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December 24th, 2009UncategorizedU.S. v. Heron-Salinas, No. 08-50276 (5-20-09). The 9th, in a per curiam, holds that a conviction for assault with a firearm under Calif. Penal Code 245(a)(2) is a categorical crime of violence and an aggravated felony for immigration purposes. The 9th considers a plain reading of the statute as satisfying the mens rea requirements of 18 U.S.C. 16(a) and (b) because the offense's elements of unlawful attempt, plus a present ability, to commit a violent injury on a person with a firearm, mean that the defendant acts in disregard for the safety of another. -
December 17th, 2009UncategorizedIn United States v. Laboy-Torres, No. 08-1220, the defendant challenged his conviction for making a false statement to a licensed firearms dealer under 18 U.S.C. §922(a)(6), arguing that his previous conviction in Puerto Rico was not a domestic conviction under 18 U.S.C. §922(g)(1).
The defendant moved to dismiss the indictment, claiming that the government failed to adequately allege the materiality element of 18 U.S.C. §922(a)(6). Citing Small v. United States, 544 U.S. 385 (2005), the defendant argued that his Puerto Rican conviction was “foreign” and not “domestic,” and therefore it could not serve as a qualifying predicate offense under 18 U.S.C. §922(g)(1). According to the defendant, the existence of his Puerto Rican conviction was not material to the lawfulness of the sale because the foreign conviction did not make it illegal for him to purchase a firearm under 18 U.S.C. §922(g)(1). The trial court denied the defendant’s motion, ruling that his Puerto Rican conviction was domestic. The defendant pled guilty on the condition that he could appeal the trial court’s denial of his dismissal motion.
Retired Supreme Court Justice Sandra Day O’Connor, sitting by designation, wrote the opinion for the Court. Justice O’Connor determined that Small was inapplicable to the case because, unlike the Japanese conviction at issue in Small, the defendant’s Puerto Rican conviction was in fact “domestic.” In Small, the Supreme Court recognized a presumption that Congress intends its statutes to prohibit only domestic, not foreign, conduct. Consequently, Congress must also intend only domestic criminal acts to serve as predicate offenses for its statutes.
Justice O’Connor recognized that, as the Commonwealth of Puerto Rico was in essence a “State,” federal laws applied to Puerto Rican conduct. Therefore, based upon the presumption discussed in Small, the defendant’s Puerto Rican conviction was in fact domestic and therefore could serve as a qualifying predicate offense under 18 U.S.C. § 922(g)(1). As a result, Justice O’Connor affirmed the defendant’s conviction. -
August 8th, 2009UncategorizedThe Third Circuit today reaffirmed that, in applying statutes of limitations in the conspiracy context, the critical issue is the scope of the conspiracy charged in the indicment--not, necessarily, the dates of the overt acts recited. In U.S. v. Bornman, No. 07-3447 (3/6/09), the Court was faced with an indictment charging two conspiracies to commit bribery (18 U.S.C. s 371 and 666(a)(1)(B)). The indictment described the object of the first conspiracy as "to enrich [defendants] by corruptly soliciting and accepting payments from contractors with the intent of being influenced . . . ." It also recited six overt acts, including solicitation and acceptance of payments as well as (1) the return of one of the payments as a "loan," and (2) the refusal to return another of the payments as a "loan." Only these last two overt acts fell within the 5-year limitations period, however.
The Court held that, because the conspiracy was charged as having a simple solicit/accept object, the conspiracy was complete when that occurred and the later return or refusal to return the payments as "loans" could not have furthered the conspiracy as charged. The statute of limitations had therefore run, and the defendant's convictions on the first conspiracy count, as well as on the underlying extortion counts, were vacated. The second conspiracy count charged a later conspiracy, which was not time-barred. The Court upheld the defendant's conviction on that count against a sufficiency-0f-the-evidence challenge.
Perhaps inadvertently, the Court also dropped a bombshell by stating without analysis that section 666 bribery does not require proof of a quid pro quo. This issue has not previously been addressed in this circuit, is the subject of a split among others, was not actually at issue in Bornman -- and, in result, is arguably inconsistent with the Third Circuit's decision in U.S. v. Kemp. The Court's cite to the Supreme Court's decision in Sabri v. U.S., 541 U.S. 600 (2004) suggests that it confused the federal nexus issue (i.e., the government need not show a link between the official act in question and the federal funds that provide the jurisdictional hook) with the quid pro quo issue (i.e., the government does need to show a link -- an exchange -- between the official act and the thing of value).
