Thursday, July 30, 2009

Fives Certify Question to SCOTUS in Seale; Ask What SOL Applies to Kidnapping Committed in 1967 But Not Indicted Until 2007

You all remember Seale, right? Seale was indicted and convicted in 2007 for kidnapping and conspiracy to commit kidnapping, arising from his alleged involvement in the kidnapping and murder of two black men in 1964. A Fifth Circuit panel reversed Seale's convictions, holding that the prosecution was time-barred because a 1972 amendment to the kidnapping statute retroactively reduced the statute of limitations from life to five years. On rehearing en banc, an equally divided court reversed the panel decision, thus affirming the district court's rejection of Seale's limitations defense.

In a highly unusual move, the en banc court today certified the following question to the Supreme Court, at Seale's urging: "What statute of limitations applies to a prosecution under 18 U.S.C. § 1201 for a kidnaping offense that occurred in 1964 but was not indicted until 2007?"

"What's certification," you ask? It's an obscure provision found in 28 U.S.C. § 1254(2), which provides,
By certification at any time by a court of appeals of any question of law in any civil or criminal case as to which instructions are desired, and upon such certification the Supreme Court may give binding instructions or require the entire record to be sent up for decision of the entire matter in controversy.
As you might imagine, the Supreme Court rarely accepts certified questions. But the Fifth Circuit concluded that this case fits the bill. Why?
This is an issue of first impression and national importance. The nominal affirmance of Seale’s life sentence by an equally divided en banc court is the type of rare instance where certification is appropriate. See Durrant v. Essex Co., 74 U.S. (7 Wall.) 107, 112 (1868) (regarding the legal effect of a tie vote affirmance). By certifying this question regarding the statute of limitations, we are not ignoring our obligation to decide a properly presented case; the evenly divided en banc court was simply unable to reach a decision. Based on the unique facts of this case, we find certification advisable “in the proper administration and expedition of judicial business.” Wisniewski, 353 U.S. at 902.

The Government seeks to establish precedent for filing other criminal indictments relating to unresolved civil rights era crimes; however, the tie vote affirmance rendered by the en banc court contains no reasoned analysis and holds no precedential value. Seale gets no relief from his claim of a time-barred prosecution, and the Government gets no precedent upon which to prosecute other “cold cases” under § 1201. This discrete legal issue needs to be resolved by the Supreme Court in order to give guidance in future cases.

We certify the following question to the Supreme Court: What statute of limitations applies to a prosecution under 18 U.S.C. § 1201 for a kidnaping offense that occurred in 1964 but was not indicted until 2007?

The resolution of this question hinges upon whether Jackson and the 1972 Act, either alone or in combination, resulted in a reclassification of § 1201 from capital under § 3281 to non-capital under § 3282, and if so, whether that reclassification is retroactively applicable to Seale’s conduct.
Judge Jones, joined by Judges King, Wiener, Clement, and Owen, dissented from the certification:
Although the certification falls within the permissible scope of Sup. Ct. Rule 19, it is not worth this busy court’s time or that of the also-busy Supreme Court to pursue that path. The likelihood of the Court’s accepting certification, based on past usage, is virtually nil. The Court has accepted Rule 19 certifications only four times in more than sixty years. To seek certification of an interlocutory appellate decision is also imprudent, especially where, left to its own devices, the panel decision might ultimately reverse the conviction. Finally, I cordially disagree with Judge DeMoss’s* prediction that this limitations issue may bear on two dozen or so cold cases of ugly racial violence remaining from the early 1960s. The letter from the Civil Rights Division of the Department of Justice was far from clear on this point.
Judge Stewart dissented separately, without comment.

*I suppose that lets the identity of the per curiam author out of the bag.

UPDATE: For additional coverage of and commentary on this new development in Seale, check out Howard Bashman (How Appealing), Lyle Denniston (SCOTUSblog), Steve Vladeck (PrawfsBlawg), and Marcia Coyle (National Law Journal).


Wednesday, July 29, 2009

Panel Majority Finds Constitutional Speedy Trial Violation, Holds Standard of Review is De Novo

United States v. Molina-Solorio, No. 08-10167 (5th Cir. July 27, 2009) (Stewart, Southwick; King, dissenting)

It's not every day that you see the court of appeals reverse a district court's denial of a constitutional speedy trial claim—much less when the charge is escaping from federal custody—but that's just what happened in this case. Let's dig in, shall we?

