Follow us:

Blog Page

U.S. Supreme Court Will Review the Problematic Separate Sovereigns Exception

Posted By admin 2018-07-10 20:48:09

The United States Supreme Court agreed recently to consider whether to overturn a longstanding rule that allows federal and state prosecutions for the same offense. The cert petition filed on behalf of Terrance Gamble was granted, allowing the Court to decide “[w]hether the Supreme Court should overrule the ‘separate sovereigns’ exception to the double jeopardy clause.”

Mr. Gamble is challenging his prosecution by federal officials for possessing a firearm as a felon after Alabama state had already convicted and sentenced him for the same offense. The Double Jeopardy Clause forbids the government from prosecuting a person more than once for the same offense, but courts have long held that this only bars reprosectution by the same sovereign. Put simply, under what is known as the “separate sovereign” exception, the federal government may reprosecute a person after a state prosecution (and vice versa). A defendant can therefore be prosecuted by both the state government and the federal government for the same offense.

My firm in Los Angeles practices criminal law at both the state and federal levels, giving me a unique opportunity to observe how the separate sovereigns exception is applied in California. I have noticed (and been disturbed by) duplicative federal-state prosecutions becoming increasingly common. This trend is in part because of the growing scope of federal criminal law. In addition, I think that states are benefiting from the exception to help fill investigative gaps, or refine legal arguments, that led to exoneration at the federal level. (The same goes for the federal government). Furthermore, the separate sovereigns exceptions appears to be applied more frequently in high profile cases, and/or cases involving serious charges that carry serious social stigma. For instance, the Justice Department recently brought charges against alleged Charlottesville attacker James Fields Jr., who is already awaiting a state trial in Virginia.

Mr. Gamble’s case is instructive on why the separate sovereigns exception raises serious constitutional issues and is ripe for challenge. For defendants like Mr. Gamble, the separate sovereigns exception can result in a lengthier time in custody. As a result of the duplicative conviction, Mr. Gamble must spend an additional three years of his life behind bars. This result is incompatible with the text of the Double Jeopardy Clause, and with the original purpose of the Clause and federalism more broadly. As Mr. Gamble’s petition for a write of certiorari explains:

The court-manufactured “separate sovereigns” exception— pursuant to which [Mr. Gamble’s] otherwise plainly unconstitutional duplicative conviction was upheld— is inconsistent with the plain text and original meaning of the Constitution, and outdated in light of incorporation and a vastly expanded system of federal criminal law.

I agree with Mr. Gamble’s position. The purpose of the Double Jeopardy Clause is that the State, with all its resources and power, should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to stigma, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity. The separate-sovereigns exception cannot be reconciled with this purpose.

That the separate sovereign exception has drawn scrutiny from liberal and conservative justices alike points to its fundamental unfairness. UCLA law professor Eugene Volokh noted that both Justices Ruth Bader Ginsburg and Clarence Thomas recently questioned the doctrine’s viability. While I am disturbed that the separate sovereigns exception is being applied more readily, I am optimistic that the Supreme Court will find that the exception cannot be squared with the Double Jeopardy Clause and should no longer apply.

Learn More

New Ninth Circuit ruling paves way for defense lawyers to argue that prior felony convictions for robbery under California statute should not be treated as “crimes of violence”

Posted By admin 2018-06-11 04:51:01

The Federal Sentencing Guidelines are rules that set out a uniform sentencing policy for individuals and organizations convicted of felonies and serious misdemeanors under the United States federal courts system. The Guidelines determine sentences based primarily on two factors: (1) the conduct associated with the offense; and (2) the defendant’s criminal history. I spend a considerable amount of time on each of my federal cases strategizing how to arrive at the most favorable sentence for my clients under the Guidelines. The Guidelines involve a complex series of rules, and it is important for defense lawyers to stay on top of how federal courts interpret controversial areas of these rules.

