Tuesday, August 26, 2008

Crush of Immigration Prosecutions Coming to Mississippi?

See update below.

As the New York Times and AP report, ICE agents arrested 350 suspected illegal immigrants during a raid at an electrical equipment plant in Laurel, Mississippi, on Monday.

Although the NYT article states that no criminal charges had been filed as of Monday afternoon, such charges appear to be a possibility (especially if the recent mass prosecutions follwing the raid of a kosher meat plant in Postville, Iowa, are any indication). As an ICE statement quoted in the AP story said, "[t]he raid was executed based on 'evidence relating to aggravated identity theft, fraudulent use of Social Security numbers and other crimes, as well as a civil search warrant for individuals illegally in the United States[.]'"

So in the event that any of our readers get enlisted to represent defendants in a Postville Redux, now is as good a time as any to mention the circuit split brewing over the mens rea required for aggravated identity theft under 18 U.S.C. § 1028A(a)(1), a statute that featured prominently in the Postville prosecutions. Some circuits have held that the defendant must know that the means of identification belonged to a real person. Other circuits have disagreed, holding that a defendant need only know that he was using a means of identification. As near as I can tell, the Fifth Circuit has not addressed this question. For a thorough discussion of this issue, as well as others involved in identity theft prosections, see this excellent paper by Massachusetts AFPD Martin Richey. (N.B.: The paper is current through June 2008. Since then, two other circuits, the First and Ninth, have joined those holding that the defendant must have known the ID belonged to a real person.) You may also want to check out this cert petition asking the Supreme Court to resolve the matter.

For more about Postville (as a possible template for what may happen in Laurel), see:

  • a letter from an Iowa attorney describing a meeting with prosecutors, probation officers, marshals, and court folk concerning the 7-day exploding plea offers that the Government put on the table
  • the "manual" the Government distributed to defense counsel, consisting of plea colloquy scripts, statutes, sentencing guidelines, and other materials, and
  • an article about, and a paper from, an interpreter involved in the prosecutions who believes that many of the aliens who pleaded guilty did not actually understand what was going on.

8/27/09 UPDATE: According to this joint ICE/DOJ press release, 595 people were arrested at the plant, only 8 of whom are being charged criminally. "The criminal cases are focused on charges of aggravated identity theft."

Links via Bender's Immigration Daily and the Ninth Circuit Blog.


Monday, August 18, 2008

Fifth Circuit Rules Changes Concerning Attorney Admissions, Recording of Oral Arguments

Last Friday, August 15th, a couple of changes to Fifth Circuit Rules took effect. The change to Rule 34.7 (Recording of Oral Arguments) is discussed here. Rule 46.1, concerning admission and fees, was amended to add another another category of attorneys who are exempt from the admission fee (those who are "newly graduated from law school, licensed to practice in Louisiana, Mississippi, or Texas, and on orders for extended active duty in the Judge Advocate General's Corps.")

The order adopting the changes is available here.

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Thursday, August 14, 2008

Relevant Conduct Requires Specific Findings; No Per Se Rules for §2L1.1 Reckless Endangerment Enhancement

United States v. Garza, No. 07-40962 (5th Cir. Aug. 13, 2008) (Smith, DeMoss, Stewart)

Ever get the sense that in some courts the base offense level under guideline §2L1.1 is level 18? Then remember this case, because you'll probably want to cite it a lot. The opinion explains that there are no per se rules concerning the application of §2L1.1's reckless endangerment enhancement, and that simply transporting aliens through the sometimes harsh environment of South Texas simply isn't enough, in itself, to support the enhancement. And in a related holding applicable to a much broader range of cases, the opinion also explains the need for the district court to make specific findings before holding a defendant responsible for the conduct of others under the relevant conduct guideline. On to the facts . . .

Garza pleaded guilty to two counts of alien transportation after being caught with four illegal aliens in the cab of his pickup, only one of whom was in a seat. The two aliens whose testimony was offered to support Garza's guilty plea arrived in his truck via different routes. To simplify the facts somewhat, both aliens spent part of their journeys walking through the South Texas brush to circumvent Border Patrol checkpoints. Alien 1 got separated from his group, and joined Alien 2's group the next morning. The guide from the second group led them to Garza's pickup, and told them to get in. They were later arrested when Garza was pulled over by a sheriff's deputy for diving with an obstructed license plate.

The PSR hit Garza with the reckless endangerment enhancement under §2L1.2(b)(6) "on the grounds that Garza (1) transported unsecured aliens in his vehicle and had done so in the past and (2) subjected them to the hazardous conditions of the South Texas brush for more than a day."
The court overruled Garza’s objection to the reckless endangerment enhancement, adding, “The appellate court needs to recognize what’s happening down here and to protect the integrity of the guidelines by letting the courts examine the circumstances of this crime and making a ruling that this activity, and particularly in this case, is substantial [sic] risk of serious bodily harm.” Seeing this as an opportunityto get further instruction from this court, the district court added, “If [Garza] has a right to appeal, I want him to appeal it. I want the Court of Appeals to write on it so that we can get some appellate guidance.”

