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Success Story

AFPD Rick Hoffman Wins Judgment of Acquittal In Failure to Register Case

On December 1, 2008, Senior Judge Nielsen granted a post-verdict motion for judgment of acquittal in the case of US v. Pacheco-Arvizo. Mr. Pacheco-Arvizo was charged with failing to register as a sex offender under 18 USC 2250. Section 2250 was passed as part of the Adam Walsh Act in July, 2006. The provision under which Mr. Pacheco-Arvizo was charged required the government to prove that Mr. Pacheco-Arvizo had traveled in interstate commerce. At trial, the government produced evidence showing that Pacheco-Arvizo was convicted of a sex offense in 1985; he was deported in 1994; and he was found in Franklin County in 2008. No evidence was produced with respect to Mr. Pacheco-Arvizo’s whereabouts from 1994-2008.

Judge Nielsen agreed with the defense argument that 2250 requires the government prove travel subsequent to passage of the Adam Walsh Act in 2006. The primary case relied upon by the defense was US v. Jackson, 480 F.3d 1014, 1018 (9th Cir. 2007), a case interpreting a similar international travel statute. Defense briefing can be accessed here.

Unfortunately, Mr. Pacheco-Arvizo’s victory does not mean he will be released. He is also being held on an immigration violation. However, the win is an important check on the government’s efforts to prosecute failure to register offenses in federal court. Great work, Rick!

2008 12 01 admin Sex Offenses
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Challenging the Admissibility of Gang Expert Testimony

The Second Circuit recently issued a terrific opinion, holding that the government’s use of gang expert testimony at trial violated the Federal Rules of Evidence and the Confrontation Clause. The decision is US v. Mejia, 545 F.3d 179 (2d Cir. 2008).

The defendants in Mejia were charged with criminal racketeering, based upon their membership in the MS-13 gang. At trial, the government called a police investigator as an expert to testify about the history, structure, and practices of the MS-13 gang. During defense questioning, the investigator stated that he learned about the MS-13 gang through interviews with gang members, reports from other officers, and internet research. At trial, the investigator testified as to various crimes committed by MS-13 gang members, including between 18-23 murders in the local area over the past 5 years.

The court of appeals held that the investigator’s testimony was not admissible as expert testimony under FRE 702. According to the court, the subject matter was not something beyond the grasp of the average juror. No expertise was required for the jury to understand that the MS-13 gang had committed various crimes. These facts could have been proven through lay witness testimony or other traditional evidence.  The court noted that while gang expert testimony may sometimes be helpful, such as to tie graffiti left near a dead body to a specific gang, the mere recitation of various crimes is not proper expert testimony. Furthermore, even in the foregoing example, the admissibility of testimony as to the significance of certain graffiti does not excuse the government from putting on fact evidence as to the dead body and the existence of the graffiti.

The court also held that much of the investigator’s testimony constituted inadmissible hearsay. According to the court, while an expert may rely on hearsay in forming opinions, he may not simply transmit that hearsay to the jury.

In a similar vein, the court held that much of the investigator’s testimony violated the Confrontation Clause of the Sixth Amendment, as laid out in Crawford v. Washington, 541 U.S. 36 (2004). The investigator’s testimony was based upon on several out-of-court testimonial statements made by individuals he had interrogated. The court held that the reliance on and repetition of these testimonial statements violated the Confrontation Clause.

2008 11 24 admin Evidence
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CJA Panel Meeting Notice

The next Spokane CJA panel meeting will be held tomorrow, November 20, 2008 from 12-1 pm  at the Spokane Office. Steve Hormel, Chief Trial Attorney, and Pete Schweda, CJA Representative, will be discussing current and future resources available to CJA panel attorneys, as well as other topics of interest to the panel. We hope you will be a part of this important discussion, as we want to develop resources to meet your needs. Please RSVP by the close of buisness today (November 19), so we know how many to expect.

The Yakima office will not be holding a November CJA panel meeting. The December meeting will be on the 18th at 4:00 pm at the federal courthouse. Curt Robins will be provide training on using Courtroom Technology (this topic was originally slotted for our October meeting). A brochure for the training is available here.

2008 11 19 admin Training Notices Comments (0) Permalink

Register for “Winning Strategies”

Seminar Specially for CJA Panel Attorneys, February 5-7, Charleston, S.C.