Thankfully, the Ninth Circuit provided helpful guidance for the defense this past week on cases involving prior felony convictions for robbery. Under the Guidelines, the base offense level for offences can vary depending on whether the defendant has one or more prior felony convictions for a “crime of violence.” The Guidelines define the term “crime of violence” as any offense under federal or state law, punishable for a term exceeding one year, that either: (1) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (2) falls within certain enumerated violent offences.

In Edling, the Ninth Circuit found that the district court erred in treating the appellant’s previous robbery and coercion convictions under Nevada law as a crimes of violence. Accordingly, it vacated a sentence for being a felon in possession of a firearm and remanded for resentencing.

In essence, the Ninth Circuit ruled that robbery, under Nevada law, is not a crime of violence because it can be accomplished by instilling fear or injury to property alone. The panel found that Nevada’s robbery statute sweeps more broadly than the Guidelines’ definition of a crime of violence, which requires physical force against a person. The panel further found that the robbery under Nevada law is unlike generic robbery, listed as an enumerated offence clause for crimes of violence, because generic robbery requires danger to the person, not merely danger to property. Similarly, the panel concluded that the new Guideline definition of extortion, also listed as an enumerated offence in the crimes of violence clause, does not include a threat to property.

I view the Edling decision as an exciting win for California, especially for federal clients with prior felony convictions for robbery under California statute. The Edling holding on robbery under Nevada law will likely control the question for robbery prior convictions under California law. The Ninth Circuit has previously ruled in a few cases that Nevada’s robbery statute is materially indistinguishable from California’s robbery statute. Accordingly, the Ninth Circuit should rule in future cases that robbery, under California law, is not a crime of violence. Going forward, defense lawyers should fight against any prosecutor’s claim that robbery in California is a crime of violence.

Learn More

The Ninth Circuit Fails to Remedy Serious Brady and Giglio violations

Posted By admin 2018-05-02 17:22:22

The Ninth Circuit in the recent Garrison decision handed down derisory curative instructions for serious and repeated Brady and Giglio violations. There was no outrage expressed or even demand for training or reform. The panel affirmed a conviction for conspiracy to distribute controlled substances. As a lawyer who specializes in federal drug cases, I have fought hard to remedy Brady and Giglio violations, and I am troubled that the Garrison decision could drain the defense bar of litigation tools to protect important due process rights for our clients in the future.

The appellant Garrison was a physician’s assistant. His clinic used patient recruiters to bring in homeless people to prescribe OxyContin, and the clinic then relieved patients of the pills and sold the OxyContin illegally. Much of the Garrison decision decried the dangers of opioids and lectured on the responsibilities of medical professionals rather than narrowing in on the responsibilities of our government to follow due process standards, which was the subject of this appeal.

The Brady and Giglio violations in this case were serious. Garrison presented the perfect factual matrix for the panel to reprimand government due process violations. Before and during trial, the government repeatedly failed to timely disclose information to the defense, as was required by law. For example, two government cooperators helped a third witness fabricate a false medical report and submit it to a probation officer and a judge. Though the government knew, it did not disclose notes of this conduct to the defense.

In addition, a cooperating co-defendant who was given a special deal that allowed her to continue to work in the medical field was not disclosed to the defense (or court) even after the cooperator testified in direct. It is rare that Brady and Giglio violations are so clear-cut because often the secret nature of such violations prevents the defense from discovering them and litigating.

The panel agreed with Garrison that there is no dispute that the government failed to comply with Brady and Giglio requirements. However, the panel found that the trial court’s jury instruction that the government had disclosed evidence late and that the jury could draw adverse inferences from that late disclosure remedied these violations.

This ruling is disturbingly toothless, and the panel failed to take a nuanced view on whether such jury instructions were sufficient. The district court did not provide a fulsome explanation of the due process rights at stake. Merely telling a jury that it can find a defendant–who it just heard overwhelming inculpatory evidence about, and for a serious crime that is notorious in the news–not guilty due to late disclosure misses the point. Framed this way, late disclosure appears trivial, like bad housekeeping rather than bad faith law enforcement. When fundamental due process rights are at stake, juries should be shown the big picture–the importance due process rights play in protecting the integrity of our criminal justice system. The panel’s decision in Garrison similarly lacked this critical perspective.

