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Moncrieffe v. Holder, No.11-702: United States Supreme Court Holds That State Criminal Statute Penalizing The Sharing Of Small Amount Of Marijuana Does Not Constitute Aggravated Felony For Purposes Of Immigration Statute

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It’s been a really busy week, but I found a recent opinion that I wanted to pass along to all of Florida’s criminal defense and criminal appeals lawyers out there.  If you handle drug cases with potential immigration/deportation consequences (i.e, ANY drug cases where your client’s status is either unclear, or your client is clearly a noncitizen), then you should take a few minutes to read the United States Supreme Court opinion of Moncrieffe  v. Holder, No. 11-702.

The facts in the Moncrieffe opinion are pretty typical: Moncrieffe, a Jamaican citizen, came to the U.S. legally at the age of 3.  See Moncrieffe, slip op., pg. 3.  During a 2007 traffic stop, cops found 1.3 grams (yes, grams) of marijuana in his car.  Moncrieffe pled guilty to possession of marijuana with intent to distribute under Georgia law (obviously, Georgia law is a lot more harsh than Florida law).  Under a Georgia statute which allows for more lenient treatment to first time offenders, the trial court sentenced Moncrieffe to 5 years of probation, after which his record would be expunged.  See id.

Alleging that the conviction constituted an “aggravated felony” for purposes of 21 U. S. C. §841(a), punishable by up to 5 years’ imprisonment under 21 U.S.C. 841(b)(1)(D), the Government deported Moncrieffe, and the Board of Immigration Appeals affirmed.  See id at pg. 3.  After the 5th Circuit denied Moncrieffe’s petition for review, the United States Supreme Court granted cert, and reversed.

In holding that Moncrieffe’s conviction under the Georgia statute did not qualify as an “aggravated felony” under the Immigration and Nationality Act (INA), the Court rejected the Government’s application of the “categorial inquiry” or “categorial approach,” which is employed  to determine if an offense constitutes an aggravated felony.  See id , slip op., pgs. 4-19.  Although Justice Sotomayor’s majority opinion is rather technical in nature, this line pretty much sums up what the Court thinks of the Government’s argument:

“In short, to avoid the absurd consequences that would flow from the Government’s narrow understanding of the categorical approach, the Government proposes a solution that largely undermines the categorical approach.  That the only cure is worse than the disease suggests the Government is simply wrong.”

Id., slip op., pg. 19.  Ouch.

Unfortunately for Moncrieffe and others in his situation, escaping aggravated felony treatment does not necessarily lead to a conclusion that deportation has been avoided.  Rather, the Court cautioned that it only means that mandatory removal has been avoided.  Rather, under 8 U.S.C. §1227(a)(2)(B)(i), a marijuana distribution offense still renders a non-citizen deportable as a “controlled substances offender.”  See id., slip op., pg. 19.  At that stage, the non-citizen will have to seek asylum, or cancellation of the removal proceedings, assuming the non-citizen meets the other criteria under 8 U.S.C. §§1158(b), 1229b(a)(1)–(2).  As acknowledged by the Court, determinations of asylum or cancellation of removal proceedings are purely discretionary with the Attorney General.

What’s the take away from this case, you ask?  Well, although the Court rejected the Government’s attempt to define possession of a small amount of marijuana as an aggravated felony, the fact remains that non-citizens convicted of even the most low level misdemeanor drug offenses, including first-time offenders who have successfully completed required probationary periods as a prerequisite to expunction, remain subject to possible deportation proceedings.

Wins For the Little Guys in United States Supreme Court, Eleventh Circuit, and Florida Supreme Court

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The stars must be aligned just right, because for the first time in a long time, the US Supreme Court, Eleventh Circuit, and Florida Supreme Court all recently issued opinions favorable to criminal defendants.  It’s like a hat trick for criminal defense and criminal appeals lawyers!