The annual Winning Strategies seminar offers both new and experienced panel attorneys the opportunity to attend presentations on criminal defense topics of interest in both large and small group settings. The presentations focus on the nuts and bolts of federal criminal practice including the sentencing guidelines, sentencing mitigation, and the Federal Rules of Criminal Procedure. Sessions include those focusing on the impact of cases such as Crawford and Gall/Kimbrough, as well as Fourth, Fifth and Sixth Amendment issues. In addition, participants can expect presentations on trial skills such as cross examination and developing theories and themes for trial. Other areas expected to be covered are defending child pornography cases, attacking mortgage fraud prosecutions and defending gang cases. Also included are presentations on the use of technology in the courtroom and an explanation of CJA guidelines and procedures.

The program brochure is available here and a draft agend is available here. Registeration and financial assistance applications can be accessed here.

2008 11 13 admin
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Preserving Issues for Appeal — Beware the Stipulated Facts Trial

Want a little post-Halloween scare? Imagine the following scenario: Client is found with a gun in his car. You move to suppress and, to your shock and dismay, you lose. The US Attorney will not agree to a conditional plea. So you decide to go to trial, but stipulate to the operative facts in order to obtain acceptance of responsibility. On appeal, the court holds that your stipulation mooted the suppression issue and you lose without any consideration of the merits.

Are you spooked? You should be. This is what happened to the defendant in the recent Fifth Circuit case of US v. Garcia-Ruiz, No. 07-51269 (5th Cir. Oct. 27, 2008)(available here). Think this can’t happen in the Ninth Circuit? Think again. The Ninth Circuit came to the same conclusion in US v. Larson, 302 F.3d 1016 (9th Cir. 2002).

So what should you do if you want to appeal a pre-trial ruling, but the government either will not agree to a conditional plea or won’t agree to a conditional plea on acceptable terms (an increasingly common problem)? Larson gives some guidance on what needs to be done.

The Ninth Circuit explained that Mr. Larson’s problem was that he stipulated to the elements of the crime. Had he instead stipulated to a description of the evidence — e.g., in the scenario above, that during a search of the vehicle officers found a gun — then the stipulation would not have mooted the suppression issue. This is because when a defendant simply stipulates to having a gun, the stipulation becomes independent proof of possession, separate from the search. However, when a defendant stipulates to what happened during a search, then the propriety of the search is still be a live issue for appeal.

Another option for preserving appeal, discussed in Larson, is simply to require the government to put on witnesses. However, this option may not preserve a reduction for acceptance of responsibility.

If defense counsel opts for a stipulation, there needs to be language stating that the stipulation is not intended to waive the defendant’s ability to contest adverse pretrial rulings on appeal. The Fifth Circuit’s decision in Garcia-Ruiz indicates that this sort of conditional language would have likely saved the merits of the defendant’s appeal . Similarly, in Larson, the Ninth Circuit held that a stipulation which has the effect of mooting an issue on appeal is not valid if the defendant did not knowingly and intelligently surrender his right to appeal. Accordingly, if a defendant makes clear that a stipulation is not intended to waive appeal, this should protect against any unintended uses of a stipulation.

2008 11 03 admin Appeals
Issues to Preserve
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Success Story

District Court Holds That Running Computer Hash Values Is a Search

Normally, “Success Stories” covered by this blog are limited to wins in our districts, but a recent win by the Federal Defenders in the Middle District of Pennsylvania deserves a shout-out for a creative suppression motion in the area of computer forensics. As reported here, Chief District Court Judge Yvette Kane granted the defendant’s motion to suppress evidence obtained as a result of a warrantless search of the hash values on the defendant’s computer. The case is US v Crist and can be accessed here.  Briefing is available here.

What’s a hash value? If you work on child porn cases, you need to know. Our computer systems guru, Jennifer McCann, has prepared a short summary available here.

Do you have a success story to share? Let us know. We’d love to share your insights and give out kudos.

2008 10 30 admin Computers
Success Stories
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Pushing the Envelope

Keep on Top of the Evolving “Modified Categorical” Approach

Over the past few weeks, the constant drum beat on this blog has been that the Ninth Circuit is re-visiting the “modified categorical” approach to predicate convictions in a way that is more restrictive and, thus, beneficial to the defense. See here and here. Yesterday, an intriguing new Ninth Circuit decision was added to the mix, and should stir up some thoughts about how to re-conceptualize the modified categorical approach.

Continue reading ›

2008 10 29 admin Categorical Approach
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Important New 9th Cir. Case Limiting Modified Categorical Approach

Decision Addresses What Constitutes a Prior Conviction for “Sexual Abuse of a Minor”

The Ninth Circuit published a new en banc decision today in an immigration case that will have significant impact on criminal defense cases for several reasons. See Estrada-Espinoza v. Mukasey, 05-75850 (9th Cir. Oct. 20, 2008).