The Garrison decision seems to tacitly condone wholesale government Brady and Giglio violations so long as the evidence gathered supports a conviction. This, of course, will only strengthen a culture of impunity felt by some prosecutors, which the Ninth Circuit warned against only five years ago in the Olsen decision, where it concluded that the “epidemic of Brady violations” was something that “only judges can put a stop to.”

Learn More

U.S. Supreme Court Finds that a Crime-based Removal Provision is Unconstitutionally Vague

Posted By admin 2018-04-23 01:30:28

In California, defense lawyers have a legal and ethical duty to advise clients on their criminal cases’ immigration consequences. This duty is extremely important because a criminal conviction can result in deportation, even for an immigrant who has lived and worked legally in the United States for decades. In light of the Trump administration’s emphasis on the removal of “criminal aliens,” we are seeing an increase in litigation of criminal removal cases, and gaining clarity in this complex area of the law.

As a criminal defense lawyer working in Los Angeles, I represent many clients whose immigration status is threatened by their criminal charges. This is why I am passionate about following developments in criminal-removal cases, and am particularly excited about a U.S. Supreme Court case decided this week called Sessions v. Dimaya. The Dimaya case involved a constitutional challenge to a criminal-removal provision in the immigration laws, which historically have been almost wholly immune from judicial review.

The defendant, James Dimaya, challenged the constitutionality of a provision in the Immigration and Nationality Act (INA) allowing for deportation for aggravated felonies involving “crimes of violence.” An immigrant convicted of an “aggravated felony” under 8 U.S.C. §1101(a)(43) is subject to mandatory removal and is ineligible for most forms of relief from removal. The definition of “aggravated felony” incorporates by reference 18 U.S.C. §16(b). Section 16(b) defines a “crime of violence” to encompass “any … offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” What constitutes a felony involving a “crime of violence” is a murky legal issue that courts have interpreted differently. The result is an unpredictable and counterintuitive body of law.

For example, Mr. Dimaya,had two residential burglary convictions, neither of which involved violence. He was charged under California statute, which defines residential burglary so broadly that it could cover dishonest door-to-door salespeople.

Is a burglary a “crime of violence” when it need not entail any actual violence? Immigration judges held that it was, and that Dimaya’s convictions fell within the “residual clause” of the definition of a violent crime. This allowed Mr. Dimaya’s deportation to move forward. Mr. Dimaya appealed, challenging the constitutionality of this “residual clause.” He argued that the provision is too vague to comport with the Due Process Clause, which guarantees that ordinary people have fair notice of the conduct a law prohibits. The 9th U.S. Circuit Court of Appeals agreed, holding that the residual clause violated due process.

The U.S. Supreme Court affirmed the 9th Circuit’s ruling that Section 16(b) is unconstitutionally vague. The Court noted that to determine whether a person’s conduct falls within the ambit of Section 16(b), “courts use a distinctive form of what we have called the categorical approach.” Rather than assessing whether the particular facts of someone’s conduct pose the substantial risk required under the statute, courts consider the overall nature of the offense, and ask “whether ‘the ordinary case’ of an offense poses the requisite risk.” Defining the “ordinary case” under the “crime of violence” provision poses vagueness and due process problems, including unpredictability and arbitrariness. Mr. Dimaya’s case is illustrative. It defies logic that Mr. Dimaya could be deported for committing a so-called “crime of violence” when the crimes he was convicted of involved no violence.

The Court’s finding that this residual clause deprives immigrants of fair notice as to what qualifies as a “crime of violence” will create more uniform, predicable law. In reaching its decision, the Court pointed to judicial disagreement over what crimes count: Some federal appeals courts have found that car burglary, statutory rape, evading arrest, residential trespass, unauthorized use of a vehicle, stalking, and firearms possessions are crimes of violence. Other appeals courts have reached opposite conclusions. This made it difficult to provide concrete legal advice to clients on how certain outcomes to their criminal cases could affect their immigration status.

