§ 2L1.2 COV Enhancement Applies to Conspiracy to Commit Murder Without Overt Act Element

United States v. Pascacio-Rodriguez, No. 12-40264 (5th Cir. Apr. 11, 2014) (Wiener, Dennis, Owen)

The panel concludes “that conspiracy to commit murder, within the meaning of Application Note 5 of § 2L1.2, does not require an overt act as an element of the offense.”

Pascacio-Rodriguez pleaded guilty to illegal reentry after being convicted in Nevada for conspiracy to commit murder in 2003.  He appealed the application of the 16-level enhancement for a crime of violence conviction under U.S.S.G. § 2L1.2, arguing that the Guidelines refer to the generic definition of “conspiracy” which requires an overt act and that the Nevada murder conspiracy is broader than the generic definition because it does not require proof of an overt act.

As a preliminary matter, the panel recognizes that, under Descamps, it does not matter that Pascacio was actually charged with and pleaded guilty to overt acts since the Nevada statute does not require proof of an overt act.  Accordingly, the panel cannot resort to the modified categorical approach and must determine whether or not conspiracy to commit murder for purposes of § 2L1.2 requires an overt act.

“Neither ‘conspiracy’ nor ‘murder’ is defined by the Guidelines.”  Nonetheless, the panel concludes that “[t]he language and context of § 2L1.2 indicate that an overt act is not required for a conspiracy to commit murder.” 

Alternatively, the panel concludes “that the generic, contemporary meaning of ‘conspiracy to commit murder’ does not require an overt act.”  Since conspiracy to commit murder was defined at common law, the panel employs a common sense approach based on the generic, contemporary meaning of the terms in the Guidelines.  “At common law, it was not necessary to allege or prove an act in furtherance of a conspiracy.”  The panel surveys federal conspiracy laws and determines that a majority do not require an overt act.  The Model Panel Code does not require an overt act for first- or second-degree felonies such as murder, but a majority of states require an overt act as an element of all criminal conspiracies.  “After surveying the various sources typically consulted in applying the categorical approach, it appears to us that, albeit slight, the weight of authority indicates that conspiracy to commit murder does not require an overt act as an element.”

Note: This decision does not mean that an overt act is unnecessary for every conspiracy analyzed under § 2L1.2.  The analysis throughout the decision was contingent on conspiracy to commit murder.  Conspiracy to commit other offenses would need to be analyzed separately. 

Can Raise Padilla Claim in Motion to Withdraw Guilty Plea; Counsel Has Duty to Advise of Certain Deportation Consequence

United States v. Urias-Marrufo, No. 13-50085 (5th Cir. Feb. 28, 2014) (Davis, Garza, Dennis)

The panel rules that defendants can raise ineffective assistance of counsel claims for counsel’s failure to explain immigration consequences of the plea as required by Padilla v. Kentucky, 559 U.S. 356 (2010). 

The panel applies the seven-factor Carr test for determining whether a plea should be withdrawn under Rule 11.  In Urias’ case, the panel finds that she received close assistance of counsel, which is different than receiving effective assistance of counsel.  However, the factor of whether or not her guilty plea was knowing and voluntary is “inextricably tied to her ineffective assistance of counsel claim under the Sixth Amendment” since “she must understand the consequences of her plea.” 

The panel then applies the two-prong Strickland test to resolve this question, determining whether counsel’s representation fell below an objective standard of reasonableness and whether there is a reasonable possibility the result of the proceeding would have been different but for counsel’s errors.  The panel phrases the duty announced in Padilla to be for counsel “to warn of certain immigration consequences.”  The magistrate judge’s inquiry during the plea colloquy whether Urias “understood that there might be immigration consequences and that she and her attorney had discussed the possible adverse immigration consequences of pleading guilty” is irrelevant.  Since the district court did not make findings regarding Urias’ Padilla claim, but instead concluded that it could not address it, the panel remands for further proceedings.

Judge Garza writes a special concurrence joining the holding “that a district court must consider a Padilla claim that is sufficiently presented, both legally and factually, as part of a  Rule 11 motion to withdraw a plea.”  He does not read the majority to hold, however, that “Padilla requires counsel to advise that deportation is a certain consequence of a guilty plea.”  Judge Garza believes the real holding of Padilla is that counsel must inform a client whether the plea carries a risk of deportation, and that the scope of the Padilla duty is an open question that need not be resolved in this appeal.