In Millbroook v. United States, 11-10362, Millbrook, a federal prisoner in the custody of the Bureau of Prisons, filed an action against the United States after he was sexually assaulted and verbally threatened while in custody.  Although the District Court granted summary judgment in favor of the United States, and the Third Circuit affirmed, the United States Supreme Court reversed, and held that Millbrook’s lawsuit was not barred by the “law enforcement proviso” of the Federal Tort Claims Act (FTCA).  In so holding, the Court relied on the plain text of the section and determined that Congress intended immunity determinations to be based on a federal officer’s legal authority, not on a particular exercise of that authority.  See Millbrook, 11-20362, slip op., pg. 6.  Based on the plain text of the statute, the Court rejected the Government’s argument that an officer’s intentional tort must occur in the course of executing a search seizing evidence, or making an arrest in order to expose the Government to liability.  See id.

In United States v. Hinds, No. 11-16048, Hinds was convicted of conspiring to possess with intent to distribute 50 grams or more of cocaine base (crack cocaine).  On direct appeal, the Eleventh Circuit agreed with Hinds that his sentence should be vacated because the amount attributed to him was too speculative.  On remand, the District Court failed to give Hinds the benefit of the Fair Sentencing Act (FSA), so Hinds appealed, and won again.  In holding that Hinds should have been given the benefit of the FSA, the Court noted, in footnote 2, that the Government conceded that Hinds should have been given the benefit of the FSA when he appeared on remand.  Too bad Hinds had to appeal twice to get the benefit of the FSA.

Finally, in State v. Larry Phillips, No SC11-411, the Florida Supreme Court found that Phillips, who had been committed under the Jimmy Ryce Act, was eligible for immediate release because the State waited to file its commitment petition after Phillips’ criminal sentence had expired.

Two Palm Beach County Cases Touch on Issues of Juror Misconduct

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As I was scrolling through the news this morning, I came across two articles in the Palm Beach Post that I wanted to pass along to the local criminal defense and criminal appeals attorneys out there.

The first article reports that Palm Beach County Circuit Court Judge Karen Miller has stated that she will call back jurors to inquire into allegations that the jurors discussed a criminal case before the evidence was closed, in violation of the court’s instructions.  Although the Court has not set a date for the hearing, according to the article, the Judge decided to call the jurors back after a local criminal defense attorney filed an affidavit executed by one of the jurors, wherein the juror indicated that she had a “terrible concern that the verdict that the jury reached was not fair.”  The individuals were both found guilty of the 2011 shooting death of a 15-year-old South Bay youth.  They have not yet been sentenced.

In the next article (an op-ed piece), the Palm Beach Post notes that one of the jurors from the John Goodman trial recently admitted in a self-published book that his wife had once been arrested on a charge of DUI.  Obviously, Goodman’s defense team says it asked all potential jurors if any family members had ever been charged with DUI, and that if they had known of his ex-wife’s arrest they would not have selected him.  Armed with that information, John Goodman’s criminal appeals lawyers filed a motion in the Fourth District Court of Appeal case, seeking to have the Court relinquish jurisdiction so as to allow the trial court to consider the issue.  The Fourth DCA initially denied Goodman’s motion on March 22, 2013.  However, after Goodman filed a Motion for Reconsideration, the Fourth DCA granted the motion, and on April 1, 2013, the Court granted the Motion to Relinquish based on the newly discovered evidence of juror misconduct.  The Court’s April 1, 2013, order which can be found on the Fourth DCA docket for case number 4D12-1930, reads as follows:

The motion to reconsider the order denying stay dated March 22, 2013, is denied.  The motion for relinquishment based on newly discovered juror misconduct is granted for the defendant to file and present to the trial court a motion based upon the alleged juror misconduct and for the court to allow a juror interview and then to rule on the issue.  Such relief is not procedurally barred. See e.g. Marshall v. State, 854 So. 2d 1235, 1242 (Fla. 2003); Davis v. State, 778 So. 2d 1096 (Fla. 4th DCA 2001).  Relinquishment is for a period of forty-five days.  ORDERED that appellant’s motion filed March 28, 2013, for permission to file a reply to State’s response is hereby granted.

I don’t know about you, but I am glad to see that both Courts have taken the courageous step of inquiring into the serious issue of juror misconduct.  Job well done.