The Court also turned away the defendant's challenge to the denial of his severance motion, reaffirming that the difficult standard for severance is not met by a showing that the evidence in a case is most damaging with respect to only certain counts. -
July 26th, 2009UncategorizedIn U.S. v. Seher, No. 07-13935 (March 26, 2009), the Court affirmed money laundering convictions but vacated the forfeiture judgment, in a case arising out of the use of jewelry stores in Atlanta to launder cocaine trafficking cash proceeds.
The Court rejected the argument that the indictment failed to charge the requisite mens rea for the money laundering offenses. The Court noted that the indictment cited specific subsections of the money laundering statutes. These subsections, in turn, contained mens rea elements. Thus, it was reasonable to infer that the grand jury found that the defendants had the intents to violate the laws.
The Court also rejected a duplicitous indictment challenge. The defendants argued that 18 U.S.C. § 1956(a)(3) contains three different offenses. Consequently, when certain counts of the indictment referenced different subsections of the same statute, they charged two different offenses in the same count. Although the defendants waived this challenge by failing to raise it pre-trial, the government itself waived the waiver on appeal, and the Court therefore considered the argument. The Court concluded that § 1956(a)(3) did not create separate offenses, but listed alternative mental states for a single offense.
Turning to the forfeiture order, the Court rejected the argument that the assets of the jewelry stores, and their bank accounts, should not have been forfeited, because they were not "involved" in the money laundering offenses. The Court found that one of the businesses was a "facade of legitimacy" for the money laundering enterprise. The other jewelry business, however, was unconnected to the unlawful laundering.
Finally, the Court that the record below was insufficient to determine whether the forfeiture of the jewelry business was an excessive fine in violation of the Eighth Amendment. The Court therefore remanded the entire forfeiture order for reconsideration of this issue. -
July 23rd, 2009UncategorizedIn United States v. Shafer, No. 07–2574 (6th Cir. Mar. 3, 2009), Judges Moore, White, and Tarnow (E.D. Mich.) remanded a child-exploitation case for resentencing.
Conviction: Guilty plea to one count of enticing a minor to engage in sexually explicit conduct for the purpose of producing visual depiction of such conduct, and depiction was produced using material transported in interstate commerce—violation of 18 U.S.C. § 2251(a).
Original Sentence: 360 months.
Guidelines: Section 2G2.1. BOL 32. Final OL 41. CHC I. Range of 324 to 405. Stat max of 30 years.
Facts: Bad. Charge involved defendant photographing eleven-year-old boy masturbating.
Issue: Defendant objected to enhancement under Section 2G2.1(b)(2)(A)—if offense involved commission of a sexual act or sexual contact, +2 levels. Defendant argued sexual act/contact do not encompass self-masturbation. Need another person involved.
District Court: Applied enhancement. Found that sexual act requires one individual to make contact with another. But sexual contact is broader and covers self-masturbation. Also found that the entire pattern of conduct involving the victim was all part and parcel of the offense. There was "grooming" conduct to make the victim engage in the sexual behavior.
Appellate Court: 1) Sexual contact includes self-masturbation. But 2) requirements for sexual contact include an intent element. The person who is doing the touching must have a specific intent—e.g., to abuse, humiliate, or arouse the sexual desire of someone. District judge did not make findings regarding the eleven-year-old boy’s intent. Because of the boy’s age, appellate court unwilling to infer necessary intent. Could have been that boy sought only to please the defendant in a non-sexual way. Remanded for findings on intent. 3) There was no evidence that the defendant committed a sexual act or sexual contact during the commission of the offense, in preparation for the offense, or in the course of attempting to avoid detection/responsibility for the offense. Earlier sexual abuse may have made offense of conviction easier to commit, but that fact does not support a finding that the defendant committed the previous abuse with the intent to later have the victim self-masturbate for the offense.
Short Holding: Section 2G2.1(b)(2)(A) does not apply given this record.
Dissent: Judge White would affirm because she thinks the district court found the requisite intent. -
July 19th, 2009UncategorizedIn U.S. v. Lopez-Garcia, No. 08-12662 (April 21, 2009), the Court affirmed the conviction and sentence of a defendant for having been unlawfully found in the United States in violation of 8 U.S.C. § 1326(a) and (b)(2).
