Conviction Unnecessary to be Inadmissible for Reason to Believe Drug Trafficker

Cuevas v. Holder, No. 13-60150 (Dec. 10, 2013) (Jolly, Smith, Clement)

Cuevas sought review of the Board of Immigration Appeals’ decision concluding that he was inadmissible pursuant to 8 U.S.C. § 1182(a)(2)(C) because there was reason to believe he was a drug trafficker.  The immigration judge (IJ) initially concluded that Cuevas was a drug trafficker because agents found nearly 24 kilograms of cocaine concealed in the rear panel of Cuevas’ car when he was reentering the United States from Mexico, he bought two weeks before, and he had exclusive control over the vehicle except for a period of 60 and 90 minutes while his headlight was fixed at a mechanic’s shop in Mexico.  The BIA remanded, instructing the IJ to determine whether the DHS had “proven by clear, unequivocal, and convincing evidence” that there exists reason to believe that Cuevas was a drug trafficker.

On remand, the IJ relied on additional evidence to conclude Cuevas was a drug trafficker: he was driving his own car, there were fresh weld marks on the rear quarter panel, and the quantity of cocaine indicated illegal trafficking.  The IJ gave very little weight to Cuevas’ testimony that he did not know the cocaine was there and had not noticed the modifications made to his car to hide the cocaine.  The BIA approved of the IJ’s decision the second time around.

On review, the panel affirms the BIA’s decision, joining the other circuits that have held that a conviction is unnecessary to be inadmissible pursuant to § 1182(a)(2)(C).  The panel does not determine the exact measure of evidence needed, however.  The First Circuit requires evidence equivalent to a probable cause standard, and the Ninth Circuit requires a greater showing of reasonable, substantial, and probative evidence.  The panel concludes that the DHS meets either standard in this case.  As such, the panel lacks jurisdiction to consider the petition for review and dismisses the case.

Washington Residential Burglary Is § 2L1.2 Crime of Violence

United States v. Guerrero-Navarro, No. 12-40802 (5th Cir. Dec. 16, 2013) (King, Benavides, Dennis)

Guerrero pled guilty to illegal reentry in violation of 8 U.S.C. § 1326 and possessing a firearm as a prohibited person in violation of 18 U.S.C. §§ 922(g)(5)(A).  Over Guerrero’s objection, the district court determined that his prior conviction for residential burglary in Washington, Wash. Rev. Code § 9A.52.025, is a “crime of violence” both under § 2L1.2 and § 4B1.2(a).  The court applied the enhancements and sentenced Guerrero accordingly.

Guerrero argues that the Washington statute was broader than the generic definition of burglary because it includes fenced areas.  Washington defines a dwelling as “any building or structure . . . which is used or ordinarily used by a person for lodging” and “building” as “any dwelling, fenced area, vehicle, railway car, cargo container, or any other structure used for lodging of persons or for carrying on business therein . . . .”  The panel rejects this argument, finding “there is little or no ‘realistic probability’ that a Washington court would apply the statute to anything other than the structures permitted by” Supreme Court and Fifth Circuit precedent.  See, e.g., United States v. Castillo-Morales, 507 F.3d 873, 875 (5th Cir. 2007) (defining burglary of a dwelling as the unlawful entry into or remaining within, with the intent to commit a crime, a “structure, tent, or vessel where someone lives”).  The panel recognizes that the Ninth Circuit reached the opposite conclusion in United States v. Wenner, 351 F.3d 969 (9th Cir. 2003), finding that Washington has a broader definition of dwelling.  The panel, however, justified its different conclusion because of “the benefit of an additional decade of jurisprudence in which Washington’s courts have consistently interpreted the term such that it denotes and connotes traditional structures, and only those used for human habitation.”  Thus, Washington residential burglary is a crime of violence for purposes of § 2L1.2(b)(1)(A).

Note: The opinion makes a few confusing misstatements that do not affect the ultimate analysis.  Don’t let those confuse you.  For instance, it applies the U.S.S.G. § 4B1.2 definition of a “crime of violence” instead of the definition in § 2L1.2.  Both § 4B1.2 and § 2L1.2 state that “burglary of a dwelling” is a crime of violence, and the § 4B1.2 definition also applies to this case because the guideline for his firearm conviction, U.S.S.G. § 2K2.1, refers to the crime of violence definition at § 4B1.2.  Also, the opinion states that Guerrero pled guilty to “knowing unlawful presence in the United States, in violation of 6 U.S.C. §§ 202(3) & 202(4).”  He really pled guilty to illegal reentry in violation of 8 U.S.C. § 1326.  Being present in the United States is not a crime unless it satisfies the criteria of “found in” described in 8 U.S.C. §1326.  Section 202 of Title 6 of the U.S.C. merely enunciates the responsibilities of the Under Secretary for Border and Transportation Security.

Admitting 40-Year-Old Affidavit of Deceased Grandmother Violated Confrontation Clause

United States v. Duron-Caldera, No. 12-50738 (Dec. 16, 2013) (Higginbotham, Owen, Higginson)

The panel vacates Duron’s conviction and remands after finding that the district court’s admission of his deceased grandmother’s affidavit violated his Confrontation Clause rights.  Duron went to trial on an illegal reentry charge with the defense that the Government could not prove beyond a reasonable doubt that he did not derive citizenship through his U.S. citizen mother. 

