Tuesday, November 27, 2007

Cool (and Free) Online Legal Resources

Eugene Volokh hips us to a treatise published by the Congressional Research Service: The Constitution of the United States of America, Analysis and Interpretation: Analysis of Cases Decided by the Supreme Court of the United States. I've never heard of it before, so I can't vouch for it. But Professor Volokh endorses it: "Though it has its limitations, it's generally a very useful resource -- and, it seems to me, a highly underpromoted one."

And speaking of the Constitution, have you ever found yourself imploring, "My kingdom for an online copy that allows paragraph-level permalinking!" Of course you have. And here it is. There's also the Declaration of Independence, the Articles of Confederation, and a searchable version of the Federalist Papers. (Hat tip: Randy Barnett.)


Monday, November 26, 2007

Speedy Trial Act Claims Rejected in Katrina-Related Fraud Case

United States v. Green, No. 07-60184 (5th Cir. Nov. 9, 2007) (Reavley, Smith, Garza)

Green rejects a couple of novel (in the Fifth Circuit) Speedy Trial Act arguments, but doesn't completely close the door on one of them. All of you STA mavens out there will definitely want to read on to find out what this font of future litigation might be.

In September 2005, in the wake of Hurricane Katrina, Green fraudulently obtained a Red Cross debit card. The next day he used that debit card and a counterfeit Social Security card to get into a Red Cross hurricane shelter. Green was arrested when he refused to leave the shelter, and held on a variety of state charges. The sheriff's office contacted the local U.S. Attorney, who asked the state authorities to hold off on interviewing Green until he had a chance to review the case. A few weeks later, a Social Security Administration agent attempted to question Green in connection with an SSA investigation into the case. Green refused to talk to the agent, who made no further attempt to contact Green.

In June 2006, Green was indicted for two counts of wire fraud and one count of misuse of a Social Security number. He was arrested on the federal charges a week after the return of the indictment. A few months later, the Government filed a "Motion for Special Trial Setting" because the Speedy Trial Act clock was about to expire. Green eventually pled guilty to all three charges in December 2006.

Green's appeal raised a couple of Speedy Trial Act issues that the Fifth Circuit hadn't yet confronted. The first issue was whether the Government's "Motion for Special Trial Setting" tolled the STA's 70-day indictment-to-trial clock under 18 U.S.C. § 3161(h)(1)(F), which excludes "delay resulting from any pretrial motion[.]" Green argued, based on the language of (h)(1)(F), "that the motion did not toll the clock because the Government failed to demonstrate that its motion 'result[ed]' in any pretrial delay." Following the lead of eleven other circuits, and rejecting some dicta to the contrary from a Fifth Circuit case, the court held that "under 18 U.S.C. § 3161(h)(1)(F), any pretrial motion, including a motion to set a trial date, tolls the speedy trial clock automatically, and the Government is not required to prove that the motion actually delayed trial."

The second issue concerned the 30-day arrest-to-indictment deadline under § 3161(b). The Fifth Circuit has held that the 30-day clock doesn't start running until a person is arrested for the purpose of answering federal charges. But of all places the Fourth Circuit has held, in United States v. Woolfolk, that there are "limited circumstances" in which a state arrest can trigger the § 3161(b) deadline:
[Woolfolk] reasoned that “something other than actual federal custody and federal arrest” can trigger the Speedy Trial Act, namely, “any restraint resulting from federal action.” Therefore, the court stated: “[W]e believe that a ‘restraint resulting from federal action,’ sufficient to trigger the time limits of the Speedy Trial Act, occurs when the Government [knew or should have known] that an individual is held by state authorities solely to answer federal charges.”
(internal citations shorn). The court declined to decide whether Woolfolk is right about all that, holding that even if the Woolfolk standard applied here, Green did not satisfy it. The court concluded, with little analysis, that neither the U.S. Attorney's request to hold off on interviewing Green until it could review the case, nor the SSA's investigation, "establish[ed] either that (a) Green was being held solely to answer federal charges or that (b) even if he was, the Government knew or should have known about it."

So although the first issue is now settled, consider the second one open.

