Rita Readings

The Denver University Law Review has compiled a special federal sentencing survey, just in time to whet your appetites for next week's oral arguments in Gall and Kimbrough. The survey includes articles from professors and judges discussing the impact of Rita v. United States on the federal sentencing landscape. Best of all, the articles are freely available on the DULR website, just a mouse-click away.

(Hat tip: Sentencing Law and Policy.)

Jury Unanimity as to Gun Not Required Under 922(g); TSR Condition Requiring Compliance with State Sex Offender Registration Laws OK

United States v. Talbert, No. 06-31233 (5th Cir. Sept. 25, 2006) (Higginbotham, Garza, Benavides)

Although brief, this opinion breaks new ground for the Fifth Circuit on two important issues: 1) whether the felon-in-possession statute, 18 U.S.C. § 922(g), requires jurors to unanimously agree that the defendant possessed a particular gun, and 2) whether a district court may order a defendant to comply with a state sex offender registration scheme as a condition of supervised release.

Gun Unanimity Under § 922(g)
Talbert's indictment alleged that he possessed two guns which were found in his car on the night of his arrest. At trial, the court instructed the jury, over Talbert's objection, that

[i]t is not necessary for the government to prove that the defendant possessed both firearms. It is only necessary that you find that the government has proven beyond a reasonable doubt that the defendant possessed a firearm.

On appeal, Talbert argued that this instruction

improperly allowed conviction even if the jurors were not unanimous as to which gun he actually possessed. This is not just theoretical, he asserts, because defense witnesses at his trial testified that the two guns were left in the vehicle on separate occasions, one days or weeks before the arrest and the other on the day of arrest. Consequently, he asserts, jurors may have disagreed as to which gun he knowingly possessed.

The court rejected Talbert's argument, adopting the reasoning of the First Circuit's decision in United States v. Verrecchia:

1. § 922(g) refers to "any firearm," suggesting that "any firearm" is the element and the particular firearm is the means;
2. the statutory structure and legislative history focus on felon status rather than the number of guns possessed;
3. "Usually, the only issue under § 922(g)(1) is whether the defendant possessed a gun, so there is little risk that jurors will ignore underlying factual detail."; and
4. other courts, including the Fifth Circuit, have held that unanimity on a particular firearm is not required under § 924(c).

Requiring State Sex Offender Registration as a Condition of Supervised Release
"At sentencing, the district court voiced concern about Talbert’s lengthy and serious prior criminal history, particularly his two state convictions for sex-related offenses." After asking Talbert whether he'd ever been required to register as a sex offender under state law, the court stated that it was "reserv[ing] to the probation department the right to order him to do that[.]" The written judgment "included as a 'Special Condition' of supervised release that Talbert 'shall register as a sex offender under state law if required to do so.'"

On appeal, Talbert challenged the condition itself, as well as the district court's delegation to the probation officer. The court rejected both arguments. It construed the written condition as a requirement that Talbert obey the law, which a district court may include as a condition of supervised release. (It left open the question of whether a court can required a defendant to register as a sex offender in the absense of state law requiring such registration.) As for the delegation question,

Presumably whether Talbert is required to register under state law is a mechanical, straightforward question – one the court did not address merely for lack of definitive information about Talbert’s prior sex-related convictions and state law. This, along with the fact that probation officers are often given wide discretion in enforcing conditions of supervised release–indeed, the United States Probation Office is a branch of the federal judiciary and “an investigatory and supervisory arm” of the sentencing court, see United States v. Davis, 151 F.3d 1304, 1306 (10th Cir. 1998)–lead us to find no error in with the discretion given here.

We'll leave for another day the question of whether application of a state sex offender registration scheme is as mechanical and straightforward as the court believes, not to mention the troubling separation-of-powers concerns raised by the grant of investigatory and quasi-prosecutorial duties to an agency within the judicial branch.

Circuit Split on UUV: Tenth Circuit Holds It's Not an Aggravated Felony & Rejects Fifth Circuit Law to the Contrary

Those of you who handle a lot of illegal reentry cases know that the Fifth Circuit held, in United States v. Galvan-Rodriguez, that unauthorized use of a vehicle qualifies as an "aggravated felony" under 8 U.S.C. § 1101(a)(43)(F), which includes "crimes of violence" as defined in 18 U.S.C. § 16. Galvan-Rodriguez held that UUV is a COV under § 16(b), which includes offenses that present a "substantial risk that physical force against the person or property of another may be used in the course of committing the offense[,]" reasoning that UUV carries a substantial risk that the vehicle will be damaged. You also know that the Fifth Circuit has persisted in this view, even though the Supreme Court rejected this type of result-oriented interpretation of § 16(b) in Leocal v. Ashcroft (discussed in greater detail here).

It's time to start taking this up. The Tenth Circuit recently held in United States v. Sanchez-Garcia* that a UUV statute similar to the one at issue in Galvan-Rodriguez does not qualify as an aggravated felony. Sanchez-Garcia expressly refused to follow Galvan-Rodriguez, properly recognizing that the Fifth Circuit's reasoning on this issue is contrary to Leocal. It concluded that, to qualify as a COV under § 16(b), an offense must carry a substantial probability that a person will avail himself of force, not that damage to persons or property may result. It also focused on the requirment that the risk of force be substantial. UUV doesn't necessarily entail that type of risk, so it's not an aggravated felony.