The court of appeals happily obliged, and vacated Garza's sentence. The court first explained that while guideline §1B1.3(a)(1)(B)---which imposes liability for the reasonably foreseeable conduct of others in furtherance of jointly undertaken criminal activity---casts a broad net, it is not limitless: "A district court may . . . exercise wide evidentiary latitude at sentencing and may look to the whole conspiracy to determine whether the acts of others were reasonably foreseeable, . . . but it must still make specific findings as to the scope of that conspiracy[.]"

In this case, that meant that Garza could be held responsible for the acts of the operation that brought Alien 2 to his truck, as the evidence clearly showed Garza was working with that operation. But Garza could not be held responsible for the portion of Alien 1's journey that occurred before Alien 1 joined the second group, because there was no evidence at all linking the two smuggling operations. "To hold Garza responsible for the actions of [Alien 1's] group would essentially impute to Garza the actions taken on behalf of every alien-smuggling operation. That would cast the net too widely; nor is this what is contemplated by the guidelines."

The court then moved on to hold that the district court erred in applying the reckless endangerment enhancement in this case, as it "premised its ruling on the notion that transporting aliens through the brush necessarily and always involves subjecting them to a substantial risk of death or serious bodily injury." As the court of appeals pointed out, not only does "our caselaw does not support establishing a per se rule that traveling through the South Texas brush creates a 'substantial risk of death or bodily injury[,]'" but "we have implied that we will not create such per se rules." In past cases affirming the enhancement, the court has looked at the entire picture surrounding the smuggling operation, rather than saying that traveling through the South Texas brush per se triggers the enhancement. The guideline also provides no support for a per se rule:

The only per se example given in the [guideline's] comment[ary] is the first, which covers transporting persons in a trunk or engine compartment of a vehicle. . . . Trunks and engine compartments are not designed to hold human passengers, so transporting someone in them is not safe. The South Texas brush, as inhospitable as it may be, cannot be analogized to trunks and engine compartments. As the district court acknowledged, people do live there.

The remaining examples are not per se rules, but flexible guidelines. The first example relates to “carrying substantially more passengers than the rated capacity of a motor vehicle or vessel.” . . . The operative word is “substantially.” It is not necessarily enough that a vehicle designed for four is carrying five. Probably carrying eight in the vehicle would be. But once again, the guidelines do not create hard and fast rules but are only guides that a district court must interpret in light of the situation before it.

The final example applies to “harboring persons in a crowded, dangerous, or inhumane condition.” . . . This example logically can be applied only to the specific facts of an individual case---the sentencing court must decide whether the conditions were “crowded, dangerous, or inhumane.”

It is not enough to say, as the district court did here, that traversing an entire geographical region is inherently dangerous. It must be dangerous on the facts presented and used by the district court. To the extent that the record supports any particularized findings, they were that the aliens were guided through the brush for about one day in late April and that the mean temperature was 87 degrees. The court did not specifically base its sentence on those facts but instead on the very fact of traveling through the brush.

(emphasis added). And that was error.

So the next time you get a PSR citing generalities about smuggling as support for the reckless endangerment enhancement, you'll have Garza to back you on your objection. Same for situations in which the PSR thinks a citation to §1B1.3 is a sufficient substitute for detailed facts when it comes to relevant conduct.

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Drug-Related Act Done With Knowledge That Drugs Are Intended for Sale Is §2L1.2 "Drug Trafficking Offense"

United States v. Fuentes-Oyervides, No. 07-41007 (5th Cir. Aug. 13, 2008) (per curiam) (Higginbotham, Stewart, Southwick)

Consider Ohio Rev. Code Ann. § 2925.03(A)(2), which "provides that no person shall knowingly '[p]repare for shipment, ship, transport, deliver, prepare for distribution, or distribute a controlled substance, when the offender knows or has reasonable cause to believe that the controlled substance is intended for sale or resale by the offender or another person.'" Is it a "drug trafficking offense" for purposes of the 12- and 16-level enhancements under guideline §2L1.2?

Fuentes argued that it's not, because some of the acts prohibited by the statute (preparing drugs for shipment, and shipping and transporting drugs) aren't listed in §2L1.2's DTO definition. He also argued "that a state conviction would not meet the alternative possession-with-intent clause of" the DTO definition because of different mens rea requirements: "the state statute only requires 1) knowledge or negligence, 2) as to another’s intent[,]" whereas §2L1.2 "requires that the offender actually intend to manufacture or distribute."

The court disagreed. It sided with a Tenth Circuit opinion holding that the Ohio statute need not be evaluated under the DTO definition's possession-with-intent prong because "an individual who prepares for shipment, ships, transports, delivers, prepares for distribution, or distributes a controlled substance while he knows or should know that the substance is intended for sale, commits an act of distribution under the Guidelines." In so holding, the court distinguished a couple of earlier Fifth Circuit decisions involving other state statutes:
  • United States v. Garza-Lopez. Held that California "transportation, sale, etc." isn't categorically a DTO because it includes transportation of drugs for personal use. Distinguishable because "the Ohio statute here does not criminalize mere personal use possession; it requires a level of understanding that the drugs are for sale or resale."
  • United States v. Lopez-Salas. Held that "a state’s presumption of intent to distribute – based upon the statute’s requirement that a large amount of drugs be transported – was not sufficient evidence of criminal intent to distribute for purposes of the Guidelines’ 'drug trafficking offense' adjustment." Distinguishable because the Ohio "statute at issue here explicitly includes a mens rea requirement concerning distribution."