SCOTUS: Counsel Ineffective If Does Not Understand Resources Available to Hire Expert

Hinton v. Alabama, No. 13-6550 (U.S. Feb. 24, 2014) (per curiam)

Hinton’s guilt hinged on ballistics evidence and one eyewitness who identified Hinton as the person who robbed his restaurant and tried to kill him in 1985.  The State’s Department of Forensic Sciences concluded that the six bullets all came from the Hinton’s gun.  Hinton’s attorney filed a motion for funding to hire an expert witness.  The trial judge granted $1000, stating that he did not know how much he could grant, thinking that it was $500 per case, and instructing the attorney to file another form if he needed additional experts.  In fact, there was not a statutory cap of $500 per case at the time of the trial; the law allowed for reimbursement for “any expenses reasonably incurred.”  Hinton’s attorney never asked for more funding, though.  Instead, he found an expert for $1000, recognizing that the expert did not have the expertise that the attorney thought he needed but thinking that was the best he could afford.  The prosecutor badly discredited the expert on cross-examination due to the expert’s lack of experience.

In his postconviction petition, Hinton produced three new experts who all examined the physical evidence and testified that they could not conclude that any of the six bullets had been fired from Hinton’s gun.  The circuit court denied the petition on the ground that Hinton was not prejudiced by the trial expert’s alleged poor performance because the trial expert’s testimony did not depart from what the postconviction experts said.  On remand from the Alabama Supreme Court, the circuit court also held that the trial expert was qualified to testify as a firearms and toolmark expert.

The Supreme Court finds that “[t]he trial attorney’s failure to request additional funding in order to replace an expert he knew to be inadequate because he mistakenly believed that he had received all he could get under Alabama law constituted deficient performance.”  The inadequate assistance was not hiring “an expert who, though qualified, was not qualified enough. . . . The only inadequate assistance of counsel here was the inexcusable mistake of law—the unreasonable failure to understand the resources that state law made available to him—that caused counsel to employ an expert that he himself deemed inadequate.”  The Court remands for reconsideration of whether the attorney’s deficient performance was prejudicial.

More analysis available on SCOTUSblog.com.

SCOTUS: Randolph Does Not Apply When Person Objecting to the Search Not Physically Present

Fernandez v. California, No. 12-7822 (U.S. Feb. 25, 2014) (Majority: Alito, Roberts, Scalia, Kennedy, Thomas, Breyer; Concurrences: Scalia, Thomas; Dissent: Ginsburg, Sotomayor, Kagan)

This decision does not change the law in the Fifth Circuit.  See United States v. Cooke, 674 F.3d 491, 498 (5th Cir. 2012).  It describes Georgia v. Randolph, 547 U.S. 103 (2006) as a narrow exception to the rule that police officers may search jointly occupied premises if one of the occupants consents.  Under Randolph, consent of one occupant is insufficient when another occupant is present and objects to the search.  Fernandez holds that the person objecting to the search must be physically present; otherwise, Randolph does not apply.

In Fernandez, the police officers removed the objecting occupant by arresting him for suspected assault.  They later returned to the apartment and obtained consent from the remaining occupant (the abused woman) to search the premises is valid.  The Court interprets the dictum in Randolph that consent by one occupant might not be sufficient if “there is evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection” to only apply to removals that are not objectively reasonable.  The Court holds “that an occupant who is absent due to a lawful detention or arrest stands in the same shoes as an occupant who is absent for any other reason.” 

The Court also rejects Fernandez’s argument that his objection when he was physically present remained effective until he changed his mind and withdrew his objection.  The Court explains that this argument cannot be squared with widely shared social expectations or customary social usage on which Randolph relied.  The Court claims that it would also result in the “practical complications that Randolph sought to avoid,” by inviting other questions such as duration of the objection.

In his concurrence, Scalia addresses the Fourth Amendment argument under property law, finding that there was no violation because a guest of one tenant does not trespass simply because the other tenant forbids the guest from entering.  He also agrees with Thomas that Randolph was wrongly decided.

Thomas writes separately to “make clear the extent of [his] disagreement with Randolph.”  “[N]o Fourth Amendment search occurs where . . . the spouse of an accused voluntarily leads the police to potential evidence of wrongdoing by the accused.”

The dissent emphasizes the importance of the warrant requirement and drawing only narrow exceptions to it: “[T]he Framers saw the neutral magistrate as an essential part of the criminal process shielding all of us, good or bad, saint or sinner, from unchecked police activity.”  “Instead of adhering to the warrant requirement, today’s decision tells the police they may dodge it, nevermind ample time to secure the approval of a neutral magistrate.”

