Thursday, December 20, 2007

How to Preserve Argument That Indictment Dismissed Because of Speedy Trial Act Violation Should Have Been Dismissed With Prejudice

United States v. Stephens, No. 07-30837 (5th Cir. Dec. 19, 2007) (per curiam) (Jolly, Prado, Southwick)

In United States v. Jackson, the Fifth Circuit held that a dismissal of an indictment without prejudice (due to a Speedy Trial Act violation) is not a final appealable order. Instead, "appellate review of a dismissal without prejudice must await final judgment after re-indictment." To preserve the issue, a defendant must move to dismiss the second indictment on the ground that the first one should have been dismissed with prejudice, and, if that's denied, either go to trial or enter a conditional guilty plea preserving the right to appeal that decision.

Stephens presents a slightly different procedural posture:

Eddie Stephens was convicted of armed bank robbery and firearm offenses in 2003. On appeal, this court found a violation of the Speedy Trial Act. The court reversed Stephens’s convictions, vacated his sentence, and remanded the case to the district court for a determination of whether dismissal of the indictment should be with or without prejudice.

On August 21, 2007, the district court dismissed the indictment without prejudice. Stephens appealed that ruling. Soon thereafter, he was indicted a second time, in United States.

The court held that Jackson still applies, even though the order of dismissal occurred after remand. It's still a non-final, non-appealable order in these circumstances. The court therefore dismisses this appeal, but notes that

Stephens may preserve the issue for appeal in the manner explained in Jackson, that is, he should move to dismiss the second indictment at the earliest practicable stage of those proceedings on the grounds that his first indictment should have been dismissed with prejudice under the Speedy Trial Act, and consequently he should not have been re-indicted.


If Defendant Appears Before Being Indicted, then Indictment Starts Speedy Trial Clock Running

United States v. Lopez-Valenzuela, No. 05-61130 (5th Cir. Dec. 19, 2007) (Jolly, Clement, Owen)

This is a Speedy Trial Act case, so let's start with the timeline:
  • Lopez is arrested for illegal reentry and appears before a magistrate judge
  • Lopez is indicted for illegal reentry
  • Lopez signs a "Waiver of Appearance and Entry of Not Guilty Plea" form
  • more than three months later, the waiver form is filed
  • the next day, Lopez files a motion to dismiss the indictment because he wasn't brought to trial within 70 days of his indictment, as required by the STA
The district court denied Lopez's motion, so he entered a conditional guilty plea reserving the right to appeal that ruling.

The issue is when the STA clock began to run. The STA provides that "[i]n any case in which a plea of not guilty is entered," a trial must commence within 70 days from the filing of the indictment, or the date the defendant appears in the court in which the charge is pending, "whichever date last occurs." 18 U.S.C. § 3161(c)(1).

The Government argued that the clock didn't begin to run until Lopez filed his waiver of arraignment "because it was only then that the case became one 'in which a plea of not guilty is entered.'" The court disagreed:
Like many other circuits, this court has “construe[d] ‘appearance before a judicial officer’ to mean a defendant’s initial appearance before a judicial officer.” Thus, in cases in which the defendant appears before being indicted, the indictment is the start date. To hold otherwise would render the choice of dates specified in § 3161(c)(1) superfluous; “[i]f a pre[-]indictment initial appearance were not considered to be an ‘appearance before a judicial officer of the court in which such charge is pending,’” the date of the indictment could never be the date that “last occurs.

It further explained that the phrase "'in which a plea of not guilty is entered'" determines only whether the time restrictions apply. It does not determine when the clock starts."

So in this case, that meant Lopez's STA clock began running when he was indicted. Since he wasn't brought to trial within 70 days of that date, the court remands with instructions to dismiss the indictment.

Perhaps to assauge prosecutors' fears about the effect of this holding, the court adds this caveat:
This does not mean that a defendant can withdraw a guilty plea and thereby take advantage of § 3161(c)(1) by pleading not guilty after seventy days have elapsed from the triggering event. As § 3161(i) makes clear, in situations in which a defendant pleads guilty or nolo contendere and later withdraws that plea, the defendant shall be deemed indicted on the day the order permitting withdrawal of the plea becomes final.

There's also some interesting dicta concerning the situation in which a defendant is not arrested until after the indictment:
Here, Valenzuela first appeared pre-indictment, and the speedy-trial clock began to run on the date of his indictment regardless of the date he ultimately pleaded not guilty. If Valenzuela had been indicted before his arrest, however, his “Waiver of Appearance and Entry of Not Guilty Plea” could be the “date the defendant has appeared,” but not necessarily so. Consistent with our precedent, a post-indictment arraignment would trigger the speedy-trial clock only if it is the initial post-indictment “appear[ance] before a judicial officer.” Although other courts have held differently, a post-indictment appearance need not be an arraignment in order to act as the start date because the text of § 3161(c)(1) does not require that the appearance be an arraignment. Section 3161(c)(1) merely requires an “appearance before a judicial officer.” To hold otherwise would require us to ascribe different meanings to the same words depending on whether a defendant first appeared pre- or post-indictment. Such a result is not only inconsistent with customary standards of statutory interpretation, but it would also invite unnecessary delay in holding an arraignment.