United States v. Hall, No. 11-14698: Eleventh Circuit Reverses 4-Level Enhancment For Fraudulent Use of Identifying Information to Obtain Credit Cards

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I had to do a double-take when I read the opening paragraph of United States v. Erica Hall, No. 11-14698:

Hall pled guilty to conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1349 (Count 1); conspiracy to commit identity theft and access device fraud, in violation of 18 U.S.C. § 371 (Count 2); wrongfully obtaining and transferring individually identifiable health information for personal gain, in violation of 42 U.S.C. § 1320d-6(a)(2) (Count 3).  When imposing Hall’s sentence, the district court applied a four-level enhancement under U.S.S.G. § 2B1.1(b)(2)(B) because it found that the offense involved more than 50 but less than 250 victims.  In objecting to the enhancement, Hall argued that the mere transfer or sale of identifying information unlawfully or without authority does not equate to the actual use of identifying information for a fraudulent purpose.  Therefore, because the conspirators actually used only identifying information for 12 out of 141 individuals to obtain fraudulent credit cards, Hall argued that the two-level enhancement under U.S.S.G. § 2B1.1(b)(2)(A) was more appropriate because it applies to more than 10, but less than 50, victims.  The district court rejected Hall’s argument, but we do not.  Accordingly, we vacate Hall’s sentence and remand for resentencing.

Wow.  Those are words not often found in an Eleventh Circuit opinion.  No doubt that Hall’s appellate counsel and other criminal defense lawyers practicing in the Southern District of Florida will be pleased.

In another case, Norman Mearle Grim, Jr.  v. Fla. Sec’y, Dept. of Corrs., No. 11-11890, the Eleventh Circuit reverted to its usual self and denied a death-row inmate’s habeas petition.  In the opinion, the Court again rejected a constitutional claim based on Ring v. Arizona, 536 U.S. 584 (2002).  In support, the Court pointed to a recently issued decision, Evans v. Sec’y, Fla. Dep’t of Corrs., 699 F.3d 1249, 1264 (11th Cir. 2012), where the Court held that Florida’s death penalty statute is constitutional.  For my previous post on the Evans case, click here.

Changes Coming To Palm Beach County State Attorney’s Office and Kozinski Gangnam Style?

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Sorry for the slow blogging.  Between crazy deadlines and holiday events, it’s been hard to find time.

I’ve got 3 things for you.  First, the Palm Beach Post reports that changes are in store for the Palm Beach County State Attorney’s Office.  For starters, Paul Zacks is out as the Chief Assistant, to be replaced by Alan Johnson.  I myself am curious to see whether any of the Assistants who left the office under McAuliffe will return to their old jobs now that Aronberg has been elected.  And, like many criminal defense and criminal appeals lawyers out there, I’m also curious to see if Aronberg will allow the prosecutors any more authority to plead out their cases.  Only time will tell.

Second, where will Peter Antonacci, the interim State Attorney, go now that Aronberg has been elected, you ask?  Why, back to Tallahassee to serve as General Counsel to Governor Scott of course!

Third, for those of you who practice in Federal court, I bet you’d never think you’d see Judge Kozinski this  . . . enjoy!

Eleventh Circuit Finds Florida’s Death Penalty Statute Constitutional: What Now? Rehearing in Eleventh Circuit, or Petition for Writ of Certiorari to Supremes?

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You may have read my previous post wherein I mentioned that the Eleventh Circuit has finally ruled that Florida’s death penalty statute is constitutional.  See Evans v. Sec‘y, Dept. of Corrections, No. 11-14498 (opinion issued October 23, 2012).  Well, now what can Evans do?

Only Evans and his criminal appeals lawyers know for certain what will happen next, but any appellate attorney knows that Evans generally has 3 options: (1) do nothing; (2) seek rehearing in the court of appeals; or, (3) seek discretionary review in the United States Supreme Court.  If he is going to try to seek rehearing in the Eleventh Circuit or discretionary review in the United States Supreme Court, he’ll have to act quickly.

A motion for rehearing in the Eleventh Circuit (“Petition for Panel Rehearing”) will have to be filed within 14 days after the entry of judgment.  See Fed. R. App. P. 40.  The Federal Rules of Appellate procedure can be found on the website for the Eleventh Circuit by clicking here.

