Yesterday, we discussed the use of aggravated felonies for the purpose of immigration. Specifically we looked at the courts’ consideration of prior conviction by looking at the actual conduct. In passing, we considered the contrary method of looking at prior convictions by using the generic or categorical approach. Unlike the actual conduct test, the generic or categorical test looks at the code section of the prior conviction and compares it to the statute. Last week the First Circuit Court of Appeals considered a case under the Armed Career Criminal Act (ACCA).

John Pakala was convicted of selling stolen firearms. At sentencing it was found that he had three prior convictions for violent felonies. He had a Nevada conviction for attempted burglary and two Florida convictions for burglary. In United States vs. Pakala the court used the generic or categorical method to determine whether the Florida burglary statute comes under the ACCA.

Under the ACCA, an individual convicted of being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1), as Pakala was here, is subject to a sentencing enhancement as an armed career criminal if he “has three previous convictions by any court . . . for a violent felony or a serious drug offense, or both.

The ACCA considers burglary to be a violent felony so at first glance Pakala would appear to have three prior convictions for violent felonies. But since each state defines burglary differently, in order to have a consistent Federal law, the ACCA looks at the essence of burglary. Under Federal law, therefore, the courts consider a burglary to be a crime

regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime

But the Florida law is broader than the ACCA definition. It includes the curtilage surrounding the house. Since Pakalawas was convicted under the Florida burglary law, and on the face of the complaint he could have entered the curtilage it would appear that the two Florida priors, using the generic or categorical method, are not violent crimes under the ACCA.

But Florida uses a very narrow definition of “curtilage.” Under Florida law the curtilage is “an enclosed area surrounding a structure.”

The court citing 18 U.S.C. § 924(e)(2)(B)(ii) found that

The ACCA contains an ‘otherwise’ clause, which defines a ‘violent felony’ as a crime that, along with “\’burglary,’ otherwise involves conduct that presents a serious potential risk of physical injury to another.

Still using the generic or categorical method, the court found that entry into the curtilage, as defined by Florida law, is a violent felony since it “involves conduct that presents a serious potential risk of physical injury to another.”

So in any case, Pakala loses. He was sentenced to 235 months in prison for stealing five guns from his employer’s house and selling them.

The Supreme Court again considered the issue of what is an aggravated felony for immigration purposes this week in Nijhawan v. Holder. In immigration law the question is an important one because convictions for aggravated felonies lead to deportation.

Aggravated felonies are defined in 8 U. S. C. 1101(a)(43). At question in Nijhawan is subdivision (M)(i) which involves offenses that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000. The question is what convictions involve a loss of over $10,000. There are two ways to look at it. The first is called the categorical or generic method. It says that anyone who is found guilty of fraud or deceit where the crime necessarily involves a loss of $10,000 is guilty of a crime involving an aggravated felony. For example if there was a crime called Fraud Involving a Loss of Over $10,000 and Mr. Nijhawan was found guilty of it, using the generic or categorical method he would be guilty of an aggravated felony. The problem is there are very few such crimes. In fact, Mr. Nijhawan was found guilty of conspiring to commit mail fraud, wire fraud, bank fraud, and money laundering. The crimes do not list a specific amount of loss. Thus using the generic or categorical method he is not deportable. This leads to the second possible way to define a aggravated felony. It is to look at the specific conduct of the individual. At sentencing on the fraud case Mr. Nijhawan stipulated that the loss was over a 100 million dollars. If you consider the actual conduct Mr. Nijhawan is deportable.

In cases under the Armed Career Criminal Act (ACCA) the courts have used the generic or categorical method. The court noted that in interpreting the ACCA courts have found that it is difficult to go back later, often only on a paper record and use the actual conduct method. Furthermore. The ACCA and Section 1101 list many actual crimes susceptible to to the generic or categoric method.

But the Supreme Court decided to use the actual conduct method. It pointed out that Congress could not have intended to use the generic or categorical methods since so few crimes would be applicable. Furthermore, the language of Section 1101 seems to imply that the conduct method should be used. For example, some offenses are only aggravated felonies if it is not the first conviction for the offense or other offenses are only aggravated felonies if the defendant had a commercial intent. In these cases only the actual conduct method appears to be applicable.

Holding that Section 1101 involves the actual conduct method the Supreme Court upheld the deportation of Mr. Nijhawan who fraudulently obtained over 100 million dollars.

Friday, we looked at the problems that immigrants have with the law. Today we look at another aspect of the problem.

Juan Teresco was convicted of attempted assault, an aggravated felony, much like the thee problem of Satbir Singh we discussed, Friday.

As a result of his 1997 conviction, Turesco, a citizen of El Salvador was deported. After being deported he came back to the country. In 2006 he was arrested in New York and he gave the name of Danny Ortega. After being told that it was a crime to lie to a Federal agent, he admitted that he was Juan Turesco. He also admitted that he was born in El Salvador and that he had been deported. At the time of his arrest the officers found an ID in the name of Danny Ortega on him. He was indicted for illegally reentering the country.

But Turesco’s troubles were just beginning. He told his lawyer, a Federal Public Defender that his name was really Danny Ortega and that he was a US citizen. He gave his lawyer a copy of a birth certificate for Danny Ortega. His lawyer then forwarded the birth certificate to the US attorney expecting a dismissal of the case.

But instead the US attorney got a superceding indictment charging Turesco with illegally entering the country, falsely claiming to be a United States citizen and an aggravated identity theft.

At trial, the government called the real Danny Ortega and Ortega’s mother to show that Turesco lied about his identification. They also called the INS agent who witnessed Turesco’s being placed on a plane and being deported in 1997.. Furthermore they called a fingerprint expert to testify that Turesco’s fingerprints were identical to the fingerprints of the person deported in 1997.

