Thursday, May 30, 2013

Speedy Trial Issues: Notice of Intent to File Guilty Plea Tolls Clock

United States v. Dignam, No. 12-30262 (May 28, 2013) (Davis, Graves, Higginson)

Notice of Intent to File Guilty Plea Tolls Speedy Trial Clock
The Fifth Circuit joined six other circuits by finding that the delay prompted by the parties’ notice of intent to file a guilty plea was excludable under 18 U.S.C. § 3161(h)(1)(D). Section 3161(h)(1)(D) excludes "delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion." Why is a Notice of Intent to File a Guilty Plea considered a motion? Well, the panel reasoned, notice of intent to change a plea to guilty triggers Federal Rule of Criminal Procedure 11, which requires the court to hold a hearing to accept that plea. So, such a notice is a pretrial motion per § 3161(h)(1)(D).

The panel rejected the district court’s conclusion that the notice of intent to file a guilty plea tolled the Speedy Trial clock pursuant to 18 U.S.C. § 3161(h)(1)(G), which excludes "delay resulting from consideration by the court of a proposed plea agreement." In this case, the parties never filed the proposed plea agreement with the court, so the court could not have been probably considering it. The district court’s error, however, was harmless since the time was excludable under § 3161(h)(1)(D).

Successor Judge’s Articulation of Predecessor Judge’s Reasoning Satisfies Findings for "Ends of Justice" Continuance 
The panel also rejected Dignam’s arguments that turned on the fact that the original district judge passed away before he ever stated on the record the exact reasons for granting the defense attorney’s unopposed motions for continuances. The district judge who later took over the case made written findings as to why the deceased judge granted the continuances—"because of defense counsel’s need for additional preparation time following his total hip replacement surgery." The panel found that "[a] successor judge’s later articulation of a predecessor judge’s reasoning does not frustrate the ‘two-fold’ purposes of the [Speedy Trial] Act’s requirement that the court set forth its reasons for granting a continuance. Those purposes are, first, to establish ‘that a clear record will exist for appeal,’ and second, to ensure ‘that the trial court will carefully consider all relevant factors.’"

Open-Ended Continuance Resulting in 7-Month Delay Permissible
At one point, the district court granted a continuance due to defense counsel’s need to recover from hip surgery without setting a new trial date. The Fifth Circuit allows a district court to continue a trial indefinitely under § 3161(h)(7) "when it is impossible, or at least quite difficult, for the parties or the court to gauge the length of an otherwise justified continuance." Since the motion did not specify the amount of time the attorney needed to recover, the panel found that it was "quite difficult" to gauge the necessary length of the continuance, that the seven-month delay was not extreme, and that did not prejudice Dignam. Her conviction was affirmed.

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Friday, May 24, 2013

Degree of Causation Required for Aggravated Alien Transporting Unresolved

United States v. Alvarado-Casas, No. 12-40295 (May 14, 2013) (Davis, Graves, Higginson)

Pursuant to a plea agreement, Alvarado-Casas pled guilty to conspiring to transport unlawful aliens causing serious bodily injury to, or placing in jeopardy the life of, any person ("aggravated alien transporting"). The "serious bodily injury" element increases the maximum penalty from ten years of imprisonment to twenty. At the plea hearing, the Government read a factual basis that established that the driver of a truck loaded with seventeen undocumented immigrants went off an embankment and that the driver was transporting the individuals for Alvarado-Casas. On appeal, Alvarado-Casas argued that the factual basis was insufficient because, he argued, aggravated alien transporting requires proof that he personally and directly caused the serious bodily injury and the factual basis only established that the driver, not Alvarado-Casas, directly caused the serious bodily injury.

The panel found no plain error in the district court’s acceptance of his statement of guilt, stating
Admittedly, by its terms, § 1324(a)(1)(B)(iii) appears to limit liability for causing serious bodily injury to the specific defendant whose guilt is at issue. . . . But even if we were compelled by the language of § 1324(a)(1)(B)(iii) to conclude that the offense has a personal causation component, that would not resolve the issue before us; we would still need to decide the degree of causation required (e.g., direct causation, but-for causation, substantial-factor causation, command causation, proximate causation, etc.), an issue not resolved by the plain language of the statute or our construction hitherto of it.
The panel went on to note that the Fifth Circuit has affirmed convictions for aggravated alien transporting when the defendant was personally involved in the accident that resulted in serious bodily injury. "These decisions establish that direct, personal causation satisfies the causation element of the statute, but they do not foreclose the possibility that the causation element could be satisfied by a showing of other, more remote degrees of causation, such as proximate causation or command causation."