More analysis available on SCOTUSblog.com.

Unambiguous Waiver of Right to Appeal Sentence Despite Parties’ Intentions Otherwise and Judge’s Comments that Defendant Could Object to Enhancement

United States v. Rodriguez-Estrada, No. 12-40629 (5th Cir. Jan. 31, 2014) (Stewart, Jolly, Smith)

The panel holds that Rodriguez’s challenge to the 16-level enhancement to his illegal re-entry sentence was encompassed within his appeal waiver. The plea agreement waived the “right to appeal the sentence imposed or the manner in which it was determined on any grounds set forth in Title 18 U.S.C. § 3742” and the right to contest the conviction or sentence, “including but not limited to Title 28, U.S.C. § 2255.”  During the plea hearing, the magistrate judge incorrectly informed Rodriguez that he retained the right to assert an ineffective assistance of counsel claim and a prosecutorial misconduct claim.  After Rodriguez stated that he wished to reserve his right to object to the characterization of his New Jersey conviction as a crime of violence, the magistrate judge responded that he reserved that right.  At sentencing, the district court overruled his objection and found that the conviction was a crime of violence.  The Government moved for a 2-level downward departure pursuant to the plea agreement, and the district court acknowledged that it chose to impose a 37-month sentence because Rodriguez gave up his right to appeal.

On appeal, Rodriguez did not allege that his appeal waiver was unknowing and involuntary, but he argues that neither he nor the government intended to include the characterization of his prior New Jersey conviction within the purview of the appeal waiver.  However, “courts ‘will not read ambiguity into an agreement in which none readily manifests itself.’”  Absent evidence that the parties intended “non-natural definition, we apply the term’s usual and ordinary meaning.’” 

The panel finds that the “appeal waiver explicitly and unambiguously encompassed ‘the right to appeal the sentence imposed” on any grounds set forth in § 3742.  The magistrate judge’s statement at the plea hearing just permitted Rodriguez to raise the objection during sentencing; “it did not carve out an exception to the appeal waiver.”  Since the panel finds that he waived his right to raise the issue on appeal, the panel does not address his challenge regarding his sentence.

5th Circuit Abandons “Equipoise Rule” for Reviewing Sufficiency of Evidence

United States v. Vargas-Ocampo, No. 11-41363 (5th Cir. Mar. 26, 2013) (en banc)

When examining the sufficiency of evidence supporting a criminal conviction, the Fifth Circuit no longer refers to the “equipoise rule.”  Vargas-Ocampo defines the “equipoise rule” as requiring reversal of a conviction if the evidence construed in favor of the verdict “gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence of the crime charged.”  The majority holds that the “equipoise rule” is not helpful in applying the Supreme Court’s standard prescribed in Jackson v. Virginia, 443 U.S. 307, 319 (1979).  Jackson requires a reviewing court to affirm a conviction if, “after viewing the evidence and all reasonable inferences in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”  Applying that standard, the Fifth Circuit affirms Vargas-Ocampo’s conviction.  See previous post for a description of the panel’s decision.

Majority: Jones, Stewart, Jolly, Davis, Smith, Clement, Owen, Southwick, Higginson

Concurring in judgment only: Dennis, Prado, Elrod, Haynes, Graves

Judge King elected not to participate.

No Prejudice for § 2255 Based on Implausible Testimony that Would Have Appealed But For Counsel’s Deficient Performance

United States v. Bejarano, No. 12-10952 (5th Cir. Mar. 11, 2014) (King, Southwick, Graves) (per curiam)

The panel denied the habeas corpus petitions for ineffective assistance of counsel because, even if counsel did not sufficiently consult with the appellants about filing an appeal and had a duty to do so, the appellants did not show any prejudice.  “The record does not support a finding that there is a ‘reasonable probability that Appellants would have timely appealed but for their counsels’ deficient failure to consult[.]”

The appellants (husband and wife) pled guilty to conspiring to commit money laundering and waived their rights to contest their convictions and sentences except for claims of ineffective assistance of counsel.  They were both sentenced to 42 months’ imprisonment (below the advisory guideline range), but the district court allowed the wife to delay her prison term and return to China to care for her minor children until the husband, Bejarano, completed his prison term. 