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Documents Established That FL 2d Degree Burglary Conviction Was for "Burglary of a Dwelling" & Thus a §2L1.2 COV

United States v. Castillo-Morales, No. 07-40053 (5th Cir. Nov. 8, 2007) (Jones, DeMoss, Stewart)

Under the categorical approach, a court is generally precluded from relying on documents such as complaint applications when determining whether a prior conviction was for a generic offense, such as burglary. That's the holding of Shepard v. United States. But what if the record from the prior conviction shows that the defendant admitted that the facts alleged in the complaint were true? In that case, the complaint is fair game. That's the holding of Castillo-Morales.

Castillo, who pled guilty to illegal reentry, had a prior Florida conviction for second degree burglary. The Florida statute applies to "dwellings," among other things, and the term "dwelling" includes the building itself, as well as the building's curtilage. In United States v. Gomez-Guerra, the Fifth Circuit held that Florida's burglary statute is broader than generic "burglary of a dwelling" for purposes of guideline §2L1.2's 16-level "crime of violence" definition because the generic offense doesn't encompass entries into curtilage.

But that didn't end matters here. The "adjudicative records" from the burglary conviction showed that
Castillo stipulated to “a factual basis” for his offense, and he similarly stipulated based on “documents in the court file, including the complaint affidavit(s).” The “798 Charging Affidavit” includes an admission from Castillo’s accomplice and co-defendant Escoto, which states he and Castillo “entered the residence through an unsecured kitchen window” (emphasis added). The charging affidavit also indicates that after the investigator spoke with Escoto, Castillo “also confessed to the Burglary.”

Castillo argued that the plea colloquy did not establish that he admitted entering a residence because it did not specifically identify the "798 Charging Affidavit," as opposed to some other document in the court file, as the basis for his guilty plea. Thus, according to Castillo, the state court record did not support a finding that he entered a residence rather than simply the curtilage of a residence.

The court rejected what it characterized as Castillo's request for "a new rule requiring that when a defendant stipulates that 'a factual basis' for his offense is found in 'court documents,' the specific facts assented to by the defendant, or the specific document that served as the factual basis for the plea, must be exactly identified in the record." It concluded that Shepard v. United States "requires no such rule." Instead, the court held that "when a defendant stipulates that 'a factual basis' for his plea is present in 'court documents,' courts may use any uncontradicted facts in those documents to establish an element of a prior conviction." Since Castillo's stipulation revealed that he actually entered a residence, his offense constituted generic burglary of a dwelling and he was subect to the 16-level COV enhancement under §2L1.2.

Note that there may still be room for an argument even if the record from a prior conviction contains a stipulation similar to the one in Castillo's case. For example, there may be something about the record as a whole that creates some ambiguity as to the exact factual basis for the conviction, or it may identify the relevant documents with greater specificity that the stipulation here. Castillo-Morales doesn't look like it would be controlling in such instances.

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Search & Seizure Outline from the Oregon Federal Public Defender

As the Ninth Circuit Blog reports:
The November 2007 version of Developments in Federal Search and Seizure Law is now available on the Oregon Federal Public Defender website here. We have been collecting Fourth Amendment cases for over ten years, integrating defense wins into an outline that provides counterpoints to the trends away from protection of individual rights. The outline is getting pretty long, and we have added a table of cases on the recommendation of users who wanted to be able to go directly to the name of a case.

The outline is pretty Ninth-Circuit-centric, but it may still have some useful stuff for those of us on the third coast.


Thursday, November 08, 2007

District Court May Not Grant New Trial On Ground Not Raised in Defendant's Rule 33 Motion

United States v. Nguyen, No. 06-20598 (5th Cir. Nov. 7, 2007) (per curiam) (Benavides, Clement, Prado)

At the closing arguments during Nguyen's trial for possession of cocaine with intent to distribute, the Government made an argument during rebuttal that it had not made in its opening argument, and that Nguyen had not addressed during his argument. The court granted Nguyen surrebuttal so he could respond to the new argument. The jury found him guilty.

Nguyen filed a post-trial Rule 33 motion for new trial on the basis of newly discovered evidence. The district court granted the motion, but not on that basis. Instead, the court granted a new trial in the interest of justice, concluding that the Government violated Rule 29.1 by raising a new argument during rebuttal, and that Nguyen did not have an adequate opportunity to address that new argument, notwithstanding the court's grant of surrebuttal.