Alvarado-Casas also asserted that the district court erred by misadvising him of the statutory maximum sentence for the offense since the district court informed him that he faced only a ten-year maximum sentence. The panel found that this error was clear and obvious but that Alvarado-Casas did not establish "a reasonable probability that but for the error, he would not have pleaded guilty." The record did not show that he was prepared and willing to go to trial, the PSR stated the correct twenty-year maximum sentence, and he received a favorable plea deal.

Lastly, Alvaro-Casas argued that the application of both the transportation of a minor adjustment (U.S.S.G. § 2L1.1(b)(4)) and the use of a minor adjustment (U.S.S.G. § 3B1.4) was impermissible double-counting. Indeed, "[t]he commentary to the use of a minor adjustment instructs that the adjustment should not be applied ‘if the Chapter Two offense guideline incorporates this factor.’" U.S.S.G. § 3B1.4 cmt. n.2." This issue, however, was foreclosed by the Government’s invocation of Alvarado-Casas’ appeal waiver.

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Thursday, May 23, 2013

Immigration Cases Strain Justice System and Threaten Rights

Human Rights Watch released a report today entitled Turning Migrants Into Criminals: The Harmful Impact of US Border Prosecutions. This 82-page report captures in detail the rise of illegal entry and illegal reentry prosecutions, the cost on our judicial system, and the resulting toll on human rights.

As the Human Rights Watch news release states:
The US government claims these prosecutions are necessary to keep dangerous criminals from entering the United States and to deter illegal immigration. But the immigration prosecutions are not meeting their purported goals.
Instead, many of those targeted for prosecution are non-citizens with minor or no criminal histories. In 2011, 27 percent of those prosecuted for entry crimes had no prior felony convictions, and only 27 percent had criminal convictions considered "most serious" by the US Sentencing Commission, such as a conviction for a crime of violence or a firearms offense. A decade earlier, in 2002, 42 percent had criminal histories considered "most serious" and 17 percent had no prior felony convictions.
Texas Magistrate Judge Felix Recio told Human Rights Watch that the US government has created a "felony class" of non-citizens: "Where there’s no criminal history, no immigration history, the criminalization of these defendants is something that’s very difficult [for me]." Defense attorneys noted that even among people with more serious records, many have very old convictions and have lived law-abiding lives for years.
Moreover, many of those who enter or reenter the US unlawfully do so for reasons completely unrelated to conventional notions of criminal activity, such as the desire to reunite with family or because they are fleeing violence and persecution abroad. US District Judge Robert Brack, who estimated he has sentenced over 11,000 people for illegal reentry, stated, "For 10 years now, I’ve been presiding over a process that destroys families every day and several times each day."
Yet rather than evaluating whether these prosecutions are meeting their intended goals, the US government seems intent on doing more of the same. Recent data from the US Department of Justice indicates that in the first six months of fiscal year 2013, immigration prosecutions were up 10 percent.

Meanwhile, an increase in immigration prosecutions seems to be necessary ingredient to any comprehensive immigration reform in an attempt to achieve that elusive "secure" border. As U.S. District Judge Royal Furgeson Jr. pointed out on his editorial, Immigration reform must adequately fund the federal courts, in the Fort Worth Star-Telegram, the "U.S. Senate bill sets aside $6.5 billion for immigration enforcement agents and new prosecutors—potentially tripling federal immigration cases in some Southwest border areas. But none of that money is for the courts," which includes the federal defenders and probation and pre-trial officers. 



Monday, May 20, 2013

Mandatory Minimum at Original Sentencing Applies to Modification Hearing Notwithstanding Dorsey

United States v. Kelly, No. 12-30936 (May 13, 2013) (Jones, Dennis, Haynes)

The panel affirmed that Kelly was subject to the 10-year mandatory minimum in place at the time of his original sentencing in 2004, not the 5-year mandatory minimum in place at the time of his modification hearing pursuant to 18 U.S.C. § 3582(c)(2) hearing. The panel found that Dorsey v. United States, 132 S. Ct. 2321 (2012), did not change precedent regarding § 3582(c)(2) hearings. Since a modification hearing pursuant to § 3582(c)(2) is not an original sentencing hearing, the mandatory minimum that existed at the time of the original sentencing still applies.