The timeline:
  • 1997: Molina is convicted in federal court of participating in a marijuana conspiracy, escapes from prison, and is indicted for escaping from federal custody (18 U.S.C. § 751(a)).
  • 1999: Molina is sentenced in Texas state court for possession of cocaine. After he serves his sentence, state authorities release him to ICE custody. Federal authorities are aware of the warrant for the 1997 escape charge.
  • 2001: ICE deports Molina to Mexico.
  • December 2006: ICE catches Molina in Texas.
  • July 2007: Molina is sentenced to 51 months' imprisonment for illegal reentry.
  • September 2007: Molina is arrested and arraigned on the escape charge.
  • November 2007: Molina moves to dismiss the escape indictment due to statutory and constitutional speedy trial violations.
  • Next: The district court denied the motion. Molina pleaded guilty conditionally, reserving his right to appeal the denial of the motion to dismiss. He was sentenced to 30 months' imprisonment.
Molina appealed, pressing only the constitutional claim. But before getting to the meat of the matter, the court had to figure out what the standard of review was: "Surprisingly, still unsettled in this circuit is the proper standard for reviewing the district court’s application of the four-factor balancing test from Barker v. Wingo, 407 U.S. 514 (1972)." In an earlier case that declined to resolve the question, United States v. Frye, the court noted that, while factual findings are typically reviewed for clear error, balancing tests are at least mixed questions of fact and law, and are typically reviewed de novo. Molina-Solorio holds: "We agree with the Frye court that application of the Barker test is at least a mixed question of fact and law, and we hold that the appropriate standard of review of the district court’s application of the Barker factors is de novo." This accords with at least five other circuits.

That having been resolved, the court moved on to balance the Barker factors anew:
  • Length of Delay: The 10-year delay weighed heavily in Molina's favor.
  • Reason for the Delay: "[T]his case falls in the 'middle ground' that exists 'between diligent prosecution and bad faith delay and demonstrates negligent prosecution.'" Given the Government's failure to diligently pursue Molina, coupled with the length of the delay, this factor also weighed heavily in Molina's favor.
  • Assertion of Right: This one was a closer call, but ultimately weighed in Molina's favor because there was no evidence that he was aware that he had been indicted for escape until late summer 2007, and he filed his motion to dismiss soon after he was arraigned.
  • Prejudice: Because the first three factors collectively weighed heavily in Molina's favor, the court presumed prejudice. And the Government failed to rebut the presumption (although the court doesn't really explain why).
Consequently, the delay violated Molina's right to a speedy trial, and the court vacated the conviction and remanded with instructions to dismiss the indictment.

Judge King dissented. Although she agreed with the majority that prejudice should be presumed—principally because of the "egregious length of the delay"—she believed the Government successfully rebutted the presumption. In Judge King's view, the Government
argues persuasively that the delay in bringing Molina-Solorio to trial does not implicate the three key interests that “the speedy trial right was designed to protect”: (1) “to prevent oppressive pretrial incarceration”; (2) “to minimize anxiety and concern of the accused”; and (3) “to limit the possibility that the defense will be impaired.” Barker, 407 U.S. at 532. Regarding the “most serious” of the three interests, Molina-Solorio does not even argue that his defense was impaired, nor could he. Id. He makes no claim that his ability to defend against the charge specified in the indictment—specifically, escaping from the Big Spring Prison Camp—has been impaired by the amount of time that elapsed after the indictment. As for the other two interests, again, neither is even claimed by Molina-Solorio to have been infringed. Molina-Solorio’s primary assertion—that had he been incarcerated for escape, he might not have committed the subsequent crimes of possession of a controlled substance (cocaine) and illegal reentry and would not have been charged with the resulting criminal history points—not only fails to demonstrate prejudice; it is, as the government says, “preposterous.” His second assertion—that Texas “might have been willing to run his state sentence of three years imprisonment for possession of a controlled substance . . . concurrent or partially concurrent with his federal charge of escape”—is pure speculation.
It's unlikely that you'll ever have a case presenting similar facts, but this is a good opinion to keep on hand because it canvasses a lot of the Fifth Circuit case law on the constitutional speedy trial right, making it a both a good overview of the issue and a handy starting point for further research.

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Friday, July 10, 2009

Melendez-Diaz, Illegal Reentry, and Certificates of Non-Existence of Record

As promised, here's a post explaining how the Supreme Court's recent decision in Melendez-Diaz v. Massachusetts has abrogated Fifth Circuit case law that permitted the Government to rely on certificates of non-existence of record (CNRs) to prove the no-permission-to-reapply-for-admission element in illegal reentry cases.