The Government appealed, arguing that a district court cannot grant a new trial on a ground not raised in a defendant's Rule 33 motion. This was an issue of first impression in the Fifth Circuit, and the court chose to adopt the reasoning of United States v. Newman, a Third Circuit case which held that "a district court is without the authority to grant a motion for new trial on a basis not raised by the defendant."
In making this determination, the court was persuaded, at least in part, by amendments to the rules pertaining to motions for new trial in both the federal criminal and civil rules of procedure. At the same time the drafters amended the criminal rule by adding the words “on motion of a defendant” to Rule 33, they expanded the district court’s power to grant a new trial in civil cases, specifically stating in Rule 59(d) of the Federal Rules of Civil Procedure that a new trial could be granted for “a reason not stated in the motion.” The Third Circuit reasoned that the drafters would have inserted similar language in the criminal rules if they intended a district court to have the power to grant a new trial on a basis not stated in the motion for new trial. We find that reasoning persuasive and hold that a district court does not have the authority to grant a motion for a new trial under Rule 33 on a basis not raised by the defendant.

(internal citations omitted). The Third Circuit also noted that "the '[c]ourts have recognized a few narrow exceptions' to this rule, including allowing a district court to treat a motion for judgment of acquittal as a motion for a new trial if the arguments raised justified a new trial." But the Fifth Circuit declined to reach that issue here, concluding that "although Nguyen’s motion for judgment of acquittal makes a passing reference to the prosecutor’s improper argument, it does not sufficiently raise the issue as a basis for a new trial." It therefore reversed the order granting Nguyen a new trial.


Wednesday, November 07, 2007

TX Injury to Child by Act is 18 U.S.C. § 16(b) COV, Because Of Substantial Risk Physical Force Against Person Will Be Used In Course of Committing It

Perez-Munoz v. Keisler, No. 06-60440 (5th Cir. Nov. 6, 2007) (Jolly, Davis, Wiener)

The Texas Penal Code has an offense called "Injury to a Child," which is defined as intentionally, knowingly, or recklessly causing bodily injury to a child, either by act or omission. In United States v. Gracia-Cantu, the Fifth Circuit held that injury by omission is not a "crime of violence" under 18 U.S.C. § 16(b), which includes felony offenses that by their nature "involve[] a substantial risk that physical force against the person . . . of another may be used in the course of committing the offense." Gracia-Cantu reasoned that because injury by omission can be committed by withholding food or medical care from a child, it does not necessarily involve a substantial risk of the use of physical force in order to commit the offense.

Perez-Munoz addresses the question Gracia-Cantu didn't: is injury by act, rather than by omission, a COV under § 16(b)? It answers that question "yes," relying on dubious reasoning.

Perez argued that injury by act can be committed by intentional acts that don't necessarily involve a substantial risk of physical force, such as by poisoning a child's food or drink. The court didn't disagree, but held that such a possibility is beside the point. Rather than relying on cases interpreting § 16(b)'s "substantial risk that physical force against [another] person . . . may be used in the course of committing the offense," the court cited cases interpreting the "serious potential risk of physical injury to another" language found in the ACCA's "violent felony" definition and guideline §4B1.2's "crime of violence" definition, including the Supreme Court's decision last term in James v. United States. From those cases, the court concluded that
[e]very intentional act causing injury to a child need not be violent for a violation of this part of the pared-down statute to be a crime of violence by its nature. As the Supreme Court stated in James: “[T]he proper inquiry is whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another.” James, 127 S. Ct. at 1597 (emphasis added).

The court also said, without citing any authority, that
[a]lthough it may be possible to commit this offense by intentional act without the use of physical force (such as by placing poison in a child’s food or drink), this is not the ordinary, usual way the crime is committed. The crime, when committed by an act, is usually committed with the use of some force, or at least through conduct that presents the substantial risk that force may be used.

There are a couple of problems with the court's reasoning. First, it comes very close to eliding the critical difference between the § 16(b) risk-of-force language and the ACCA's and guideline §4B1.2's risk-of-injury language. One focuses on acts, while the other focuses on results, and that distinction can make all the difference in the world. Prior Fifth Circuit cases have avoided conflating the two types of risk. See, e.g., United States v. Houston, 364 F.3d 243, 247 n.5 (5th Cir. 2004).

