Results tagged “Illegal Reentry” from The Federal Criminal Appeals Blog

December 30, 2013

Short Wins - Last Post Of The Year Edition

It's generally a slow time of year between Christmas and New Year's, but the federal circuits have been busy. But who wouldn't want to start the year with a remand in a criminal case (other than the government)?

Since we were off last week, here are the wins from the last two weeks in the federal circuits.

Happy New Year!

To the victories:

1155650_berlin_siegessule.jpg1. U.S. v. Duron-Caldera, Fifth Circuit: Appellant was convicted of illegal reentry. The conviction was vacated and the case remanded because the government should not have been allowed to admit an affidavit by the appellant's grandmother. The use of the affidavit violated the Confrontation Clause.

2. U.S. v. Doss, Seventh Circuit: Appellant was convicted and sentenced for a variety of identity fraud and identity theft charges. Finding that a sentencing enhancement was improperly applied, the Seventh Circuit vacated the sentence.

3. U.S. v. DeJarnette, Ninth Circuit: DeJarnette appealed his conviction for failure to register as a sex offender. The Ninth Circuit reversed the conviction because the Attorney General has not validly specified if the Sex Offender Registration and Notification Act (SORNA) applied to those already under sex offender restrictions when SORNA was enacted.

Defense Attorney: Mark D. Eibert

4. U.S. v. Timmann, Eleventh Circuit: Appellant was convicted of possession of a firearm by a convicted felon. On appeal, the Eleventh Circuit vacated the convictions because the trial court improperly denied the Appellant's motion to suppress evidence collected from a warrantless search. Because there was no urgent, ongoing emergency, the emergency aid exception to the warrant requirement should not have applied, and therefore the evidence collected should have been suppressed.

5. U.S. v. Pole, D.C. Circuit: Appellant was convicted of five counts of wire fraud and one count of theft. Because Appellant's claim for ineffective assistance of counsel was colorable, they were remanded. Further, because the trial court did not make the proper factual findings regarding restitution, the restitution order was vacated and remanded.

Defense Attorneys: Beverly G. Dyer, A.J. Kramer, and Tony Axam, Jr.

6. U.S. v. Rushton, Seventh Circuit: Appellant pled guilty to one count of mail fraud and one count of money laundering and received a 4-level enhancement at sentencing for commodity pool operator fraud as well as a 2-level enhancement for abuse of a position of trust. The Seventh Circuit reversed and remanded because the abuse of trust enhancement is barred if the enhancement for being a commodity pool operator applies; therefore, Appellant's sentence was not calculated correctly.

7. U.S. v. Caceres-Olla, Ninth Circuit: After pleading guilty to unlawful reentry into the United States, Appellant was sentenced to 46 months in prison. The court applied a sentencing enhancement based on a prior crime. However, the Ninth Circuit held that a prior felony conviction under Florida Statute §800.04(4)(a) does not qualify as a crime of violence and therefore vacated and remanded for resentencing.

8. U.S. v. Lin, Ninth Circuit: Appellant was convicted under 18 U.S.C. §1546(a) for fraud and misuse of visas, permits, and other documents. The panel from the Ninth Circuit remanded because §1546 does not prohibit the mere possession of an unlawfully obtained driver's license issued by the Commonwealth of the Northern Mariana Islands. Instead, §1546 targets different documents, but the government did not prove that Appellant possessed any such document.

Defense Attorney: Mark B. Hanson

9. U.S. v. Eiland, D.C. Circuit: Eiland and Miller were convicted of various narcotics-related offenses. On appeal, the D.C. Circuit vacated Miller's conviction for participation in a continuing criminal enterprise because the government failed to produce sufficient evidence that Miller acted as an organizer, supervisor, or manager to five or more individuals. Thus, the government did not establish all elements of the crime. The Court also vacated the fine imposed on Eiland and remand for reconsideration of that portion of the sentence because the district court vacated the conviction for which the fine was imposed.

Defense Attorneys: Eric H. Kirchman, Kenneth M. Robinson, Dennis M. Hart, and Frederick Miller

10. U.S. v. Miller, D.C. Circuit: This case is related to the above case, U.S. v. Eiland. In this related opinion, the D.C. Circuit vacates a number of convictions because the district court's responses to jury notes impermissibly interfered with the jury's independent role as fact-finder. The trial court abused its discretion by directing the jury to evidence previously unidentified by the jury as supporting a charge in the indictment. The Court also vacated Thomas' life sentences for narcotics conspiracy and RICO conspiracy and remanded for resentencing because those sentences violated Apprendi.