In 2004, Kelly pleaded guilty to possession with intent to distribute 50 grams or more of cocaine base and possession of a firearm during a drug-trafficking offense. He was sentenced to 121 months in prison. The Fair Sentencing Act ("FSA") of 2010 changed the statutory minimum for 50 grams or more of cocaine from 10 years to 5 years. Kelly filed a motion to reduce pursuant to § 3582(c)(2) based on Amendment 750 to the U.S. Sentencing Guidelines, which lowered the base offense levels for crack cocaine offenses in conformity with the FSA. The district court modified the sentence to 120 months after determining that it could not reduce the sentence further due to the mandatory minimum in effect at the time of his original sentencing. The panel affirmed.


Monday, May 06, 2013

Pharmacies' Pseudoephedrine Purchase Logs Are Business Records & Are Not Subject to the Confrontation Clause

United States v. Towns, No. 11-50948 (Apr. 30, 2013) (Jolly, Jones, Graves)

A divided panel held that the pseudoephedrine purchase logs from various retailers were business records under Federal Rule of Evidence 803(6) and not subject to the Confrontation Clause. These logs were the primary evidence against Towns to support his convictions for conspiracy to manufacture methamphetamine and conspiracy to possess and distribute pseudoephedrine. The pharmacies kept the logs to comply with state regulations, did not use the logs for any other business purpose, and did not necessarily require the purchaser’s photo identification when making a log entry. The pharmacies provided affidavits that tracked the language of Rule 803(6), and the Government introduced the logs through a law enforcement officer who had no personal knowledge of the pharmacies’ record-keeping systems. Towns tried to exclude the logs through a motion in limine but, according to the majority, did not specifically object to authentication or foundation.

The majority reasoned that the logs were maintained during the ordinary course of business and therefore business records pursuant to Rule 803(6). It did not matter that the pharmacies did not actually rely upon or use the logs in any way and that the logs only served law enforcement purposes. The majority found that the custodian affidavits provided by the pharmacies were sufficient, and that the Confrontation Clause was inapplicable because the logs were not prepared solely with an eye toward trial but rather in order to comply with state regulatory measures.

The dissent, authored by Circuit Judge Graves, sharply disagreed. Judge Graves provided the factual background highlighting the lack of evidence—other than the logs—that linked Towns to the alleged conspiracies. Judge Graves concluded that the logs were not business records pursuant to Rule 803(6) and Fifth Circuit precedent because they lacked accuracy, reliability, and trustworthiness since the pharmacies did not rely on the logs for their own business matters. He also found that the officer witness was not a qualified witness to introduce the logs since he could not explain the pharmacies’ record-keeping systems, and that the pharmacies’ affidavits were insufficient for proper authentication. Judge Graves determined that the logs were testimonial and subject to the Confrontation Clause because they were created for law enforcement purposes, were used to establish or prove some fact at trial, and were not created to administer the pharmacies’ affairs.

The district court found that Towns did not qualify for safety valve because he continued to profess his innocence even after found guilty at trial. The majority affirms this finding, noting that a defendant does not have to profess guilt in order to qualify for safety valve, but that the district court determined that Towns was not completely truthful and, for this reason, denied safety valve. Judge Graves would reverse on this point as well, as he interprets the district court’s comments as erroneously reading into the safety valve provision a requirement to admit guilt.

In the end, the panel affirms Towns’ conviction and ten-year sentence almost entirely based on the evidence of pseudoephedrine purchases logged by clerks at Walgreens, Wal-Mart, Target, and CVS under Towns’ name without any corroboration such as photo identification verification and similar signatures. These logs and the testimony at trial never established that Towns was actually the person buying the pseudoephedrine on each of those occasions, just that his name was entered in the logs. While Towns admitted to purchasing some pseudoephedrine, he maintained through sentencing—much to his detriment—that he did not participate in the alleged conspiracies.

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