Second, the risk-of-injury language does not exist in a vacuum in the ACCA or guideline §4B1.2. Instead, it's part of an "otherwise clause" that arguably should be read to include only offenses that entail a risk similar to that presented by specifically enumerated offenses found in those definitions (such as arson or extortion). Section 16(b), unlike §4B1.2 or the ACCA, does not list any specific COV's, so its risk clause lacks the same context found in those other two definitions. Thus, it's far from clear that ACCA or §4B1.2 cases are equally applicable to § 16(b) on the risk question.

Finally, keep in mind that there's a good chance the Supreme Court will provide some further guidance on the meaning of the ACCA's "otherwise clause" when it decides Begay v. United States later this term. The Court's decision in Begay may impact the shelf life of Perez-Munoz.

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Tuesday, November 06, 2007

More News On Operation Streamline

The Dallas Morning News reports here on the commencement of Operation Streamline in Laredo. The story covers much of the same ground as the articles mentioned here, but it's still worth a look-see.

Also, the Arizona Republic reports that Operation Streamline, which has been in effect in the Yuma sector for a while now, may be expanded to the rest of Arizona. There's a substantial Fifth Circuit angle, though, because most of the article is about how Operation Streamline has been going in Del Rio.

Links via Bender's Immigration Bulletin - Daily Edition.


Monday, November 05, 2007

Ninth Circuit Addresses Sell; Takes Somewhat Different View Than Fifth Circuit

Let's jump in the way-back machine for a short trip to last week, when the Fifth Circuit addressed the standard of review for Sell orders (that a defendant be involuntarily medicated to restore his competency to stand trial) in United States v. Palmer. It turns out that the Ninth Circuit issued an opinion that same day adressing the very same issue: United States v. Hernandez-Vasquez, No. 06-50198 (9th Cir. Oct. 31, 2007) (Fisher, Clifton, Fogel, D.J.).

As you might imagine, Hernandez-Vasquez's analysis differs in some important respects from that found in Palmer. For example, it held that when evaluating the seriousness prong of the 4-part test, a court should start by looking at the likely guideline range that the defendant will face if he's convicted, rather than the statutory maximum for the offense. Palmer, on the other hand, said the statutory maximum is more relevant than the guideline range.

See the Ninth Circuit Blog's summaries of Hernandez-Vasquez (here and here) for a more detailed discussion of the case, and keep it in mind if you find yourself dealing with the issue.

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Thursday, November 01, 2007

Happy Guidelines Day! (Hope You Saved Some of Your Halloween Candy to Celebrate With)

It's November 1st, and you know what that means: new Guidelines! The Sentencing Commission has helpfully posted on its website the 2007 version of the Guidelines Manual, as well as a reader-friendly redline version of the amendments taking effect today. Highlights include changes to the crack guidelines, and to the "related cases" determination under Chapter 4. And over at fd.org, there's this helpful analysis of the 2007 amendments. FAMM's also in the fray here, here, and here.

The excitement continues later this month when the Sentencing Commission holds a hearing on whether to make the crack amendments retroactive. For more on that, follow the links on the front page of the Commission's website.

Of course, the real question that's got everyone buzzing is this: what color will the new Guidelines Manual be? Make your predictions in the comments. I say green and gold.


Panel Withdraws Opinion Holding that GA Meth "Trafficking" is a 2L1.2 DTO, But Holds That State Guilty Plea Admitted Conduct That Is a DTO

United States v. Gutierrez-Bautista, No. 06-40486 (5th Cir. Oct. 31, 2007) (Smith, Weiner, Owen)

The court first decided this case back in July. Gutierrez, who pled guilty to illegal reentry, had a prior Georgia conviction for "trafficking" in methamphetamine. Although the state statute is captioned "trafficking," it includes simple possession, as long as the amount of meth exceeds 28 grams. The first time around, the court held that the state statute was categorically a "drug trafficking offense" under guideline §2L1.2, reasoning that the statute infers an intent to distribute from the quantity of meth possessed. For reasons explained here, that decision was incorrect, and its reasoning conflicted with several unpublished decisions interpreting a similar statutory scheme from another state. The panel has now withdrawn its original opinion, albeit without explaining why, and substituted a new one in its stead that affirms the sentence based on different reasoning.