Defense Attorneys: Dennis M. Hart and David B. Smith

June 28, 2013

Short Wins - Immigration Fraud and Bad Prosecutor Edition

I'm writing this from the Fourth Circuit Judicial Conference. Here's my brief recap.

Today, Brian Stevenson, a tremendously cool death penalty lawyer told the assembled group that justice for poor folks and people of color is going to be more likely if decision makers are in closer proximity to poor folks and people of color.

Yesterday, there was a talk about how to improve your home security, to keep any one who wants to get in proximity to you from doing so.

There's something for everyone.

Anyway, it's been a good week in the circuits.

Here are my two favorite cases from the last week:

In United States v. Tavera the Sixth Circuit had some trouble disclosing statements that tended to show that the defendant was not actually guilty. Here's the quotable gem: "This case shows once again how prosecutors substitute their own judgment of the defendant's guilt for that of the jury."

Also, in United States v. Rojas the Eleventh Circuit kicked a marriage fraud conviction on statute of limitations grounds.

To the victories!

1155650_berlin_siegessule.jpg1. United States v. Gillenwater, Ninth Circuit: The district court erred in finding appellant incompetent to stand trial because, at the competency hearing, appellant was denied his constitutional right to testify. This error was not harmless because the court did not know what the appellant would have testified about.

2. United States v. Hernandez-Meza, Ninth Circuit: Appellant's conviction for illegal reentry was dismissed because it was in violation of the Speedy Trial Act. Further, the court abused its discretion when it let the government reopen its case-in-chief to present evidence that had not been produced in discovery to rebut appellant's defense. The case was remanded for a hearing to determine whether the prosecution willfully failed to disclose the evidence and, if so, to impose sanctions.

3. United States v. Rojas, Eleventh Circuit: The trial court abused its discretion in denying appellant's motion to dismiss his marriage fraud indictment on statute of limitations grounds. Because that crime is complete on the date of the marriage, the government's indictment was barred by the five-year limitations period. The trial court's ruling was reversed and the case remanded.

4. United States v. Tang, Fifth Circuit: Appellant pled guilty to failing to register as a sex offender after traveling in interstate commerce. He appealed some conditions of his supervised release, including a ban on Internet use and a restriction on dating people with minor children. The internet restriction was vacated because it was not reasonably related to the factors in 18 U.S.C. § 3553(a) and involved a greater deprivation of liberty than reasonably necessary. The dating restriction was vacated because that restriction from the written judgment was not part of the oral pronouncement of sentence.

5. United States v. Tavera, Sixth Circuit: Appellant, along with a co-defendant, was convicted of participating in a drug conspiracy. During plea negotiations, the co-defendant told the government's lawyer in appellant's case that appellant had no knowledge of the conspiracy. The prosecutor never disclosed these statements to appellant. The prosecutor's failure to disclose the statements resulted in a due process violation. As a result, the court vacated the conviction and remanded for a new trial.

6. United States v. Valerio, Eleventh Circuit: The trial court erred in denying appellant's motion to suppress evidence that led to his arrest for growing marijuana because the officers' Terry stop and subsequent seizure was unauthorized by the Fourth Amendment. Appellant's conviction was vacated.

7. United States v. Vazquez, Ninth Circuit: Appellant was convicted of possession with intent to distribute methamphetamine and sentenced to 144 months. He received an additional point in his guidelines range calculation based on his conviction for "driving while license suspended." That conviction should not have been counted because he was not sentenced to probation for more than one year or to prison for at least 30 days. The sentence was vacated and the case remanded.

February 12, 2013

You Can't Suppress The Body, But You Can Suppress The Fake ID Used To Find The Body

The Supreme Court has said that you can never suppress the body of a person accused of a crime - the person's identity is not able to be kept out of evidence, even if that identity is the result of an unlawful arrest or search.

This is a huge issue in illegal reentry cases. If a person is deported then returns to this crime, that's illegal reentry. If the person is deported after having been convicted of certain kinds of felonies - whoa buddy, that's illegal reentry after having been convicted of an aggravated felony.

In light of the Supreme Court's rule about how you can't suppress the body of the person accused, many people who handle illegal reentry cases find them massively depressing. If you can't suppress the person's identity, even if the knowledge comes from an unlawful search, then you've gutted the Fourth Amendment for people accused of illegal reentry.

Yet, in United States v. De La Cruz, the Tenth Circuit said that a motion to suppress should have been granted when the subject of the motion to suppress was whether a man's identification was taken against his Fourth Amendment rights.

1337574_clean_my_car_3.jpgMr. De La Cruz Was in the Wrong Place

Three ICE agents were staking out Gill's Truck Wash in Tulsa, Oklahoma. They were looking for a man who they thought was in the country illegally. The truck wash wasn't open yet.