If Evans decides to seek review in the United States Supreme Court, United States Supreme Court Rule 13 provides that a party seeking to file a petition for writ of certiorari will have to file the petition within 90 days after the entry of judgment.   Rule 13.3 further provides that the 90 days begins to run from the date of the entry of the judgment, not the date mandate issues.  If rehearing is sought in the lower appellate court, the 90 days begins to run from the date of the denial of rehearing or, if rehearing is granted, the subsequent entry of judgment.  The Rules of the United States Supreme Court may be viewed here.

Put simply, seeking discretionary review in the United States Supreme Court is a long shot.  For an interesting article on seeking review in the Supreme Court, view an article posted on the Mayer Brown website by clicking here.

And now the next round of waiting begins . . .

Who Will Be The Next Palm Beach County State Attorney?

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Election day is approaching fast.  Palm Beach County criminal defense and criminal appeals attorneys may want to pay close attention to 1 race in particular: the race for Palm Beach County State Attorney.  The Palm Beach Post recently published a short article outlining the three candidates, Dave Aronberg (D), Robert Gershman (non-party affiliate), and Dina Keever (R), here.

Recently, I went to a local bar function to hear the 3 candidates speak.  Dina Keever actually pulled a no-show.  Not very impressive.  Dave Aronberg was a good speaker, as always.    But I was most surprised by Robert Gershman.  He had a lot of good things to say about returning prosecutorial discretion back to the line prosecutors, and he has many years of experience as both a serious criminal defense lawyer and prosecutor here in Palm Beach County.  For more information about Robert Gershman, you can visit his campaign website by clicking here.  Dave Aronberg’s website can be seen here.  Dina Keever’s website can be seen here.

With Opinions This Long, Who Has Time To Read Them?

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It’s been a very busy few days since I was last able to post anything.  So last evening, I went to the Eleventh Circuit homepage to scan the latest criminal appeals decisions, and came across Holsey v. Warden, Georgia Diagnostic Prison, No. 09-14257, an opinion affirming the denial of a petition for writ of habeas corpus filed by Holsey, a death row inmate in Georgia.  I was shocked to see that the opinion is 152 pages long!!

Normally, you might think that a longer opinion is more valuable in that such opinions at least allow the lawyers in the case to feel like their positions have been well considered by the Court.  Compared to State court criminal appellate opinions, many of which are mere PCAs, or no more than a few paragraphs long, federal court opinions at least tend to provide a more thorough analysis of the issues.  However, this 152-page opinion is a bit extreme, and I don’t mind saying so because even Judge Edmondson agrees!  In his concurrence, beginning on page 104, Judge Edmondson makes some valid points, such as (1) longer opinions tend to contain more information than is needed to dispose of the issues, thereby increasing the chance for judicial error; (2) longer opinions can be overly taxing on the fellow judges of the panel, who have other cases to decide, on members of the Bar who try to stay current with the Court’s latest thinking, and on the public at large, as non-lawyers may have difficulties understanding the basis for the court’s decision; and, (3) longer opinions make it more difficult for lawyers to discern the rationale from dicta.

If you have any time to spare, I suggest a quick review of Judge Edmondson’s concurrence.  And if you need something to get you fired up for the day, don’t miss Judge Barkett’s dissent!

Florida’s Second DCA Issues Opinion Discussing Admissibility of Battered Woman Syndrome as Defense to Charges of Failing to Protect a Child

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Florida’s Second District Court of Appeals recently released the opinion of Brewington v. State, No. 2D10-458, where the Court considered the admissibility of battered woman syndrome as a defense to a charge of Aggravated Manslaughter of a Child.  Florida’s criminal defense and criminal appeals attorneys are familiar with the defense being raised where the woman engaged in an aggressive act.  However, in Brewington, the defense attempted to introduce the syndrome in an interesting way.  Ms. Brewington, who was the  victim of an abusive boyfriend, had her children taken away from her when the State  discovered that her boyfriend had been selling drugs from her home.  A month later, the State returned her children.  Shortly after the children had been returned to Ms. Brewington, police responded to her home to investigate a report that one of her children was not breathing.  The child was taken to the hospital and died.  According to the opinion, the child had been beaten over a period of several days by Ms. Brewington’s boyfriend.  Brewington, slip op. at 2.

