘pending . . . deportation.’ 18 U.S.C. § 2246(5)(A). Pacheco contends that his convictions should be vacated because the government presented insufficient evidence to demonstrate that the minors were in official detention. In Pacheco's view, a person is ‘pending deportation’ only if he is awaiting actual removal from the United States following a final order of removal.” Id. at *1.

Held:We hold that, under 18 U.S.C. § 2246(5)(A), the phrase ‘pending ... deportation’ does not require a finding of actual or inevitable removal from the United States. Instead, it is sufficient that, as here, the government had initiated removal proceedings against the minors, even though those proceedings were unresolved and the minors therefore did not face a certainty of deportation. Because the government presented testimony establishing that the minors in this case had been served with Notices to Appear in Immigration Court and were placed into removal proceedings that created the possibility of deportation, the statute’s jurisdictional element was met.” Id. at *1.

Of Note: Pacheco rejected a six-year deal before trial. He then received a nineteen year sentence after trial. This whopping 300% trial penalty is reported in a concurrently-filed mem dispo, where the big legal battles in this case are resolved. See United States v. Pacheco, 2020 WL 5910103, (9th Cir. 2020) (mem.) 

  In the mem dispo, the Ninth tolerates a government “expert” forensic examiner specializing in child abuse, and rejects a FRE 403 challenge to that “expert’s” testimony. Id. at *2. The Ninth also tolerates a six-level upward adjustment, based on aggravating circumstances. Id. 

  There are admittedly some bad facts in this case (Pacheco was HIV positive): the mem dispo reveals the story behind the opinion’s story . . .

How to Use: Like the Herrera opinion discussed last week, see blog here, , Pacheco is really statutory interpretation case. And like Herrera, the ubiquitous Bryan Garner makes an appearance in support of the Court’s interpretation. Id. at *3 (discussing Black’s Law Dictionary definition, edited by Prof. Garner).

 Pacheco offers a long discussion of the word, “pending” (and tries to distinguish a 2015 J. Reinhardt decision along the way.) The opinion’s expansive definitions of “pending” and “official detention” may have unintended consequences down the statutory interpretation pike: worth a Westlaw search to see what opportunities the case may present.                             

For Further Reading: A cop’s official statement should not an open-book test, to be tweaked after watching body camera video.

The San Francisco Police Commission has finally adopted a policy that restricts cops from viewing body cam footage before providing a statement in an officer-involved shooting, or involving an in-custody death. 

For an article describing this development (with some insights from our own ND Cal AFPD David Rizk), see New body-worn camera measures pass – after 2.5 years of negotiation with SF police union, available here




Image of Black’s Law Dictionary (edited by Bryan A. Garner) from



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









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