Just to make sure we're all on the same page, let's review exactly what a CNR is. Here's how one was described in the Fifth Circuit's decision in United States v. Rueda-Rivera, 396 F.3d 678 (2005):
The CNR was signed by Ruth E. Jones, who was identified as “the Chief in the Records Services Branch, Office of Records, Headquarters, of the Immigration and Naturalization Service, United States Department of Justice.” In the CNR, Jones declared that, pursuant to § 290(d) of the Immigration and Nationality Act and 8 C.F.R. § 1-3.7(d)(4), she was “authorized to certify the nonexistence in the records of the Service of an official file, document, or records pertaining to specified persons or subjects.” The CNR reflected that the INS maintains centralized records relating to immigrant aliens who entered the United States on or after June 30, 1924, and to nonimmigrant aliens who entered on or after June 30, 1948. Additionally, the INS maintains a centralized index of all persons naturalized on or after September 27, 1906. Jones further declared that, “after a diligent search no evidence [was] found to exist in the records of the Immigration and Naturalization Service of the granting of permission for admission into the United States after deportation or exclusion relating to File No. A-72 209 927, Oscar Rueda Rivera . . . .”
In Rueda-Rivera, the Government introduced the CNR through a Border Patrol agent who knew nothing about how the records search was done, or what the Records Chief had done to prepare the CNR.

Sure looks like like a Confrontation Clause violation under the Crawford v. Washington formulation: an out-of-court testimonial statement offered against the defendant, without any showing that the witness is unavailable, and without the defendant having had a prior opportunity for cross-examination. And Crawford identified trial by ex parte affidavit as the "paradigmatic confrontation violation[.]"

But that's not what Rueda-Rivera held. Latching on to some Crawford dicta suggesting that business records are not "testimonial" for Confrontation Clause purposes, Rueda-Rivera adopted the following reasoning from an unpublished Fifth Circuit opinion:
We likened an immigration file to business records and concluded that the file contained statements that by their nature were not testimonial. Accordingly, we held that the introduction into evidence of the immigration file did not run afoul of Crawford and that the district court properly relied on official, non-testimonial public records admissible under the Federal Rules of Evidence, in determining that the defendant was a previously deported alien found in the United States without permission.

The CNR admitted into evidence in this case, reflecting the absence of a record that Rueda-Rivera had received consent to reenter the United States, does not fall into the specific categories of testimonial statements referred to in Crawford. We decline to extend Crawford to reach such a document.
The obvious flaw in Rueda-Rivera's reasoning is that a CNR is not a public record under FRE 803(8)(B), which "exclud[es] . . . in criminal cases matters observed by police officers and other law enforcement personnel[.]"

Fortunately, Melendez-Diaz addresses this very point, and rejects Rueda-Rivera's reasoning. In response to the State's argument that lab reports "are admissible without confrontation because they are 'akin to the types of official and business records admissible at common law[,]'" the Court pointed out that the reports
do not qualify as traditional official or business records, and even if they did, their authors would be subject to confrontation nonetheless.

Documents kept in the regular course of business may ordinarily be admitted at trial despite their hearsay status. See Fed. Rule Evid. 803(6). But that is not the case if the regularly conducted business activity is the production of evidence for use at trial. . . . The analysts’ certificates—like police reports generated by law enforcement officials—do not qualify as business or public records for precisely the same reason. See Rule 803(8) (defining public records as “excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel”).
(emphasis added). Ah, but what about a clerk's certificate authenticating a document?
The dissent identifies a single class of evidence which, though prepared for use at trial, was traditionally admissible: a clerk’s certificate authenticating an official record—or a copy thereof—for use as evidence. But a clerk’s authority in that regard was narrowly circumscribed. He was permitted “to certify to the correctness of a copy of a record kept in his office,” but had “no authority to furnish, as evidence for the trial of a lawsuit, his interpretation of what the record contains or shows, or to certify to its substance or effect.” The dissent suggests that the fact that this exception was“‘narrowly circumscribed’” makes no difference. To the contrary, it makes all the difference in the world. It shows that even the line of cases establishing the one narrow exception the dissent has been able to identify simultaneously vindicates the general rule applicable to the present case. A clerk could by affidavit authenticate or provide a copy of an otherwise admissible record, but could not do what the analysts did here: create a record for the sole purpose of providing evidence against a defendant.
(cites omitted; emphasis added). And that last part is the key. In a passage that almost reads as a direct rebuke to Rueda-Rivera, the Court goes on to say:
Far more probative here are those cases in which the prosecution sought to admit into evidence a clerk’s certificate attesting to the fact that the clerk had searched for a particular relevant record and failed to find it. Like the testimony of the analysts in this case, the clerk’s statement would serve as substantive evidence against the defendant whose guilt depended on the nonexistence of the record for which the clerk searched. Although the clerk’s certificate would qualify as an official record under respondent’s definition—it was prepared by a public officer in the regular course of his official duties—and although the clerk was certainly not a “conventional witness” under the dissent’s approach, the clerk was nonetheless subject to confrontation [under common law].