A car pulled up with tinted windows. A passenger got out. The agents got a one or two second glimpse of the person driving the car.

They decided that the person driving the car may be the guy they're looking for.

They pulled the car over.

The car was not driven by the man they were looking for - instead, it was driven by Enrique De La Cruz.

Mr. De La Cruz was dropping off his brother Armando. In the backseat of the car sat Mr. De La Cruz's wife and his mother in law. They were joined by Armando's wife.

The agents asked Mr. De La Cruz if he was the man they were looking for. They compared the way he looked to the picture they had of the other man. Mr. De La Cruz was not the other man.

The agent, figuring that he had already pulled the guy over, asked Mr. De La Cruz for his identification. Mr. De La Cruz gave them a fake id. They used the fake id to figure out who he is. Turns out he was in the country illegally - after having been previously deported.

The Tenth Circuit

The Tenth Circuit found that this stop and search violated Mr. De La Cruz's rights under the Fourth Amendment.

The interesting part, though, is what they held about whether he's allowed to complain about the stop.

As the Tenth Circuit set it up

In Lopez-Mendoza, a case addressing civil deportation hearings, the Supreme Court noted that "[t]he 'body' or identity of a defendant or respondent in a criminal or civil proceeding is never itself suppressible as a fruit of an unlawful arrest, even if it is conceded that an unlawful arrest, search, or interrogation occurred." Id. at 1039. Lopez-Mendoza, however, does not "exempt[] from the 'fruits' doctrine all evidence that tends to show a defendant's identity." Rather, Lopez-Mendoza's "statement that the 'body' or identity of a defendant are 'never suppressible' applies only to cases in which the defendant challenges the jurisdiction of the court over him or her based upon the unconstitutional arrest, not to cases in which the defendant only challenges the admissibility of the identity-related evidence."

So, Mr. De La Cruz can challenge the admissibility of the fake id at his trial. That fake license was taken in violation of his Fourth Amendment rights, so it won't come in at trial.

November 27, 2012

Short Wins - A Few Things Happened Before Thanksgiving

After yesterday's heady news from the ABA Law Journal (did I mention you can vote for this blog here), I completely neglected to, you know, actually blog. Apologies.

Here are brief treatments of the wins from the week with Thanksgiving in it. Like Thanksgiving leftovers, there's not a lot here to be tremendously excited about, but, if you're really into yams and there are yams in the fridge, you're happy.

To carry the metaphor forward, let's hope you're really into sentencing remands.

The three cases are all on sentencing issues. The Ninth Circuit reversed on a sentencing issue in an illegal reentry case based on a change in the probation revocation guidelines, the Fourth Circuit reversed on a Fair Sentencing Act case, and the Fifth Circuit reversed a restitution award in Ponzi scheme case.

There's a backlog of interesting cases (no offense to these guys) from prior weeks. Later this week I'll have a few posts up about those.

To the Victories:

1155650_berlin_siegessule.jpg1. United States v. Catalan, Ninth Circuit: After Appellant was convicted of drug trafficking and served his six-month jail term, he was deported. When he later pled guilty to illegal reentry, his probation on the drug charge was revoked and he was sentenced to 360 days in jail. At his illegal reentry sentencing, the court imposed a 16-level enhancement under Sentencing Guideline 2L1.2(b)(1) based on appellant's six-month sentence and his 360-day sentence. Guideline 2L1.2(b)(1) provides for a 16-level enhancement if the defendant was previously deported after a drug trafficking conviction for which the "sentence imposed" was greater than 13 months. After appellant's sentencing, the Sentencing Commission clarified that a probation revocation sentence served after deportation should not be used to calculate the "sentence imposed" under the Guideline. Because the court used the probation revocation sentence to calculate the "sentence imposed," appellant's sentence was vacated and the case remanded for resentencing.

2. United States v. Edmonds, Fourth Circuit: Appellant was convicted of conspiracy to distribute more than 50 grams of crack cocaine, among other drug offenses. He was sentenced to life imprisonment on the conspiracy charge on the effective date of the Fair Sentencing Act, which increased the amount of crack cocaine needed to trigger the life imprisonment mandatory minimum from 50 grams to 280 grams. Because appellant was entitled to the benefits of the Act and the Act was not addressed below, appellant's sentence was vacated and the case remanded for resentencing with directions for the court to consider the Act.