Both Ms. Brewington and her boyfriend were arrested and charged in the death of her child.  Ms. Brewington was charged with Aggravated Manslaughter of a Child, essentially by culpable negligence.  At trial, Ms. Brewington attempted to use the battered woman syndrome to challenge the mens rea element–culpable negligence.  Specifically, she sought to present evidence that she suffered from battered woman syndrome, that the syndrome caused her to fail to realize exactly what was taking place, that she did not know her boyfriend was beating her child, and that she did not realize her child needed a doctor.  Ms. Brewington testified that once her boyfriend could no longer hide the child’s condition, he took away her cell phone and prevented her from calling for help.  Ms. Brewington testified that her boyfriend beat her in the past and that she was afraid of him.  Brewington, slip op. pg. 3.

Although the trial court found the defense to be inadmissble because the defense failed to meet the Frye test, and the Second DCA affirmed, the opinion is still worth reading because it contains a good discussion of admissibility of scientific evidence under Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923), as well as a great discussion of other State’s approaches to the admissibility of battered woman syndrome, and the emergence of the use of battered woman syndrome to defend against criminal charges of failing to protect children.  Brewington, slip op., pgs. 3-7.  The Court quoted at length from an article drafted by Kathy Luttrell Garcia: Battered Women and Battered Children: Admissibility of Evidence of Battering and its Effects to Determine the Mens Rea of a Battered Woman Facing Criminal Charges for Failing to Protect a Child From Abuse, 24 J. Juv. L. 101, 139 (2003-04):

Clearly, admission of evidence of battering and its
effects will not relieve a battered woman from criminal
liability when the factfinder determines that she actively
participated in the abuse of a child.  It also will not
automatically, and might not completely, relieve a battered
woman from criminal liability when she fails to protect her
child from the abuse of another.  It should be admitted,
however, when relevant to the issue of whether or not the
passive parent actually formed a culpable mental state that
is an element of the charged offense.
Effects of battering evidence will help the trier of fact
understand the circumstances surrounding the abuse.  It will
also help the trier of fact to determine the existence and
extent of the “passive” parent’s participation in the abuse,
the extent of the passive parent’s attempts to protect the
child, and the extent to which the actions of the direct abuser
prevented the passive parent from doing so.  This will help
ensure the focus is more appropriately placed on the parent
or caretaker having the greater culpability for the violence:
the parent who directly inflicted the injuries on the child, and
who prevented the “passive” parent from intervening on the
child’s behalf.

Shelton v. Sec’y, Dept. of Corrections, No. 11-13515: District Court’s Grant of Habeas Relief REVERSED

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A few days ago, the United States Court of Appeals for the Eleventh Circuit finally issued its opinion in the matter of Shelton v. Sec’y, Dept. of Corrections, No. 11-13515.  Not surprisingly, the Court reversed the District Court’s grant of habeas relief.  Also not surprisingly, the Court avoided the largest issue in the case: the constitutionality of Florida statute section 893.101.

If you read the opinion, you’ll see that the Court avoided having to decide the merits of the constitutionality issue because it resolved the appeal on procedural grounds.  By determining that the District Court failed to apply the proper deferential standard of review to the Florida appellate court’s decision under the AEDPA, the Court did not even have to reach the issue that everyone wanted decided.  This should come as no surprise to criminal defense and criminal appellate lawyers who are familiar with Federal habeas petitions.

Although the Court declined to completely address the merits of the constitutionality issue, the Court nevertheless threw out a few observations.  First, rather than finding that section 893.101 completely eliminated the mens rea element, the Court instead found that the statute only partially eliminated it by converting one aspect of mens rea to an affirmative defense.  Second, the Court noted that the United States Supreme Court has never held that the Due Process Clause forbids a partial elimination of mens rea as an element of crimes similar to Florida’s section 893.101.

Since the appeal was decided on such narrow procedural grounds, it may be difficult to appeal this to the United States Supreme Court.   We’ll have to wait and see what, if anything, Shelton’s team decides to do next.

Enjoy the Labor Day weekend!