Respondent also misunderstands the relationship between the business-and-official-records hearsay exceptions and the Confrontation Clause. As we stated in Crawford: “Most of the hearsay exceptions covered statements that by their nature were not testimonial—for example, business records or statements in furtherance of a conspiracy.” Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because—having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial—they are not testimonial. Whether or not they qualify as business or official records, the analysts’ statements here—prepared specifically for use at petitioner’s trial—were testimony against petitioner, and the analysts were subject to confrontation under the Sixth Amendment.
(citations omitted; emphasis added). As you can see, these portions of Melendez-Diaz completely eviscerate Rueda-Rivera's reasoning. There is simply no room left to argue that CNRs are not testimonial after Melendez-Diaz. The CNR's are ex parte affidavits prepared solely for use at trial, and "[t]he Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits[.]"

Okay, so where do we go from here? Given the sheer number of illegal reentry prosecutions, it's obvious that the chief records custodian of whatever agency it is that maintains the relevant records can't possibly be available to testify should a sufficient number of illegal reentry cases proceed to trial. And yet, a CNR won't cut it, if a defendant objects to its admission. So conceivably, if enough defendants charged with illegal reentry demand a trial, the Government will be unable to prove its case in most instances.

But lets assume that the Government makes someone other than the records chief available to testify concerning the lack-of-permission-to-reapply element. There's still ways to attack the element. The witness may not have sufficient knowledge of the record-keeping procedures to prove beyond a reasonable doubt that the defendant lacked the necessary permission to reenter. For that matter, if the witnesses lack of knowledge on such points is bad enough, the Government may not even be able to establish the predicate for admissiblity under FRE 803(10). There's also the possibility that the relevant records are in such a mess that, even with the testimony of a knowledgeable witness, there's still room for a lack-of-proof defense.

In sum, while the effect of Melendez-Diaz on CNR admissibility is clear, the broader ramifications for illegal reentry prosecutions are not. There's always the possbility that the Government will still fight to admit a CNR, meaning that you'll have to litigate the issue. If the Government brings in a witness, you'll have to be prepared for cross-examination both as to the hearsay-exception predicate and with an eye to a failure-of-proof defense. Of course, all this will take a while to shake out, meaning that the effect of Melendez-Diaz on plea negotiations, the decision whether to go to trial, and client advice is even murkier than its effect on trial practice. In the meantime, anyone handling illegal reentry cases will need to pay close attention to these issues.

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Tuesday, July 07, 2009

Courts Lack Authority to Suspend a Failure-to-Depart Sentence After the Sentence Has Begun

United States v. Garcia-Quintanilla, No. 08-50400 (5th Cir. July 7, 2009) (Higginbotham, Garza, Prado)

Prefatory disclosure: I did some work on this case.

Ever heard of 8 U.S.C § 1253? It criminalizes conduct relating to an alien's failure to depart the United States after having been ordered to do so. It also contains a unique provision, in subsection (a)(3), permitting a district court to suspend the sentence of an alien convicted of failure-to-depart. The question presented in this case: does § 1253(a)(3) permit a court to suspend a failure-to-depart sentence after the sentence has begun? Answer: no.

Some context: Garcia, a citizen of El Salvador, was ordered removed from the United States. He refused, however, to cooperate with Salvadoran consular officials in obtaining the travel documents necessary for him to return to El Salvador. Consequently, the Government indicted him for failure-to-depart. "Up until the eve of trial, the Government offered to drop the charges if Garcia-Quintanilla would cooperate in his removal. [He] refused these offers, and a jury later found him guilty."