3. United States v. Murray et al, Fifth Circuit: Appellants were convicted and sentenced for crimes arising out of a Ponzi scheme. None of appellants' sentences required restitution and none deferred determination of the amount of restitution to a later date. Because the district court found that restitution was inapplicable, the Mandatory Victims Restitution Act did not authorize the court to reopen appellants' final sentencing judgments to amend the sentences to include a restitution requirement. Because the right to appeal the timing of the court's order was not waived, the restitution orders were reversed.

October 27, 2012

Short Wins - Pro Se Criminal Contempt Reversed And Other Cases

It's a dog's breakfast of victories in the nation's federal criminal appellate courts.

Personally, I love a good case on the district court's contempt power -- look to see the Fourth Circuit's contempt reversal in United States v. Peoples profiled in more depth a little later in the week. The case has everything -- a pro se litigant, a finding of contempt, and profanity (which is tastefully referred to in the opinion). It reminds me of another great pro se contempt case from last year. It reminds me, too, of the Sixth Circuit's relatively recent case on the limits of a district court's power to sanction a lawyer. Always good stuff.

Which is not to give short shrift to the two other wins from last week -- resentencing in an illegal reentry case and unsupported supervised release conditions in a federal sex case.

And, of course, this week the Supreme Court is hearing more arguments and it's a relatively criminal heavy week. Tuesday has a Padilla case, as well as a nice Fourth Amendment question -- can the cops detain someone incident to a search warrant if the person is not actually present when the search warrant is executed. Wednesday is dog sniff day.

Of course, that assumes that Frankestorm doesn't blow the Eastern Seaboard away. Wish us luck with that.

1155650_berlin_siegessule.jpgOn to the victories:

1. United States v. Peoples, Fourth Circuit: On appeal of appellant's two criminal contempt convictions, the Fourth Circuit held that, as to the second conviction, the district court committed plain error when it summarily imposed a contempt sanction for appellant's tardiness because the court failed to provide appellant with notice and an opportunity to be heard, and because this failure affected appellant's substantial rights.

2. United States v. Rodriguez-Escareno, Fifth Circuit: In illegal reentry case, the district court applied a 16-level enhancement to appellant's sentence because it considered his earlier crime, conspiracy to distribute methamphetamine, to be a "drug trafficking offense" under Guideline § 2L1.2(b)(1)(A)(i). The court erred in applying the enhancement because the elements of the conspiracy conviction under 21 U.S.C. § 846 are not consistent with the meaning of "conspiring" under the relevant Guideline: the Guideline requires an overt act, while § 846 does not. This was plain error because it was obvious and affected appellant's substantial rights: had his sentence been properly calculated, his Guidelines range would have been 15-21 months, as opposed to the 41-51 months determined by the court. Appellant's 48-month sentence was vacated and the case remanded for resentencing.

3. United States v. Child, Ninth Circuit: Appellant was convicted of attempted sexual abuse. A condition of supervised release prohibited him from residing with or being around children under age 18, including his daughters, and from socializing with or dating anybody with children under age 18, including his fiancée, without prior approval from his probation officer. The court failed to make specific findings on the record addressing the necessity of restricting appellant's ability to have contact with his children and fiancée. Because of the significant liberty interest implicated, these errors - as well as the absence in the record of any evidence supporting the condition - rendered the condition substantively unreasonable. The condition was also overbroad. For these reasons, the condition was vacated and the case remanded.

March 7, 2012

Collateral Estopel In A Criminal Case; If You Might Be A Citizen Once, You Might Be A Citizen Forever

One of the most jarring things about federal criminal practice, especially for lawyers who are well trained in civil litigation - is how many procedural rights and doctrines don't apply.

You want to move for summary judgment? No such motion exists (as a general matter, but see this post).

You want to take a deposition? You're likely out of luck. (Yes, that's right, you get more information about the other side's case in a civil case - which is only about money - than you do in a criminal case where someone might go to prison).

Yet, every now and again, a decision comes down that reminds you that in some cases - perhaps rare cases - the old familiar doctrines from law school can provide a benefit in a federal criminal case.

778488_stone_judge.jpgUnited States v. Valdiviez-Garza is one such case.

There, the Eleventh Circuit ordered the district court to dismiss an indictment because of the doctrine of collateral estoppel.

That's right - collateral estoppel. In a criminal case.

Collateral estoppel, for the one non-lawyer reader of this blog (hi Mom!), is the rule that once an issue is fully and finally resolved between any two parties, it is settled, and can't be argued again.

How does this arise in a criminal case? Here's what happened.

Mr. Valdiviez-Garcia was charged with illegal reentry. The elements of illegal reentry are that the person charged:

(1) was an alien at the time of the offense; (2) who had previously been removed or deported; (3) and had reentered the United States after removal; (4) without having received the express consent of the Attorney General.

