The First Circuit Court of Appeals upheld the conviction of Thomas Kasenge for aiding and abetting the theft of his own identity. Kasenge’s housemate, Pius Mayanja visa expired and he was living in this country without proper immigration documentation. As a result he was unable to find work. Kasenger allowed Mayanja to use his driver’s license and social security card in exchange for a small fee.

Kasenge was charged with aggravated identity theft. He argued that he could not be convicted because he consented to Mayanja using the license and social security card.

The statute reads:

Whoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.

Kasenge argued that since he allowed Mayanja to use his identification Mayanja had lawful authority to use the identification and therefore it was not illegal. But the Court, citing United States v. Yeifrin Rafael Ozuna-Cabrera ruled that the statute “does not require theft, or any other illicit method of procurement, of the means of identification.”

Kasenge also argued that since “any transfer, possession, or use of another person’s means of identification during and in relation to a § 1028A(c) felony is always illegal, it could never be done with lawful authority under our interpretation of § 1028A, thus rendering the phrase “without lawful authority” redundant.” However the court found numerous examples of “transfer, possession, or use of another person’s means of identification” to be legal such as the transfer of identification to an employer to allow an employer to process a job application. Thus it rejected Kasenge’s argument and upheld his conviction.

The unspoken statement is that since aggravated identity theft does not actually require theft of documents but only the “transfer, possession, or use of another person’s means of identification” of another person’s identity documents one can aid and abet another person’s use of your own documents.

Recently we seem to be having a run of double jeopardy cases. I don’t believe we should credit the Roger Clemens case for the run but it did seem to start with him. Today, we look at a rather unique Ninth Circuit case.

Gabriel Alvarez-Moreno was charged in Federal Court with two counts of transporting undocumented immigrants for profit. Shortly before his trial his attorney and the Assistant U. S. Attorney agreed that a jury trial would be waived and a court trial would be held. However, Alvarez-Moreno never signed the necessary documents and the judge did not voir dire him to insure that the waiver was voluntary. He was convicted on both counts.

Shortly after the trial and before sentencing his attorney moved to vacate the sentence based on the failure to comply with the waiver requirements. The government suggested that the motion be considered an untimely motion for a new trial or in the alternative that the judge sua sponte declare a mistrial.Alvarez-Moreno objected to the new trial motion. The court ordered a new trial and Alvarez-Moreno appealed.

The Ninth Circuit Court of Appeals ruled that there are three occasions when a new trial can be ordered without violating the Double Jeopardy Clause. First, when the defendant appeals a conviction and the court orders a new trial. By appealing the defendant waives his/her right against double jeopardy. Second, when a mistrial is declared pursuant to federal Rules of Criminal Procedure Section 26.3. It only operates to permit a second trial if manifest necessity exists and there is no judicial or prosecutorial overreaching aimed at triggering the mistrial. Furthermore the court held that the mistrial must be declared before the verdict is reached. Finally a new trial is permissible if it is as a result for a motion for a new trial is made by the defendant. Again a motion for a new trial acts as a waiver of double jeopardy claims. None of these applied to Alvarez-Moreno and therefore a second trial was prohibited.

Juan Leonardo Matus-Zayas was convicted on various counts of harboring and transporting undocumented immigrants. At his trial the government read into the record the depositions of three material witnesses which the court had previously released from custody.

On appeal the defense raised a number of objections to the use of the depositions at trial. The most important objection was that it violated the Confrontation Clause. However, since the defense failed to raise the issue at trial it was necessary to show that there was plain error in the admission of the transcripts instead of the more demanding de novo review.

The Confrontation Clause prohibits the admission of hearsay statements at trial unless the witness is unavailable and the opposing party had a chance to cross examine the witness prior to trial. Here the defense had a chance to cross examine the material witnesses at the deposition but the prosecution made no effort to show the witnesses’ unavailability at trial. The need to show unavailability is well known and it was plain error to admit the transcripts into evidence despite the lack of an objection from the defense.

However, the Ninth Circuit found that the admission of the transcripts did not “seriously affect the fairness, integrity, or public reputation of judicial proceedings” and therefore refused to reverse the convictions.

New York and Illinois have withdrawn from Homeland Security’s Secure Communities Program. Under the Secure Communities Program ICE, a division of Homeland Security has a direct computer connection to each county or state to check the immigration status of each person arrested. Its stated goal is to deport noncitizens convicted of serious offenses. But in reality it gives them the chance to deport any noncitizen who is arrested whether or not the person is charged or convicted of any offense.

In Illinois studies showed that 30 per cent of those deported under the program had never been convicted of any crime and only 20 percent had been convicted of a serious crime.