Sessions v. Dimaya is beneficial to non-United States citizens who are facing felony charges in the United States for non-violent acts. Such individuals should seek representation from a criminal lawyer who is well-versed in the recent changes to criminal removal case law.

Learn More

Federal Government Given Green Light to Prosecute Medical Marijuana Growers in California

Posted By admin 2018-04-23 01:19:47

As a criminal defense attorney who specializes in drug offences, I am fascinated by the conflicting state and federal laws on the use and cultivation of marijuana in California. My law firm is based on Los Angeles, a city that has long been at the forefront of efforts to reform cannabis laws. In addition, I am among a minority of defense lawyers in California who work on drug cases at both the state and federal levels. The nuances of state and federal law regarding marijuana are critical to my practice, but also the marijuana industry. A significant new decision from the Ninth Circuit provides important guidance on how courts in California will deal with federal prosecutions of marijuana cases in the Golden State.

The US Court of Appeals for the Ninth Circuit ruled in United States v. Gilmore that the federal government can prosecute cases where marijuana is grown on federal land in California. This may come as a surprise to some because marijuana is legal for both medical and recreational use in California. However, marijuana remains a Schedule I prohibited drug under federal law, and the U.S. Constitution provides that the federal government is free to enforce its laws on federal lands.

The Ninth Circuit’s decision was in the case of Russell Gilmore and Richard Hemsley, who were charged with conspiracy and growing marijuana illegally on land under control of a federal agency in El Dorado County, east of Sacramento. The Ninth Circuit in Gilmore affirmed the district court’s denial of a motion to enjoin the federal government’s prosecution.

The defendants in Gilmore tried to stop the prosecution of their case under the Consolidated Appropriations Act, which Congress passed to bar the Department of Justice from using government funds in ways that prevent states from implementing medical marijuana laws. In my view, Congress’ prohibition could reasonably be interpreted as banning or at least discouraging prosecutions of medical marijuana growers in states where marijuana is legally grown and consumed. This reading would allow states to implement local medical marijuana laws without federal interference.

However, the Ninth Circuit found in Gilmore that even if state law tolerated marijuana cultivation on public land, enforcing federal law that prohibits cultivation on federal land does not “prevent” California from otherwise implementing its medical marijuana regime. The result in Gilmore was that the defendants, who did not even know that their medical marijuana plants were on federal land, were subject to prosecution by the federal government.

The decision was an unexpected turn for the defendants, as well as some cannabis attorneys and the marijuana industry in general. The U.S. Justice Department had laid off prosecutions for medical marijuana cultivation in the Obama era, and California marijuana bloomed in the meantime.

However, the ruling was not surprising to me. In an earlier decision, United States v. McIntosh, the Ninth Circuit concluded that Congress’ prohibition applies narrowly to those specific rules of state law that authorize the use, distribution, possession or cultivation of medical marijuana. Accordingly, the Ninth Circuit’s interpretation of Congress’ prohibition is that it does not limit the U.S. government’s ability to enforce federal drug laws on federal land.

In addition, U.S. Attorney General Jeff Sessions recently rescinded Obama-era guidance that generally allowed states to implement their own marijuana laws without federal interference. The Justice Department issued a memo on marijuana enforcement in January 2018 which denounced the Obama administration’s guidance on marijuana laws as “undermining the rule of law”. The memo directed all U.S. Attorneys to use previously established prosecutorial principles to enforce federal drug laws, which, of course, reflected a tough on marijuana mentality.

The federal government’s decision to prosecute in Gilmore seems to reflect a revived interest in Washington to be tough on marijuana. The Ninth Circuit’s ruling shows that it is still important for California’s marijuana industry to closely follow federal law pertaining to cannabis, even though recreational use of cannabis is legal at the state level. Participants in California’s marijuana industry should seek advice from an attorney who specializes in both state and federal drug crimes to better understand the nuances of cannabis law.

Learn More