The thing is, Mr. Valdiviez-Garza had already been tried for illegal reentry years before. In that case, he was acquitted.

Mr. Valdiviez-Garza's dad, it seems, was a United States citizen. And, under certain circumstances, if one of a person's parents is a citizen, the person is a citizen.

In the first trial, the only issue was whether Mr. Valdiviez-Garza was a citizen. His lawyer focused on only one issue in the trial - the lawyer cross-examined only one witness, and that cross dealt only with Mr. Valdiviez-Garza's citizenship.

The jury acquitted Mr. Valdiviez-Garza in that case. Because there was only one issue in the first trial, the Eleventh Circuit determined that Mr. Valdiviez-Garza was acquitted on the basis of reasonable doubt about his citizenship.

Therefore, the Eleventh Circuit held, it is finally settled that there is a reasonable doubt as to whether Mr. Valdiviez-Garza is a United States citizen. Under collateral estoppel, the United States government cannot take a position contrary to there being reasonable doubt about whether he is a citizen.

So, when, years later, Mr. Valdiviez-Garza was indicted, again, for illegal reentry, the Eleventh Circuit ordered the district court to dismiss the case, because there is reasonable doubt as to an element of the offense.

Interestingly, the Eleventh Circuit ordered the district court to dismiss the appeal on an interlocutory appeal - without a trial. As the court of appeals explained,

Because the collateral estoppel doctrine implicates the constitutional protection against double jeopardy, we have jurisdiction to review the interlocutory decision under the collateral order doctrine.

Let's hope Mr. Valdiviez-Garcia was not held in custody too long on this charge before the Eleventh Circuit ordered the indictment dismissed.

August 22, 2011

The Ninth Circuit Remands For A Third Trial In An Illegal Reentry Case

Winston Churchill is famous for his "Never Give In" speech.

They must be watching that speech in the Federal Defenders of San Diego, particularly in that office's representation of Carlos Jesus Marguet-Pillado. Those lawyers did tremendous work for their client, solely because they never gave up. See the Ninth Circuit's recent opinion in United States v. Marguet-Pillado.

Mr. Marguet-Pillado was charged with illegal reentry. To be convicted, the government has to prove that he is an alien who was previously deported from the country and who came back without permission.

His attorneys found his birth certificate. His birth certificated said that Michael Marguet is Mr. Marguet-Pillado's father. Michael Marguet is a United States citizen.

As it happens, Michael Marguet is not Mr. Marguet-Pillado's birth father - he is his step-father.

If Mr. Marguet-Pillado is a United States citizen by virtue of his step-father's citizenship, then he is not an alien. If he is not an alien, he is not guilty of illegal reentry.

Mr. Marguet-Pillado went to trial. He waived a jury trial, and went to a trial in front of a judge. At that trial, he stipulated that he was deported and reentered the country. He argued that he was a citizen by virtue of his step-father's citizenship.

He lost. He appealed. The Ninth Circuit held that derivative citizenship, or citizenship that a person can acquire through one's parents, even if not born in the United States, cannot be conferred through a step-parent.

The Ninth Circuit sent the case back for another trial.

On retrial, Mr. Marguet-Pillado stipulated to nothing. He has a right to demand that the government prove him guilty beyond a reasonable doubt of each part of the offense. He held them to that proof. He demanded a jury.

He asked the trial court to instruct the jury about derivative citizenship. His lawyer said,

obviously, I'm not going to mislead the court or the jury . . . [however] . . . I think the Ninth Circuit has instructed us we're entitled to challenge the quality of the government's evidence . . . I'm not going to argue that our now-rejected legal theory should be the law[, but] I think we're entitled to say that the government hasn't met its burden with respect to an element of the crime.

He asked to have the jury told that derivative citizenship is possible. Here's the instruction:

A person is a natural-born United States citizen if that person was born in the United States. A person born outside the United States is also a natural-born citizen of the United States if, before the person's birth, one biological United States citizen parent of that person was physically present in the United States for ten years, at least five of which were after the citizen parent reached the age of fourteen.

Everyone agrees this is an accurate statement of the law. Yet the district court said no to this requested instruction. The Ninth Circuit already said that Mr. Marguet-Pillado is not a citizen - the district court wasn't going to instruct the jury that they can think about this.

Mr. Marguet-Pillado lost at trial. He appealed.

The Ninth Circuit just reversed, again. It reaffirmed the unremarkable proposition that the government has to prove every element of the offense to get a conviction. So the government has to prove Mr. Marguet-Pillado is not a citizen. And Mr. Marguet-Pillado is entitled to an instruction about who is a citizen.

So, back to trial again. Maybe the third time's a charm?