To show prejudice, the appellants relied on their expression of interest to counsel in appealing and Bejarano’s testimony that he would have appealed.  Evidence of interest in appealing alone, however, is insufficient to establish that a defendant would have instructed his attorney to file an appeal but for the counsel’s deficient performance.  Roe v. Flores-Ortega, 528 U.S. 470, 486 (2000).  The district court found Bejarano’s testimony that he would have appealed to be “self-serving” and “implausible in light of the other evidence,” and the appellants did not argue that the district court’s findings were clearly erroneous.  Given that, and that the appellants waited nearly a year after sentencing to file their petitions, the panel found that they failed to show a reasonable probability they would have appealed but for counsels’ deficiency.

Conviction for Attempted Use of WMD Affirmed Despite Challenges to FISA Searches and “Some Preparations Taken Together” Jury Instruction

United States v. Aldawsari, No. 12-11166 (5th Cir. Jan. 23, 2014) (Reavley, Davis, Higginson)

The panel affirms Aldawsari’s conviction for attempted use of a weapon of mass destruction and sentence of life imprisonment.

Aldawsari appeals the denial of his motion to suppress evidence gathered pursuant to the Foreign Intelligence Surveillance Act (FISA). Under the Foreign Intelligence Surveillance Court of Review (FISCR), FISA searches do not violate the Fourth Amendment so long as they are at least partially motivated by a purpose to “protect the nation against terrorists and espionage threats directed by foreign powers” and are thus not performed with the “sole objective of criminal prosecution.” As a statutory matter, evidence can be collected during a FISA search where protection against terrorist threats is at least a “significant purpose” of the FISA search and admissible in a criminal prosecution.

Aldawsari argues that searches were not validly authorized under 50 U.S.C. § 1805 and § 1824. In particular, Aldawsari claims that the FISC failed to authorize a search upon a showing of probable cause to believe the searches’ target is “an agent of a foreign power” under 50 U.S.C. § 1801.  Aldawsari speculates that the government likely never made the requisite showing of any foreign power’s involvement since no evidence was presented during trial.

The panel, based upon a review of the classified materials in camera, finds that Aldawsari’s inference is incorrect. Moreover, the panel finds that the objective of the searches was not solely the criminal prosecution of the Aldawsari, but protecting the nation against terrorist threats.

Additionally, Aldawsari argues the jury instructions allowed Aldawsari to be convicted even though he had only performed “mere preparations” and never completed a “substantial step” toward committing the offense. The instruction in question states that “some preparations, when taken together with intent, may amount to an attempt.” The panel holds the instruction was proper since it directed the jury to look at the evidence, when “taken as a whole,” describing the preparation-attempt continuum. When read in context, the instruction adequately distinguishes between “mere preparation” and “some preparations” which “may amount to an attempt” so long as such “acts...clearly indicate a willful intent to commit a crime.” See United States v. Mandujana, 499 F.2d 370 (5th Cir. 1974).

Lastly, Aldawsari argues that the district court erred procedurally and substantively in imposing a life sentence. First, Aldawsari claims the district court erred when it applied the § 2K1.4 cross-reference to the guidelines for “attempted murder” because it is unclear whether Aldawsari ever identified a final bombing target. The panel finds there is no authority that requires a finding of a clear targeted victim, location or facility to apply § 2K1.4. See United States v. Polk, 118 F.3d 286, 297-98 (5th Cir. 1997). Second, the panel overrules Aldawsari’s objection that the district court erred when it applied § 3C1.1 adjustment for obstruction of justice based on its finding that Aldawsari feigned mental illness according to a physician’s report. Finally, the panel overrules Aldawsari’s objection that the district court abused its discretion by imposing a substantively unreasonable term of imprisonment.

Thanks to FPD intern Linda Corchado for this post.

Section 922(g)(9) “Misdemeanor Crime of Domestic Violence” Only Requires Offensive Touching

United States v. Castleman, No. 12-1371 (U.S. Mar. 26, 2014) (Majority: Sotomayor, Roberts, Kennedy, Ginsburg, Breyer, Kagan; Concurring in part and in the judgment: Scalia; Concurring in the judgment: Alito, Thomas)

A person convicted of a “misdemeanor crime of domestic violence” is prohibited from possessing a firearm.  A “misdemeanor crime of domestic violence” is defined in part as an offense that “has, as an element, the use or attempted use of physical force, or threatened use of a deadly weapon, committed by a . . . person with whom the victim shares a child in common.”  18 U.S.C. §§ 921(a)(33)(A), 922(g)(9).  In Castleman, the Court had to define “physical force” and determine whether Castleman’s conviction of “intentionally or knowingly caus[ing] bodily injury to” the mother of his child, in violation of Tennessee Code § 39-13-111(b), made him a prohibited person under § 922(g)(9). 