First, the court held that, for immigration purposes under 8 U.S.C. § 1101(a)(43), “sexual abuse of a minor” is defined by 18 U.S.C. § 2243. This section prohibits a sexual act with a person at least 12 years old, but not 16 years old with at least a four-year difference. Applying this definition, the Court found several of California’s statutory rape offenses to be overbroad under a categorical approach because California’s age of consent is 18, not 16. In doing so, the Court rejected the government’s argument that “sexual abuse of a minor” is whatever the state says it is. The court also recognized that the term “sexual abuse of a minor” requires some level of abuse. and while sexual contact with a young minor might be inherently abusive, sexual contact with an older, more mature minor was not inherently abusive.

The second reason this case is important is that it reaffirms the limited application of the modified categorical approach adopted in Navarro-Lopez, another en banc case. Having determined the generic definition of “sexual abuse of a minor” and finding that the California’s offenses were overbroad, the Court then considered whether it could apply even the modified categorical approach. Three of the offenses prohibited certain sexual acts with a person under the age of 18, and did not contain the fourth element of the generic offense: an age difference of at least four years. Because these three offenses were missing this element of the generic crime, a jury would never be required to find this element, and the Court could not apply the modified categorical approach.

The fourth offense was trickier: it prohibited sexual contact with a person under the age of 18 who is more than three years younger than the actor. Although this offense was not missing the age difference element, a jury would never be required to find that the age difference was four years as required by the generic offense. Consequently, even if the actual age difference was four or more years, it does not matter. The modified categorical approach could not be applied to this offense because it was missing a necessary element.

This is an important case and a must-read for every attorney to fully understand the limited application of statutory rape convictions and the modified categorical approach.

–Tracy Staab

2008 10 20 admin Categorical Approach
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Protected: Reconstructing the Guidelines–Alternatives to Incarceration (Protected by Brief Bank Password)

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2008 10 20 admin Sentencing Enter your password to view comments Permalink

Amendments to Sentencing Guidelines Take Effect Nov. 1

Turning the calendar to November means the weather is getting colder, it’s time to vote, and it’s time to get ready to start using a new set of U.S. Sentencing Guidelines. This year’s amendments are not particularly earth-shattering. Most address new, relatively obscure offenses, such as filing false liens (USSG 2A6.1), disaster assistance fraud (USSG 2B1.1) and animal fighting (USSG 2E3.1). However, there are some significant changes to USSG 2L1.2, the guideline governing alien re-entry offenses (8 USC 1326).

The alien re-entry guideline has been amended to state that predicate “forcible sex offenses” (which receive 16-level enhancements) are defined to include conduct where consent “is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced.” The guideline also now defines predicate “drug trafficking offenses” (which can receive 12- or 16-level enhancements) as including “offers to sell,” thereby overruling prior case law holding that solicitation is not a drug trafficking offense (note that solicitation is still not considered a drug trafficking offense in other immigration contexts).

On the (hopefully) bright side, the commentary to 2L1.2 was amended to encourage departures when a defendant’s guideline level overstates or understates the seriousness of a predicate conviction. The amendment provides two examples of how this might happen: The offense level might be overstated when a defendant qualifies for a 16- or 12-level enhancement, but the offense in question is not an aggravated felony under 8 USC 1101(a)(43). An offense level might be understated when a defendant was convicted of simple possession of a controlled substance, but the amount of drugs actually possessed is suggestive of drug trafficking.

The departure commentary should provide relief to the numerous defendants who receive 16-level enhancements, but who do not qualify as aggravated felons. This is particularly common when a defendant has a felony “crime of violence.” In order for a crime of violence to be an aggravated felony, the sentence imposed must be at least one year. However, to qualify for a 16-level enhancement as a felony “crime of violence, the length of sentence is irrelevant. Accordingly, a defendant who received 90 days for felony assault is not considered an aggravated felon under the immigration laws, but is subject to the maximum possible enhancement under the alien re-entry guideline. The new guideline amendment should provide some relief from this inequity.

Note that courts must use the guidelines in effect on the date of sentencing, unless doing so would create ex post facto problems by enhancing a defendant’s sentence based upon changes to the law enacted subsequent to the offense conduct. See USSG 1B1.11.

The proposed amendments to the guidelines can be accessed here.

2008 10 16 admin Comments (1) Permalink