We've already had a conflict between Fifth Circuit case law and a decision of the Supreme Court. Now we also have a conflict with another court of appeals. That, combined with the fact that the issue involves a statutory COV definition, not just a guideline definition, and one that applies to both criminal and immigration cases, makes this a good candidate for a cert petition. So you should preserve this issue if it arises in any of your cases.

*United States v. Sanchez-Garcia, No. 06-2262, 2007 WL 2537883 (10th Cir. Sept. 6, 2007). You can read the Tenth Circuit Blog's coverage of the case here.

Looking for an Expert Witness on Eyewitness Identification? Cast Your Gaze on El Paso.

As reported by our next-door neighbor Tenth Circuit Blog, the University of Texas at El Paso has "a whole lab dedicated to studying the validity of eyewitness identifications." It's the Eyewitness Identification Research Laboratory. From a quick scan of the lab's webpage, it looks like it has a lot of good resources you can use if eyewitness ID is an issue in one of your cases.

"If Your Juror Were Writing On Line, Could You Find It?"

That's the title of this very interesting post by Anne Reed at Deliberations, a blog devoted to "law, news, and and thoughts on juries and jury trials." As Reed notes, it's becomming increasingly common for jurors to blog, read blogs, and comment on blogs, both during and after trials. You'd want to be aware of such activity if it was happening in one of your trials, wouldn't you? So how do you find it? Read Reed's post to find out.

While you're there, you might want to check out some of the other posts, as well. Like this one about an article by a federal district judge making the case for jury questionnaires.

Indecency With a Child Under Okla. Stat. tit. 21, § 1123(A)(4) Is "Sexual Abuse of Minor" & Therefore a U.S.S.G. §2L1.2 COV

United States v. Balderas-Rubio, No. 06-41153 (5th Cir. Sept. 5, 2007) (King, Garza, Benavides)

Balderas, who pled guilty to illegal reentry, had a prior conviction for "Indecency or Lewd Acts with a Child Under the Age of Sixteen," in violation of what is now Okla. Stat. tit. 21, § 1123(A)(4). The issue: is that offense a "crime of violence" subject to a 16-level enhancement under U.S.S.G. §2L1.2(b)(1)(A)(ii), either as the enumerated COV "sexual abuse of a minor" or as an offense that has an element of physical force?

That portion of the Oklahoma statute makes it a crime "to intentionally look upon, touch, maul, or feel the body or private parts of any child under sixteen (16) years of age in any lewd or lascivious manner . . . ." The state charging instrument alleged that Balderas "intentionally looked upon and touched the body and private parts" of a child "in a lewd and lascivious manner . . . , to wit: by forcibly placing his penis into [the child's] hands and having her masturbate him[.]"

Balderas conceded that sexual acts involving actual contact with a minor, as well as those done in the minor's presence, would fit within the generic definition of sexual abuse of a minor. But he argued that the Oklahoma statute is broader than generic SAM because of the "look upon" alternative, "which could conceivably punish a person who merely lewdly or lasciviously looks upon a minor from afar, [such as through a telephoto lens,] without the minor’s knowledge." In that instance, Balderas argued, there would be no potential for psychological harm to the child and therefore no abuse.

The court disagreed with Balderas's argument concerning the scope of the Oklahoma statute, pointing to the following passage from the Supreme Court's opinion in United States v. Duenas-Alvarez:

[T]o find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application legal imagination to a state statute’s language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime. To show that realistic possibility, an offender, of course, may show that the statute was so applied in his own case. But he must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.

The court concluded that because Balderas hadn't pointed to anyone convicted under the Oklahoma statute "for merely looking at a minor from a distance and without the minor’s knowledge[,]" and because Balderas's information established that he hadn't been convicted under such a theory, he had failed to show a "realistic possibility of such a prosecution." The court therefore held that Balderas's "Oklahoma conviction constitutes 'sexual abuse of a minor' for the purposes of U.S.S.G. § 2L1.2(b)(1)(A)(ii) as a matter of law."

"Substantially Facilitate" Element of Illegal Alien Harboring Means to Make Alien's Presence Substantially "Easier or Less Difficult"

United States v. Shum, No. 06-11002 (5th Cir. Aug. 10, 2007) (Higginbotham, Wiener, Garza)

Shum, who was the vice-president of an office-cleaning company that employed illegal aliens as janitors, was convicted of alien harboring for gain under 8 U.S.C. § 1324. On appeal, he argued that the Government failed to prove that he "substantially facilitated" the aliens' presence in the United States, an element of the offense. Specifically, he argued that employing the aliens made it more likely that their illegal presence would be detected, and that, because the aliens remained in the U.S. before and after they worked for Shum, his conduct had nothing to do with their continued illegal presence in the U.S.

The court rejected what it characterized as Shum's "but-for" argument. Relying on a Second Circuit opinion (which in turn cites legislative history), the court concluded that "Congress intended for § 1324 to deter '[e]mployers . . . from hiring unauthorized aliens and this, in turn[,] will deter aliens from entering illegally or violating their status in search for employment.'" (alterations in Shum). "[D]eclin[ing] to adopt a definition of 'substantially facilitate' that undermines Congress's purpose in enacting § 1324[,]" the court held that "to 'substantially facilitate' means to make an alien's illegal presence in the United States substantially 'easier or less difficult.'"

The court went on to find the element satisfied in this case. Shum gave the aliens fake ID's "to facilitate the background check required to clean government buildings," and failed to file requried social security paperwork. By employing the aliens and "shield[ing] their identities from detection by the Government[,]" Shum substantially facilitated their illegal presence in the U.S.