The Court rejected the argument that incriminating statements he gave were tainted as the "fruit of the poisonous tree" because they resulted from his initial seizure in violation of the Fourth Amendment. The Court found no Fourth Amendment violation. The police officer had reasonable suspicion to stop Lopez-Garcia’s vehicle based on its observation that he seemed to have been engaging in a drug transaction. [In a footnote, the Court noted that the government had not demonstrated that the "particular circumstances" showed a violation of the Georgia traffic code, and thus a traffic violation alone did not justify the stop]. The Court also found that probable cause supported Lopez-Garcia’s arrest, because the consensual search of the vehicle uncovered a drug substance and paraphernalia. The Court added that even if there had been a Fourth Amendment violation, the statements Lopez-Garcia later gave were "too attenuated from his arrest to be regarded as fruit of the poisonous tree." The statements were made the day after the arrest. The arrest and the questioning were conducted by different individuals. The arrest was not motivated by the ulterior purpose to determine Lopez-Garcia’s immigration status.
The Court also rejected the argument that Miranda required suppression of the statements. The parties did not dispute that Lopez-Garcia was in "custody." However, the Court found that no "interrogation" occurred, because the law enforcement agent who questioned Lopez-Garcia would not have reasonably known that his questions would elicit a self-incriminating statement. The questioner was not aware that Lopez-Garcia had previously been deported, nor that he had entered the country illegally. Therefore, he would not have thought it "especially likely" that Lopez-Garcia would confess to having re-entered the country illegally.
The Court further rejected the argument that the "fruit of the poisonous tree" doctrine required suppression of a second Mirandized confession Lopez-Garcia gave 10 days after his first confession. These later statements were "far too attenuated" from the earlier ones to have been tainted by them. In addition, the Court rejected a Missouri v. Seibert challenge to the second confession, finding that the absence of Miranda warnings in a first interview was not purposeful, but merely reflected the fact that the interrogator did not anticipate that his questions would result in self-incriminating statements.
The Court rejected the argument that Lopez-Garcia’s immigration files should have been suppressed. The Court again found the "fruit of the poisonous tree" doctrine inapplicable. It also noted that identification information is not excludable, citing its recent decision in U.S. v. Farias-Gonzalez (identity evidence not subject to exclusionary rule).
Turning to sentencing, the Court affirmed the imposition of a 16-level sentence enhancement based on a prior conviction for a felony firearms offense under Georgia law. The Court found that the Georgia offense was the equivalent of an 18 U.S.C. § 924(c) violation. The Court noted that the nexus of the firearm to a drug trafficking offense in Lopez-Garcia’s firearm offense would have satisfied the "possession" prong of the § 924(c) offense. The Court rejected Lopez-Garcia’s U.S. v. Shepard challenge to the district court’s fact-finding on this point, noting that the district court relied on the PSI, and the PSI information regarding the prior Georgia offense’s nexus to drug trafficking was undisputed. Without deciding whether reliance on a PSI is always justified, the Court, citing U.S. v. Hedges, noted that when statements in a PSI are undisputed, a sentencing court is permitted to rely on them despite the absence of supporting evidence. -
July 8th, 2009Uncategorized
In most published sentencing opinions upholding sentences against a defendant's challenge, a circuit court panel often provides a detailed description of the crime and its aggravating factors. For this reason, I often get suspicious when I see an opinion like the Eighth Circuit's ruling today in US v. Barron, No. 08-1613 (8th Cir. Mar. 5, 2009). The only hint of the nature and circumstances of the defendant's offense of felon in possession comes from this paragraph:
Here, Barron argued in his sentencing memorandum that the district court should impose the same sentence of probation that another district court imposed in United States v. Francis, No. 03-CR-03174 (W.D. Mo. Nov. 28, 2006), because Barron’s offense conduct was similar to that of Francis. See United States v. Francis, 462 F.3d 810, 812-14 (8th Cir. 2006) (describing the relevant facts). Barron asserted that he, like Francis, had reason to believe that the prohibition on his possession of firearms had ended, and urged that a failure to grant him the same degree of leniency accorded to Francis would cause unwarranted sentence disparity.
But, as the first paragraph of the Eighth Circuit's ruling makes clear, this defendant's sentencing appeal is unavailing:
Charles Barron pled guilty to unlawful possession of a firearm as a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1). The district court sentenced Barron to 46 months’ imprisonment, a term within the advisory guideline range of 46 to 57 months. Barron appeals his sentence, arguing that the district court abused its discretion by failing adequately to consider the need to avoid unwarranted sentence disparities under 18 U.S.C. § 3553(a) and by refusing to vary from the guideline range because of the “inherent inequity” of USSG § 2K2.1(a)(4)(B), which provides an increased base offense level for offenses involving large-capacity semiautomatic firearms. We affirm.
Though it is hard to be certain, this ruling gives me the impression that a defendant has received nearly four years in federal prison for being a foolish gun collector. Maybe my hyper-active Second Amendment radar is a bit out of whack these days, but these kinds of opaque rulings always make me a bit suspicious of what a court has left out of its opinion.