California and Massachusetts are also considering withdrawal from the program.

One problem from the point of view of law enforcement and the immigration community is that Secure Communities inhibits the reporting of crime within the immigrant community. For example, an undocumented immigrant is less likely to report domestic violence if they know that the perpetrator is likely to be deported. Yes, they want the domestic violence to end. Yes, they want the perpetrator to receive treatment. But they don’t want their loved one, who they often depend upon for financial support, to be deported.

San Francisco County Sheriff Michael Hennessey is refusing to turn over those charged with minor misdemeanors to Homeland Security’s Immigration and Customs Enforcement (ICE) unit.

ICE through its Secure Communities Program obtains the fingerprints of everyone who is arrested and places a detainer on undocumented immigrants.

After former California Attorney General Jerry Brown agreed to join the Secure Communities Program, Sheriff Hennessey and the city of San Francisco attempted to opt out of the program but ICE refused to recognize local attempts to opt out.

While Secure Communities is supposed to provide a method to deport those charged with serious felonies many immigrants charged with misdemeanors and infraction have been deported under the program.

According to Sheriff Hennessey ICE detainers are not mandatory and he is free to ignore them. San Francisco is a Sanctuary City. As part of the Sanctuary City policy city officials are not supposed to cooperate with ICE in the deportation of those charged with misdemeanors. Sheriff Hennessey has developed a compromise between the Sanctuary City policy and ICE’s Secure Communities. He will not comply with the voluntary detainers in so far as they request those charged with minor misdemeanor such as petty theft, jay walking, or driving without a license, but he will comply with detainers when they are for those charged with major misdemeanors such as those dealing with violence, guns, or sex offenses.

It seems to me, that while Sheriff Hennessey is taking a step in the right direction, if the detainers are not mandatory, he has a duty to fully comply with the Sanctuary City policy and not turn over anyone charged with a misdemeanor to ICE.id

Agostino Accardo was convicted of making an extortionate extension of credit (18 U.S.C. § 892(a)). The Board of Immigration Appeals (BIA) found 18 U.S.C. § 892(a) to be an aggravated felony and ordered Accardo deported. Aggravated felonies include crimes of violence and the BIA ruled that 18 U.S.C. § 892(a) was a crime of violence.

Accardo appealed to the First Circuit Court of Appeals.

The BIA used a categorical approach to determine that Accardo was deportable. Under the categorical approach if a statute can only be violated by the use of violence no further investigation needs to be done, The immigrant is deported.

An extortionate extension of credit is defined by 18 U.S.C. § 891(6) as:

any extension of credit with respect to which it is the understanding of the creditor and the debtor at the time it is made that delay in making repayment or failure to make repayment could result in the use of violence or other criminal means to cause harm to the person, reputation, or property of any
person.

The First Circuit reversed the finding of the BIA. Under the statute the crime can be violated if the parties to the agreement understand that the failure to timely make payments will result in action that violates the law and that harms the person’s reputation. Since activity that harms the reputation is not necessarily violent the categorical approach cannot be used.

The First Circuit remanded the case to the BIA for a determination of whether the second line of investigation is appropriate. When the categorical approach does not result in deportation the courts are mandated to use the modified categorical approach. Using this tool the court considers a limited number of documents (charging documents, the written plea agreement, the transcript of the plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented) to determine if violence was used in commission of the crime. If so Accardo may still be deported.

Cesar Julio Salazar-Mojica was convicted of a felony assault with a deadly weapon in California in 1980. He was placed on probation. The probation was revoked in 1982 and he was sent to prison. When he was released from prison he was deported to Mexico.

On June 5, 2008 ¹he was arrested near the border and charged with returning to the United States after being deported in violation of 8 U.S.C. § 1326. While awaiting trial on the Federal charge, Salazar-Mojica applied to the state court to reduce his felony charge to a misdemeanor. The application was granted pursuant to California Penal Code Section 17(b). Never the less the Federal Court in determining the guidelines on the Section 1326 charge gave him a 16 level enhancement for a prior felony conviction involving violence. ²

Salazar-Mojica’s guideline range was for between 84 and 105 months. He was sentenced to 66 months.

The Ninth Circuit joined other circuits in finding that the reduction of a felony to a misdemeanor does not affect the enhancement. The crucial time according to the appellate court is the time of the deportation. If it is a felony at the time of the deportation it remains a felony for the purposes of the enhancement.