Turesco was convicted on all three counts. He was sentenced to 125 months on the illegal reentry and lying about his citizenship. He was give a 24 month consecutive sentence on the aggravated identity theft count,

The trial judge refused to give an instruction that the jury had to find that the government had to prove beyond a reasonable doubt that Turesco knew that the identification belonged to someone else. Therefore the appellate court reversed the conviction on count three which was an aggravated identity theft based on the recent Supreme Court decision in Flores-Figuroa v. Holder (See post of May 6, 2009) finding that the government had to prove beyond a reasonable doubt that the defendant knew that the false ID belonged to someone else.

After the trial judge gave most of his instructions he adjourned the court for the day. The next morning he told the lawyers that the marshals told him that Turesco refused to come to court. Turesco’s lawyer asked the court to wait until he could go to the detention center to get his client. The court refused. The judge instructed the jury to ignore Turesco’s absence from the court. While a co-counsel represented Turesco, his lawyer went and got him. Although Turesco had earlier begged to come to court, the marshal had refused to double cuff him which was necessary due to a shoulder injury. His attorney asked for a mistrial on Fifth and Sixth amendment grounds. The court denied the motion. During deliberation the jury asked to see Turesco and their request was granted.

The appellate court found that Turesco had a right to be present but that the right could be waived. It further found that the trial court had not held the necessary evidentiary hearing to determine if Turesco waived the right. But it also found that due to the overwhelming amount of evidence and due to Turesco’s presence when the jury wanted to see him the error was harmless and he would have been convicted anyway.

The lesson is don’t lie to the authorities. Don’t talk to the authorities but in any case don’t lie to them. The second lesson is don’t lie to your lawyer. It sure got Turesco is a lot more trouble when he said that Ortega’s birth certificate was his. And the third lesson is does anyone really believe Turesco deserves 125 months for his violation of the law?

One of the hardest things for a criminal defense attorney to do is to deal with with non-citizen clients. Often they face deportation, exclusion, or denial of citizenship in addition to the normal punishment for a conviction. In the years I’ve been practicing I have represented numerous clients that immigrated to this country as young children with their families but have never become citizens. Many of them don’t even speak their “native” language. Many do not have any close family left in their “native” country. For many of these people the penalty of deportation is much greater than whatever time they are going to spend in jail or prison.

Of course I have other clients who after a brief period dealing with the criminal justice system tell me to get them back to their native country as fast as possible.

Then again I had a Mexican client. He plead guilty to a drug offense and the judge ordered that he be released on his own recognizance from jail at the time of his guilty plea. He was given a date for sentencing. But no one expected him to be there since he had an INS hold. I came to court on the day set for sentencing and he was not there. I asked the bailiff if he was in custody and I was told he had been released to INS. But as I was leaving the building–guess who walks in. He told me that he had been ordered back for sentencing on that date and he did not want a bench warrant. So he came back across the border and got to court only an hour late. He was sentenced. Pursuant to the plea agreement he did not do any more time in custody. Since he wasn’t in custody, the INS could not pick him up and he walked out the front door of the courthouse.

Generally ICE puts a hold on non-citizens when they are in custody. Americans know from watching too many police dramas on TV that anything you say to a peace officer can and will be used against you. Foreigners do not always know this and therefore many non-citizens make the fatal mistake of answering questions posed by ICE agents who meet them in the jail. By telling the agents their citizenship status or their place of birth they end up with an ICE hold. When this happens the jail must notify ICE when the foreign national is to be released. Then the jail or prison must hold the individual for five more days to allow ICE time to come and get him/her.

I had one client who was a French citizen. She was married to a US citizen and she could have become a US citizen is she tried. Despite (and perhaps because of) the fact that she was a drug addict and therefore subject to arrest and deportation, she never became a citizen. Eventually she was arrested with a significant amount of drugs on her. She was taken to jail and even though she was fairly smart she answered all of the questions posed by the ICE agent who put a hold on her. The ICE agents question foreign born prisoners before they are even arraigned and before they have a chance to talk to a lawyer and learn their right not to speak to the agent. My client was charged, convicted, and deported leaving her husband at least temporarily in this country.

What brings all of this up is a case out of the Fifth Circuit Court of Appeals. In Singh v. Holder the court held that a conviction for”wounding” under the laws of Virginia is an aggravated felony and a conviction for such resulted in this case in denial of citizenship.

Satbir Singh immigrated to this country in 1987. After he was here for a couple of months he was convicted of wounding in Virginia. Before he could be sentenced he returned to India. He was arrested when he reentered the country in 1998. After he was sentenced he applied for citizenship. It was denied on the basis of his conviction for an aggravated felony. He sued in the United State District Court. Summary judgment was granted to the defendants and he appealed to the Fifth Circuit.

An aggravated felony is inter alia “a crime of violence . . . for which the term of imprisonment [is] at least one year.” It includes many other offenses including those involving drugs, theft and firearms. (See USC Title 8, section 1101.)Wounding, under Virginia law, is

(a) an offense that has as an element the use, attempted use, or
threatened use of physical force against the person or property of
another, or
(b) any other 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.

The court did not have much trouble showing that wounding was an aggravated felony. But since the law took effect in 1990 a second question was raised in the appeal. Since the plea was before 1990 and the sentencing was after 1990 which date would be used. The Court did not have much trouble saying that the conviction date was the date of the sentence.

The Fifth Circuit upheld the summary judgment finding and he was correctly denied citizenship.

While this case does not involve deportation many do. Since denial of citizenship is an additional penalty, why should a non-citizen be punished more for the same criminal conduct that the citizen. This is particularly noticeable when the long term resident but non-citizen is deported. The penalty can be significantly more burdensome than the penalty for the same conduct committed by the citizen.