Although Garcia's advisory Guidelines range topped out at only 6 months, the Government sought an upward variance to the statutory maximum of 4 years, "suggesting that such a sentence would deter Garcia-Quintanilla from persisting in his refusal to speak with the Salvadoran consulate." The Government also justified its request by pointing to § 1253(a)(3), which it claimed would allow the district court to suspend Garcia's sentence should he change his mind in the future and cooperate in his removal. The district court—concerned that a six-month sentence would be insufficient to prompt Garcia's cooperation, thus leading to a series of piecemeal prosecutions for what amounts to an ongoing offense—agreed with the Government's arguments and sentenced Garcia to 4 years' imprisonment. In effect, the court of appeals noted, the sentence operated like civil contempt.

Garcia appealed, arguing that § 1253(a)(3) does not permit a district court to suspend a sentence after it has begun, and that his sentence was unreasonable because it was predicated on such authority. As Garcia did not raise the lack-of-authority argument in the district court, the court of appeals reviewed for plain error.

On the first question—whether there was error—the court began by examining the text and history of § 1253(a)(3), and found both lacking. The statute itself says nothing about when a district court may suspend the sentence, only that it may do so in certain circumstances. Legislative history was also unhelpful. The statute was enacted as part of IIRIRA in 1996, although it amounted to a reenactment of a statute that was part of the Immigration and Nationality Act of 1952. Nothing in the legislative history of either Act addressed the timing-of-suspension point. Complicating matters further, in the mid-1980's Congress passed the Sentencing Reform Act, which eliminated district courts' authority to suspend sentences.

The court, however, found guidance in "the historical practice of sentence suspension[,]" which revealed two important points. First, courts had no inherent authority to order suspension; the practice could only be authorized by Congress. Second, the Supreme Court interpreted the pre-SRA statutory scheme to "permit suspension of a sentence only before that sentence had begun." Consequently, "if Congress intended for § 1253(a)(3) to permit the suspension of a sentence after it has begun, we might expect Congress to say explicitly that a court may suspend a sentence before or after its execution, or we might expect the outlines of a procedure for bringing to the court’s attention the circumstances that warrant a suspension after the sentence has begun." Because the text and structure of § 1253(a)(3) appear to focus on the time of sentencing, "[a]nd because there is nothing in § 1253(a)(3) to indicate that Congress intended to deviate from the baseline of sentence suspension, we must presume that Congress intended § 1253(a)(3) to provide for suspension when suspension has normally occurred."

So there was error. But was it plain? Yes. Although there's no case law on the question, "it has long been the law that district courts cannot suspend a criminal sentence after it has begun. This error did not, therefore, merely rest on a misinterpretation of a statute. It also represented a substantial step beyond the district courts’ traditional authority as defined by the Supreme Court."

But did the error affect Garcia's substantial rights? Yes again. There was a reasonable probability that the sentence would have been lower absent the error, because 1) the sentence was eight times longer than the high end of the Guidelines range, and 2) "the possibility of suspension was an essential aspect of this sentence."

Okay, last hurdle: did the error seriously affect the integrity and fundamental fairness of the proceedings. Indeed it did, for a couple of reasons. First, were the court of appeals "not to correct the error, the end result would be a sentence that no one ever intended and which the court lacked the power to craft as it did[,]" as "the possibility of suspension was an essential aspect of Garcia-Quintanilla’s sentence." Second—and here's where you really want to pay attention—"the length of Garcia-Quintanilla’s erroneously-imposed sentence, the magnitude of which might itself be sufficient under many of our prior decisions. See, e.g., United States v. Sanchez, 527 F.3d 463, 466 (5th Cir. 2008) (holding that an error affected the fairness of judicial proceedings when it resulted in a sentence over two times longer than the proper Guidelines range)." (emphasis added). That may be the most significant part of this opinion. While there are very few prosecutions for failure-to-depart, plain-error application comes up all the time, and the fourth prong can be a big hurdle.

A final point . . . Garcia suggested that § 1253(a)(3) is a dead letter, in light of the Sentencing Reform Act's elimination of suspension authority. The court declined to decide the issue: "The only question in the present case is whether § 1253(a)(3) permits suspension after a sentence has begun; we can simply and safely assume that § 1253(a)(3) authorizes suspension up to the moment when a sentence begins." The court, though, went on to express "serious doubt as to Garcia-Quintanilla’s suggestion[,]" in light of the fact that § 1253(a)(3) was enacted (or re-enacted, depending on how you look at it) after the SRA.

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