ICE claims to have definitively decided not to allow individual counties to opt out of its Secure Communities Program. A number of counties including California’s San Francisco and Santa Clara counties as well as Virginia’s Arlington County and Washington D. C. have requested to opt out of the program following the decision of the state Attorneys General to enroll the state in the program.

A community that signs up for Secure Communities electronically provides all fingerprints of those arrested and booked to Homeland Security’s Immigration and Customs Enforcement unit (ICE).

Theoretically, according to ICE, it only uses the information to deport the most serious violators of our laws. But, the truth of the matter is that the program has been used to deport numerous individuals who have no record or who have only infraction or misdemeanor records.

Furthermore, according to San Francisco Sheriff Michael Hennessy the program scares people into not reporting crimes. For example a mother may not report her husband for domestic violence if she is afraid that the father of her children and her only means of support will be deported. The same reasoning may prevent an elder person from reporting a child who is abusing her or a neighborhood kid who is writing graffiti on the walls.

Arizona’s new immigration law, SB 1070 calls for the arrest of anyone who cannot prove they are in the country legally. As a result, if the legislation is found to be constitutional, thousands of people will be jailed for being unable to show documentation that they entered the country legally. One group that will make a lot of money off of this is the private prison industry.

A study by NPR showed that the Arizona legislation was drafted by American Legislative Exchange Council {ALEC) an organization that brings together legislators and corporate lobbyists. Both Arizona state Sen. Russell Pearce, the primary sponsor of the legislation and the Corrections Corporation of America, the largest owner of private prisons in the country are members of ALEC and were present at the meeting where Pearce presented the idea to ALEC.

While legislators pay $50 to join ALEC 200 corporations pay tens of thousands of dollars to belong. The money is used to pay the way of legislators to three conferences a year where they meet with lobbyists and are wined and dined by them.

Pearce’s legislation had thirty-six co-sponsors shortly after he filed it with the Arizona Senate. Two thirds of the co-sponsors either attended the ALEC meeting where the legislation was written or are members of ALEC. Thirty of the thirty-six co-sponsors received donations either from the Corrections Corporation of America ( CCA) or other corporations that own private prisons. Arizona governor Jan Brewer, a major supporter of SB 1070,is a major recipient of CCA money. Her campaign manager is a lobbyist for CCA. Her communications director, Paul Senseman is a former lobbyist for the company and Senseman’s wife continues to lobby for the company. Company employees and executives have donated significant amounts to her campaign and to Brewer supported causes.

Today the jury will start deliberating in Scranton, Pennsylvania in the trial of Brandon Piekarsky and Derrick Donchak who are charged with a hate crime and a civil rights violation for the murder of Luis Ramirez. It is alleged that Piekarsky, Donchak, and a group of their high school buddies killed Ramirez because they were upset with the increase in the Hispanic population in their hometown of Shenandoah.

According to the Associated Press article the teenagers were tried and found not guilty on serious state charges and are now being charged in Federal Court. A half dozen inebriated members of their high school football team, according to the prosecutor, acted as a team in attacking the twenty-five year old Hispanic man after they attended a block party.

At one point during the fight Ramirez walked away. Then one of the teenagers yelled racial slurs at him and he charged towards them.

Certainly the death of Ramirez is a tragedy, but a number of a number of basic American traditions are brought into question by the trial. While no strict double jeopardy question arises since the Federal charges are different from the state charges for which the men were found not guilty. But do we really want to give the government two bites of the apple. They already put the defendants through one serious trial and now they are facing life in prison in a second trial for the same act.

Ramirez left the fight and then came back to renew it. I do not know about Pennsylvania law but under California law and the law of many states Piekarsky and Donchak had no duty to retreat. They would have had a right to defend themselves. As the Supreme Court recently pointed out in McDonald the right to defend oneself, even with a gun and there were no guns involved in this case, is fundamental to the American way of life.

A third issue is that the four football players are being treated as a team. Two of them have plead and the other two are on trial but the prosecutor calls them a team. Traditionally we insist upon individual responsibility. We do not blame everyone walking home in the group because one of the group, Brian Scully yelled racial slurs at Ramirez. Nor do we hold it against the entire group that Collin Walsh knocked Ramirez out or that Piekarsky kicked him in the head while he was unconscious.

Regardless of what you think about these American traditions the law is not the best way to change them. Regardless of what the jury does, the right of self defense in strongly ingrained in our society. Likewise nothing that happens in Scranton is going to change American individuality or view about subjecting defendants to multiple trials for the same behavior. These values are taught to us as children and trials are not going to change them.

On the other hand it does not mean that the men should go free. Nothing in our traditions endorses murder and murder should be punished, unless as I suspect the jury in the state case found that the men were acting in self defense.