Gutierrez had pled guilty to an indictment that alleged that he both sold and possessed more than 28 grams of meth. Under the recent decision in United States v. Morales-Martinez, the court must look to state law to determine the effect of the guilty plea. Georgia law allows conjunctive pleading and disjunctive proof, so because the indictment alleged that Gutierrez sold and possessed meth, the state could have proven the offense by showing that he either sold or possessed meth. But according to the court, "Georgia law establishes that a guilty plea admits all averments of fact in the indictment or accusation." (emphasis added). Thus, "[u]nder Georgia law, [Gutierrez's] guilty plea admits that he both sold and possessed the drug." And since selling drugs is a DTO, the enhancement applied.

The court also rejected Gutierrez's Apprendi challenge to the § 1326(b) enhancement, stating (incorrectly) that the Supreme Court reaffirmed Almendarez-Torres in James v. United States, and (correctly) that "[s]ince James, this court has said that arguments like Gutierrez-Bautista’s 'will be viewed with skepticism, much like arguments challenging the constitutionality of the federal income tax' and that 'this issue is "fully foreclosed from further debate."'" That's Pineda-Arrellano, of course, and the cert petition in that case is still pending. The Court requested a response from the Solicitor General, and that's currently due by November 14th.

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Court Adopts Standard of Review for Appeal from Order That Defendant Be Involuntarily Medicated to Restore Competency to Stand Trial

United States v. Palmer, No. 06-31018 (5th Cir. Oct. 31, 2007) (Garwood, Jolly, Stewart)

Palmer appealed an order that he be forcibly medicated with Haldol to restore his competency so he could stand trial on a charge of possession of a firearm by a person adjudicated mentally defective. (Haldol is a powerful anti-psychotic drug with some very unpleasant side effects.)

As the court explains,
In Sell v. United States, the Court explained that the involuntary medication of a defendant solely to render him competent to stand trial for a serious, but nonviolent, crime is permissible in rare circumstances, “but only if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the fairness of the trial, and taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related interests.” 539 U.S. 166, 179 (2003). The Court declared that lower courts, when making such a determination must consider four factors: (1) whether important governmental interests are at stake; (2) whether involuntary medication will significantly further those interests; (3) whether involuntary medication is necessary to further those interests; and (4) whether the administration of the drugs is medically appropriate. Id.
The first order of business in Palmer was to determine the standard of review for Sell cases. The court followed the lead of the Second Circuit, which has held that factor one is reviewed de novo, while the other three factors are reviewed for clear error.

The court went on to affirm the order for involuntary medication. On the first factor, it held that the government's interest was important, based on the particular allegations in Palmer's case, as well as the maximum punishment for the offense. It observed that other courts have held that when evaluating the seriousness of the charged offense, which is relevant to this factor, a court should look at the statutory maximum for the offense, rather than the applicable guideline range, and that anything over six months is "serious."

On the second factor, the court acknowledged that Haldol produces strong side effects, and that newer medications don't have as many or as severe side effects. It nevertheless held that "while [Palmer] has demonstrated that the side effects will be unpleasant, he has not shown how his ability to assist in his defense will be substantially undermined by the medication." (I'm not a doctor, nor have I ever played one on TV. But the court seems to be downplaying the severity of Haldol's side effects, and their effect on a person's ability to assist in a defense. For example, one of the side effects is akathisia, which the opinion describes as "restlessness." According to the Wikipedia article, "High functioning patients have described the feeling as a sense of inner tension and torment or chemical torture from the inside out." Then again, the court probably doesn't want to get involved in second-guessing both the district court and medical professionals when it comes down to the choice of one drug over another.)

The third factor wasn't in dispute here.

Finally, on the fourth factor, the court observed that, "It is undisputed that other treatment options, such as psychotherapy or education would be ineffective in restoring Palmer’s competency." Palmer urged that he should be re-evaluated for civil commitment, and that he would likely be found not guilty by reason of insanity if he were made competent and brought to trial. The court acknowledged that "there is some force to Palmer's contentions," but nevertheless found no clear error in the district court's finding on this factor. It noted that he was already found to be an unsuitable candidate for civil commitment in 2004 (when he was evaluated for competency in connection with an earlier charge that was later dismissed). It also pointed out that even if Palmer never serves a day of prison time, Sell said that the government's interest is in bringing him to trial, not in seeing him convicted.

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