So how 'bout that? We're on the good side of a circuit split.

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Monday, December 17, 2007

Assault with Intent to Commit a Felony is Generic "Aggravated Assault" for COV Purposes

United States v. Rojas-Gutierrez, No. 06-50584 (5th Cir. Dec. 13, 2007) (Garwood, Jolly, Stewart)

Rojas, who pled guilty to illegal reentry, had a prior conviction under Cal. Penal Code § 220(a), which criminalizes assault with the intent to commit certain felonies (mayhem, rape, sodomy, oral copulation, or three other sex offenses). The court characterized § 220(a) as "assault with intent to commit a felony," and then held that to be equivalent to "aggravated assault," an enumerated crime of violence subject to a 16-level enhancment under guideline §2L1.2. In so holding, the court relied principally on LaFave and Black's:

Professor LaFave’s definition of aggravated assault notes that “[i]n all jurisdictions statutes punish, more severely than simple assault, such aggravated assaults as ‘assault with intent to murder’ (or to kill or rob or rape) and ‘assault with a dangerous [or deadly] weapon.’” 2 Wayne R. LaFave, Substantive Criminal Law, § 16.3(d). The definition of aggravated assault provided in Black’s Law Dictionary similarly notes that aggravated assault is a “[c]riminal assault accompanied by circumstances that make it more severe, such as the intent to commit another crime or the intent to cause serious bodily injury, esp. by using a deadly weapon.” Black’s Law Dictionary (8th ed. 2004).

The court also said § 220(a) was essentially the same as the Model Penal Code definition of aggravated assault because, despite minor differences, they both "define aggravated assault as an assault that attempts to cause serious injury to another."

Perhaps recognizing the troubling breadth of this holding, the opinion also contains this qualifier: "We do not decide whether every assault with intent to commit another crime is an aggravated assault under § 2L1.2. That is, we do not hold that an assault with intent to commit some truly insignificant offense would be an aggravated assault."

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Wednesday, December 12, 2007

Panel Reverses Itself in Ford; Now Holds Possession with Intent to Offer to Sell is a Drug Trafficking/Controlled Substance Offense

United States v. Ford, No. 06-20142 (5th Cir. Dec. 11, 2007) (Davis, Prado; Dennis, dissenting)

As you'll recall, back in May the panel in this case held unanimously that the Texas offense of possession of a controlled substance with intent to deliver is not a "controlled substance offense" as defined in guideline §4B1.2. That's because 1) the Texas definition of "delivery" includes an offer to sell a controlled substance, 2) prior Fifth Circuit opinions have held that an offer to sell lies outside the virtually identical "drug trafficking offense" definition in guideline §2L1.2, and 3) if an offer to sell isn't a DTO/CSO, then it logically follows that possession with intent to offer to sell isn't a DTO/CSO, either.

Six-and-a-half months later, the panel has changed its mind. It now holds that the offer-to-sell precedent isn't controlling because "the conviction here was for possession with intent to deliver rather than just delivery or transportation." Apparently relying on colloquial understandings of "delivery" and "distribute," rather than the actual language of the Texas "delivery" definition, the court "agree[s] with the government that it is pure sophistry to distinguish between the conduct of one who possesses drugs with intent to deliver those drugs and one who possesses drugs with intent to distribute them."

The controlling case, according to the court, is United States v. Palacios-Quinonez, which held that a California statute prohibiting the purchase of a controlled substance for the purpose of selling it is equivalent to possession with intent to distribute and therefore a DTO. Palacios-Quinonez distinguished the offer-to-sell cases on the ground that it's possible to offer to sell drugs without possessing them, but that a purchase for sale requires the actual or constructive possession of drugs. Therefore,
[f]or purposes of qualifying as a controlled substance offense, Ford’s conduct is indistinguishable from Palacios’ conduct. Ford possessed drugs with intent to deliver or pass them on to another. Palacios purchased drugs (and thereby actually or constructively possessed them) and intended to sell them to another. The conduct in both instances is equivalent to the drug trafficking offense, possession of a controlled substance with intent to distribute.