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Wednesday, August 13, 2008

TX Delivery of Controlled Substance, Even If Based on Offer to Sell, Is "Serious Drug Offense" Under ACCA

United States v. Vickers, No. 07-10767 (5th Cir. Aug. 12, 2008) (Stewart, Owen, Southwick)

From the you-can't-tell-the-players-without-a-program files:

We know that the Texas offense of delivery of a controlled substance is neither a "drug trafficking" offense under guideline §2L1.2, nor a "controlled substance offense" under guideline §4B1.2(b), if the offense could have rested on the offer-to-sell alternative found in Texas's definition of "delivery." Which begs the obvious question: is it a "serious drug offense" for purposes of the Armed Career Criminal Act?

Yes, sayeth Vickers. Unlike the two guidelines definitions, which list specific acts that constitute a DTO or CSO, the ACCA's SDO definition extends to offenses "involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance . . . ." (emphasis added). "The word 'involving,'" the court says, "is an exceedingly broad term for a statute." And it's broad enough to encompass delivery by offer-to-sell:
The ACCA is intended to cover those individuals whose prior convictions indicate an “increased likelihood that the offender is the kind of person who might deliberately point the gun and pull the trigger.” Begay v. United States, 128 S. Ct. 1581, 1587 (2008). The expansiveness of the word “involving” supports that Congress was bringing into the statute’s reach those who intentionally enter the highly dangerous drug distribution world. Being in the drug marketplace as a seller – even if, hypothetically, the individual did not possess any drugs at that time – is the kind of self-identification as a potentially violent person that Congress was reaching by the ACCA.

Color me unpersuaded. Even if the court is right about Congress's understanding of "involving" in the SDO definition, that definition still doesn't reach all the conduct encompassed by a Texas delivery-by-offer-to-sell. As the court acknowledges, under Texas law "the accused need not have any drugs to sell or even intend ever to obtain the drugs he is purporting to sell." That being the case, a conviction for delivery-by-offer-to-sell doesn't necessarily establish that the offender has "intentionally enter[ed] the highly dangerous drug distribution world." And under the Shepard categorical approach, which the court employs here, that means that delivery-by-offer-to-sell is broader than the SDO definition and doesn't qualify as an ACCA predicate.

But let's assume the court is correct that someone convicted of delivery-by-offer-to-sell has intentionally entered The Game. Is that "the kind of self-identification as a potentially violent person that Congress was reaching by the ACCA," as the court says? I think the answer is: we don't know, and that ought to trigger the rule of lenity. As Justice Scalia pointed out in his Begay concurrence---on the question of whether DUI poses the same risk of injury that burglary does---it is impossible to know how serious that risk is without knowing how many instances of DUI there are in a year, and those statistics aren't available. Consequently, in Justice Scalia's view, because one "can do more than guess as to whether drunk driving poses a more serious risk than burglary[,]" the rule of lenity kicks in and DUI can't be considered a "violent felony" under the ACCA. Likewise, without knowing just how frequently drug transactions erupt into violence, or even just the incidence of violence in the drug trade as a whole, it's impossible to know how likely it is that someone who offers to sell drugs is the "the kind of person who might deliberately point the gun and pull the trigger."

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Tuesday, August 12, 2008

James Brown's [Expert Witness] Hot Tub Party?

Today's New York Times features a very interesting article from legal correspondent Adam Liptak about the apparently unique American practice of relying on partisan experts in litigation, both criminal and civil. Australia, for example, prefers a practice called "hot tubbing," which isn't as swingin' as you might imagine (depending, I guess, on just what kind of imagination you have):

In that procedure, also called concurrent evidence, experts are still chosen by the parties, but they testify together at trial — discussing the case, asking each other questions, responding to inquiries from the judge and the lawyers, finding common ground and sharpening the open issues.
Any chance Australian-style hot-tubbing will capture America's imagination like Crocodile Dundee?

Joe S. Cecil, an authority on expert testimony at the Federal Judicial Center, a research and education agency in Washington, said hot tubbing might represent the best solution yet to the problem of bias in expert testimony.

“Assuming the judge has an active interest in ferreting out the truth and the experts are candid, I prefer the hot-tubbing option,” Mr. Cecil said. “But those are two bold assumptions, and the procedure drives the attorneys nuts.”

Then again, as one law professor quoted in the article put it, “Hot tubbing . . . is much more interesting than neutral experts.” What do y'all think?

(The article in the latest in the American Exception series that "examine[s] commonplace aspects of the American justice system that are virtually unique in the world." Past articles have covered topics such as the exclusionary rule and the swelling U.S. prison population.)

Link via How Appealing.