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.

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.

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.

San Francisco Sheriff Michael Hennessy requested that San Francisco opt out of U.S. Immigration and Customs Enforcement’s (ICE) Secure Communities Program.

Secure Communities is a program under which the fingerprints of everyone arrested in a community are provided to ICE. However under San Francisco’s Sanctuary City ordinance only those immigrants who are charged with felonies, found to have a previous felony or ICE contact in their criminal history are reported. Initially ICE promised that only those charged with felonies would be subject to deportation.

As a study quoted in the New York Times shows nationwide twenty-six per cent of those deported under the program do not have criminal records. In some places the percentage is higher. In Maricopa County, Arizona the percentage is fifty-four per cent and in Travis County Texas it is eighty-two percent. By ICE’s own records seventy-nine percent of those deported either had no criminal record or convictions for minor offenses.

Prior to the June 8th implementation of Secure Communities in San Francisco, ICE and California Attorney General Jerry Brown told Hennessy that there was no way to opt out of the program. But in response to statistics showing that many of the people deported are innocent or are guilty of only minor offenses and ICE has agreed to make the plan voluntary. They have agreed to meet with Hennessy to discuss the city’s objections to the program. As Hennessy has pointed out in the past many immigrants are intimidated by the program and refuse to report criminal activity due to fear of deportation. A wife may not report domestic violence, for example if she knows that her husband may be deported. She want medical help for herself and treatment for her husband but she does not want him to be deported where he will not be able to support her and have contact with their children.

U.S. District Judge Susan Bolton issued an order restraining the State of Arizona from enforcing significant parts of Arizona’s new restrictive law criminalizing and limiting the activity of illegal immigrants. The order prohibits the enforcement of provisions that: require officers to make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there is a reasonable suspicion that the person is unlawfully present in the United States, and requiring verification of the immigration status of any person arrested prior to releasing that person; creating a crime for the failure to apply for or carry alien registration papers; creating a crime for an unauthorized alien to solicit, apply for, or perform work; and authorizing the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable from the United States.

The court found that these sections of the law are most likely preempted by Federal law and that the government is likely to succeed in have these sections found to be unconstitutional. Furthermore it found that the failure to issue a temporary restraining order banning these sections would result in irreparable harm to the Federal government.

While the judge refused to grant a restraining order regarding other sections of the bill and the Federal government did not challenge all of the section, Thus some sections will go into effect today the granting of the restraining order was seen as an important if temporary step by those who oppose the bill,

An El Salvadorean citizen residing in San Francisco was seized by Immigration and Customs Enforcement (ICE) as an illegal alien after he was stopped for making an inadequate stop at a stop sign. When he was stopped the officer asked him for his driver’s license. He did not have one. (Of course it is hard if not impossible for an illegal alien to obtain a driver’s license.) He was then arrested for driving without a license. When his name was placed in the computer it was discovered that while he had no criminal record he had an immigration warrant and he was seized by ICE.

San Francisco is a sanctuary city. Under the Sanctuary Ordinance no city funds can be used to assist in the deportation of a non-citizen. Originally there was an exception for those convicted of a felony. Recently, after the Federal government threatened to arrest juvenile probation officers who were shielding juveniles from deportation the rule was amended to allow the deportation of anyone charged with a felony even if the charges were eventually dismissed or reduced to a misdemeanor. But in any case making an improper stop is only a traffic infraction and driving without a license is at most a misdemeanor. Neither should result in a report to ICE or deportation. But someone, probably the police officer apparently violated the Sanctuary Ordinance and reported the poor man who had lived in the city for five years to ICE and he is now facing deportation.

Perhaps the ironic part of the incident is that it occurred on June 2nd. On the eighth ICE’s Secure Communities Program took effect in San Francisco giving it access to all fingerprints taken at the jail allowing for the deportation of any illegal alien even if the person is never charged with a crime or is only charged with an infraction or a misdemeanor.

The Attorney General yesterday sued the state of Arizona to prevent S.B. 1070, the state’s new tough immigration law from taking effect on the 29th. Among other things the law makes it a state crime to be in the state illegally. It will require police, while enforcing other laws, to question a person’s immigration status if there’s reasonable suspicion that the person is in the country illegally. It will also require legal immigrants to carry proof of their immigration status.

It bans day laborers from blocking road while seeking employment. There are other section regarding the impounding of vehicles and employment but these are not being challenged in the Federal suit. A number of civil rights organizations have filed a separate suit challenging the entire law.

The Federal government claims that under the Constitution’s Supremacy Clause it has sole power over immigration law. In some areas, such as international relations and the ability to declare war the Federal Government has the sole power to act. In other areas the Federal government and the state governments share power but states cannot enact laws that limit or counteract Federal statutes. For example both the Federal government and the state governments have passed laws criminalizing the use and trafficking of certain drugs The problems occurs when states pass laws decriminalizing the medical use of marijuana. The Federal courts have held that these laws are a violation of the Supremacy Clause and are invalid.

The Federal suit points to the Federal Government’s power to set “uniform Rule[s] of Naturalization” as justification for giving the Federal government sole power over immigration law.

Jose Angel Carachuri-Rosendo, a lawful permanent resident, was convicted of two drug related misdemeanors in Texas, First he was convicted of possession of less than two ounces of marijuana and then he plead guilty to possession of one anti-anxiety pill without a prescription.

Normally conviction of a misdemeanor does not result in deportation. But under Federal law and under Texas law a second possessory conviction can be charged as a felony. Narcotics related felonies are considered aggravated felonies and are subject to deportation. Furthermore those convicted of aggravated felonies cannot request discretionary cancellation of removal which allows a judge to determine whether an individual should stay in this country despite he/she being deportable.

The district attorney in Texas had the option of charging Carachuri-Rosendo as a recidivist with a felony. But they did not. None the less, the Federal government moved for deportation because under Federal law he could have been charged as a felon and be deported.

In 2006 the Supreme Court ruled in Lopez v. Gonzales that only those narcotics related crimes that are chargeable under Federal law as felonies subject a person to deportation. In other words, if a person is convicted of a felony in state court but under Federal law it is a misdemeanor the person cannot be deported. For example, if possession of a drug is a felony in some states but can only be charged as a misdemeanor in Federal Court the person cannot be deported.

The Court of Appeal therefore decided that since it could have been a felony if if it had been charged in Federal Court, it should be treated as an aggravated felony. But the Supreme Court found that since he had not been convicted of a felony it was not an aggravated felony. While Carachuri-Rosendo is deportable he is subject to cancellation of removal and the District Court must use its discretion on whether or not he should be deported.