Judge Dennis, who authored the original panel opinion, dissents. He covers a lot of ground, but here's the core of his disagreement (sans citations):

[T]he majority attempts to (mis)characterize Ford’s “intent to deliver” as an “intent to distribute.” The majority concludes quite summarily that “Ford possessed drugs with intent to deliver or pass them on to another.” (emphasis added). The majority obviously believes and desires to characterize Ford as intending to “pass” drugs onto another, which is “distribution” for federal sentencing purposes. However, no document informs this panel that Ford was convicted for intending to “pass” controlled substances. He was only convicted for an “intent to deliver controlled substances,” which includes an intent to “offer to sell controlled substances.” Gonzales clearly forbids us today to characterize the term “delivery” in this Texas statute as necessarily including the “passing” of controlled substances to another, i.e., actually or constructively transferring controlled substances to another. Gonzales logically requires us today to consider Ford’s conviction as possession with intent to offer to sell and not, as the majority desires, a conviction that implicates an intent to actually or constructively transfer controlled substances.

In essence, the majority opinion is asking us to disregard precedent concluding that “a disjunctive statute may be pleaded conjunctively and proven disjunctively.” The majority now recharacterizes Ford’s guilty plea as necessarily convicting him of possession with intent to transfer, rather than with intent to offer to sell, although the latter is the only intent or offense imputable to him under the Taylor categorical approach. Thus, the majority disregards Gonzales and an established line of precedent under which we are required to assume that the conviction was necessarily established under only the least culpable of the disjunctive possibilities, i.e., possession with intent to offer to sell.

Judge Dennis makes several other points, as well. He responds effectively to the majority's ill-advised adoption of the Government's "sophistry" rhetoric by counting noses and finding that a majority of Fifth Circuit judges have signed on to opinions employing Ford's original reasoning: "[B]y pejoratively calling the reasoning of our original panel opinion 'sophistry,' the new majority here is hurling the epithet of 'sophist' at no less than a majority of this court, including all members of this panel."

Judge Dennis also points out that the new-and-improved Ford will lead to anomolous results. Under Texas law, possession with intent to deliver is a lesser-included offense of delivery. Thus, under Ford redux "a Texas culprit who possesses drugs with intent to offer them for sale is exposed to USSG enhancement while a Texas criminal who is guilty of the greater and more serious crime of delivery of drugs is not."

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Tuesday, December 11, 2007

Fifth Circuit Local Rules Changes Effective December 1, 2007

The Fifth Circuit has helpfully provided this summary of Local Rules changes that took effect on December 1st. Those changes include:
  • elimination of the Rule 28.2 provisions concerning the "Summary of Argument," "Statement of Jurisdiction," and "Standard of Review;"
  • amendment of Rule 30.1.2 to require filing of an electronic copy of the record exceprts (in PDF format), in addition to the paper copies;
  • permitting counsel to file the electronic copies of briefs and record excepts on a CD instead of a diskette; and
  • lowering the maximum taxable cost for reproduction of briefs, appendices, and record excerpts to 15 cents per page.


Court Adopts Generic Definition of "Theft Offense" Used By Other Circuits for Aggravated Felony Purposes

Burke v. Mukasey, No. 06-60710 (5th Cir. Dec. 10, 2007) (per curiam) (Jolly, Higginbotham, Elrod)

The "aggravated felony" defintion in 8 U.S.C. § 1101(a)(43) includes a bunch of things (many of which are neither aggravated nor felonies), including a "theft offense." Other circuits have held that
the modern, generic, and broad definition of the entire phrase “theft offense (including receipt of stolen property)” is a taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent.
According to the opinion, the Fifth Circuit has used this definition in at least a couple of unpublished cases. Burke "formally adopt[s]" it. (There's no discussion of whether there's a circuit split on the question of whether generic theft actually requires an intent to permanently deprive the owner of the property, rather than simply a temporary deprivation. The latter is arguably a trespass, not theft.)

The court goes on to hold that "criminal possession of stolen property in the third degree," in violation of N.Y. Penal Law § 165.50, fits within the generic definition of a theft offense. The New York offense is defined thusly:
A person is guilty of criminal possession of stolen property in the third degree when he knowingly possesses stolen property, with intent to benefit himself or a person other than an owner thereof or to impede the recovery by an owner thereof, and when the value of the property exceeds three thousand dollars.

One more you can add to your list.


Wednesday, December 05, 2007

Plenty of FEMA Fraud Prosecutions in Southern Mississippi

Speaking of FEMA fraud, the Associated Press reports that
The Bush administration now acknowledges it is trying to recover nearly $500 million from people who improperly received federal aid money intended to help victims of two deadly hurricanes, Katrina and Rita, along the Gulf Coast two years ago. It said the amount may increase further.

According to the article, that includes fraud prosecutions:
The Justice Department has prosecuted about 800 people for charges stemm[ing] from hurricane fraud, with the largest number occurring in southern Mississippi, according to its Hurricane Katrina Fraud Task Force.

So if you find yourself handling a FEMA fraud case, you might want to call the folks in the Southern District of Mississippi to get the low-down on defense strategies.