Castleman successfully argued before the district court and the Sixth Circuit that his conviction was not a “misdemeanor crime of domestic violence” because one can cause bodily injury without “violent contact” with the victim.  The Sixth Circuit held that the degree of physical force required by § 921(a)(33)(A)(ii) is the same as that required by the Armed Career Criminal Act (“ACCA”), § 924(e)(2)(B)(i), which defines “violent felony” and was addressed by the Supreme Court in Johnson v. United States, 559 U.S. 133 (2010).  In Johnson, the Court held that “physical force” as used to define a “violent felony” does not mean battery or offensive touching but must mean “violent force.”

The Supreme Court reverses.  The majority holds that “physical force” as used in § 921(a)(33)(A)(ii) has the common-law meaning of physical force, which is essentially battery or offensive touching.  The Court reasons that the common-law definition applies because, unlike the term “physical force” in the ACCA, there is no indication that Congress did not intend to incorporate the common-law term of “physical force” in the definition of misdemeanor crime of domestic violence.  To support this, the majority points out that perpetrators of domestic violence are routinely convicted under assault or battery laws, that the term “domestic violence” does not necessarily connote a substantial degree of force, that it makes sense to group domestic abusers convicted under generic assault or battery offenses with the others listed in § 922(g) who can’t possess guns, and that construing the term otherwise would have rendered § 922(g)(9) inoperable in at least ten states.

The majority then applies this definition of “physical force” to Castleman’s offense and finds that “the knowing or intentional causation of bodily injury necessarily involves the use of physical force,” offensive touching.   

In his concurrence, Scalia applies the Johnson definition of “physical force,” meaning “force capable of causing physical pain or injury to another person,” but still finds that Castleman’s offense would necessarily involve the use of violent force.  He thinks that the term “physical force” should mean the same thing in § 921(a)(33)(A)(ii) as in § 924(e)(2)(B)(i) and systematically rejects each of the majority’s reasons for distinguishing the terms.

Alito writes separately to voice his disagreement with the Johnson majority, as he believes “physical force” in both statutes should be given the common-law meaning of battery.

More info: http://www.scotusblog.com/case-files/cases/united-states-v-castleman/

“Willfulness” Instruction that Did Not Include that Good-Faith Belief Could Be Unreasonable or Irrational Was (Harmless) Error

United States v. Montgomery, No. 12-20741 (5th Cir. Mar. 28, 2014) (Jones, Elrod, Haynes)

The Montgomerys were convicted of conspiracy to avoid federal income tax and of filing false tax returns.  On appeal, they argued that the district court incorrectly instructed the jury on the willfulness element of the charged tax offenses.  The panel finds that the court erred but that the error was harmless.

Both parties requested jury instructions on “willfulness” pursuant to Cheek v. United States, 498 U.S. 192 (1991), asking that the jury be instructed in part:

A defendant does not act willfully if he believes in good faith that his actions comply with the law. . . . If you find that the defendant honestly believed that he was not violating the tax laws, even if that belief was unreasonable or irrational, then you should find the defendant not guilty.

Over the Montgomerys’ objection, the district court instructed the jury that it must acquit if the Montgomerys acted in good faith, but it did not say—as both parties had requested—that their beliefs could be “unreasonable or irrational.”  The panel finds that the jury instruction given did not correctly reflect the issues and the law since the jury could acquit the Montgomerys if it found that the Montgomerys “truly believed that they were not obligated to report their income, . . . however objectively unreasonable [that] belief was.”  As given, the instructions suggest that the good faith belief must be objectively reasonable.  While a court need not always instruct the good-faith defense, when it does, it must explain that the good-faith belief need not be objectively reasonable.  The error was harmless, though, given the overwhelming evidence that the Montgomerys intentionally underreported their income.

The Montgomerys also argued that, in sentencing, the district court could have calculated a more accurate tax loss resulting from the offenses because the IRS agent’s figures did not take into account the business expenses associated with underreported gross receipts.  Instead, the IRS agent multiplied the underreported gross receipts for each year by a tax rate of 28% pursuant to U.S.S.G. §2T1.1(c) cmt. n.(A).  The panel affirmed the calculation holding that, under Fifth Circuit precedent (circuit split), unclaimed deductions that could have been legitimately claimed do not get counted against the tax loss on a fraudulent return and that, even if they did, the Montgomerys’ evidence was unreliable to do so since it was based on estimates.