At trial, the Government introduced over Duron’s objection a 40-year-old affidavit signed under oath by his now deceased grandmother in connection with an investigation into document fraud.  In that affidavit, the grandmother accuses others of falsely registering her daughter’s (Duron’s mother) birth in Texas.  The district court overruled the objection finding that the affidavit is nontestimonial because it was not created to accuse Duron in his illegal reentry trial.

On appeal, the panel finds that the district court erred by admitting the affidavit because the Government did not meet its burden of establishing that the affidavit was nontestimonial.  First, the Government argued that the affidavit was nontestimonial because it was created primarily for providing evidence for immigration, not criminal, proceedings.  The panel finds, however, that the Government did not provide conclusive evidence that the affidavit was not created for the primary purpose of providing evidence for a later criminal trial. 

Second, the Government argued that the affidavit is nontestimonial because it was not prepared for that particular prosecution of Duron.  After reviewing Williams v. Illinois, 132 S. Ct. 2221 (2012), the Confrontation Clause, and other precedent, the panel concludes that the Government’s proposed “accusation test” construes the Confrontation Clause too narrowly because it does not address the witness-related reliability concerns. 

Given the circumstances of the affidavit and the jury’s initial deadlock (suggesting it seriously considered Duron’s derivative-citizenship defense), the panel concludes that the Government did not prove that the district court’s error was harmless beyond a reasonable doubt.

Grant of New Trial Based on Prosecutor’s Comments Reversed

United States v. Poole, Nos. 12-20485 & 12-20486 (5th Cir. Nov. 11, 2013) (Smith, Dennis, Higginson)

A jury convicted Poole of being a felon in possession of a firearm, but the district court vacated the jury verdict and granted a new trial based on certain comments and cross examination by the prosecutor.  The panel reversed and remanded so that the jury verdict could be reinstated.

Poole first asked for a mistrial when deputy marshal testified on direct examination that one of his duties is “to locate and apprehend local and federal fugitives.”  Defense counsel objected, and the court instructed the jury that Poole was not a fugitive.  The panel found that this line of questioning, which allowed the marshal to explain his duties and give context for being at the scene, is permissible and was not erroneous.

Poole also asked for a mistrial because, during closing arguments, the prosecutor stated that it was not Poole’s “first time in this situation”; asked the jury if it was “going to believe a liar,” referring to Poole; and referred to Poole’s gun as an “assault rifle.”  These arguments eventually convinced the court to grant the mistrial.

However, the panel found that none of these comments in the context of the trial indicated that the verdict was compromised.  The jury was already aware of Poole’s convictions, and the prosecutor referred to them in order to rebut Poole’s defense that he made up the story about owning the rifle, not to demonstrate criminal propensity.  Further, “[t]he government was well within its rights to suggest to the jury that Poole was a liar” since Poole himself testified that he lied.  The panel also rejected Poole’s argument that calling his gun an “assault rifle” justified the court’s grant of a new trial, noting that the gun was referred to as an “assault rifle” throughout the trial but Poole never objected to it.

Since the panel found that none of the challenged comments were improper, the court did not have the discretion to order a new trial.  The panel also rejected the argument that a new trial was necessary because of the prosecutor’s contemptuous conduct.  “[A] new trial is not a mechanism for punishing contempt, by a prosecutor or otherwise, but a way to avoid injustice generally and to avoid a jury verdict for which one has compromised confidence specifically.”

Batson Challenge Denied & Uncorroborated Testimony of Co-Conspirators Sufficient Evidence

United States v. Thompson, No. 12-31203 (Nov. 12, 2013) (Smith, Dennis, Higginson)

Thompson challenged the government’s decision to use five of its seven peremptory strikes against black prospective jurors.  The government justified its decision based on the prospective jurors’ demeanors and, for three of them, also on perceived sources of bias toward the government.  Thompson argued these reasons were pretextual because the prosecutor struck 71% of the black potential jurors.  He also argued that Snyder v. Louisiana, 552 U.S. 472 (2008) requires the district court to state its assessment of demeanor on the record.  The panel disagreed, though, and held that “Snyder does not require a district court to make record findings of a juror’s demeanor where the prosecutor justifies the strike based on demeanor alone.”  Further, the record made it clear that the district court found the prosecutor’s demeanor-based justification credible.  After considering the strikes of all five jurors, the panel affirmed the denial of Thompson’s Batson challenge.

The panel also affirmed Thompson’s conviction, finding the evidence was sufficient to show he was part of the conspiracy and used weapons in furtherance of it.  Thompson complained that the only evidence connecting him to the conspiracy was the testimony of co-conspirators.  The panel found, however, that Thompson failed to show such testimony was factually insubstantial or incredible.  See United States v. Medina, 161 F.3d 867, 872-73 (5th Cir. 1998) (“As long as it is not factually insubstantial or incredible, the uncorroborated testimony of a co-conspirator . . . may be constitutionally sufficient evidence to convict.” (internal quotation and citation omitted)).