Split Widened: Is Use of a Fake Social Security Card for Employment Morally Turpitudinous?

Per Marin-Rodriguez v. Holder (7th Cir. Mar. 6, 2013)

This Seventh Circuit opinion widens one split, while continuing another.

The first, already extant split concerns whether immigration courts (IJs or the BIA) may consider material outside the record of conviction when determining whether a crime constitutes a crime of moral turpitude.  This blog already discussed the split here.  In brief, the CA7 and the Attorney General have concluded that, because the immigration context does not raise Sixth Amendment concerns, immigration courts should not be limited to the categorical and modified-categorical approaches to past convictions.  (p. 6-7.)  The CAs 3, 4, 8, and 11 have rejected this position.  (Id. at n.3.)  For the reasons discussed in my prior post, I am persuaded by the minority of the CA7 and AG, although the majority also has strong arguments (primarily based on a 1951 Supreme Court precedent holding that the words "moral turpitude" had a positive and fixed meaning).  To say the least, this is an issue ripe for certiorari review.

But not in this case.  This case did not even reach outside the modified categorical approach, which revealed that the alien had used a fake social security card for employment.  The CA7 joins with the CAs 5, 6, and 8 in determining that such fraudulent actions necessarily involve moral turpitude, because the false social security card is used to deceive the employer, or anyone examining the employer's records.  (Fraud is a prototypical example of moral turpitude.)  The minority--only the CA 9--relies on an entirely different statute, 42 U.S.C. 408(e)), which grants amnesty for having previously used false social security cards to aliens granted citizenship.  The CA9 believes that the exemption demonstrates that the use of a false social security card is only malum prohibitum, and not malum in se.  I would conclude the opposite.  The amnesty demonstrates that the use of a false social security card is malum in se, but to be forgiven when the alien is given a new shot at becoming a law-abiding citizen.

In all, a correct--and well-written--opinion by Judge Manion, but certainly some issues that may warrant certiorari review if a better vehicle presents itself.

Split Widened: Remedy for 6th Amendment Violations During Competency Hearings

Per United States v. Ross (6th Cir. Dec. 31, 2012)

Oh, the irony of law.  In a case of apparent first impression, (see p. 10), a divided panel of the Sixth Circuit concludes that it is statutory and constitutional error to permit a criminal defendant, who has already been deemed competent and waived representation, to represent himself at a later competency hearing.  (p. 8-9, 11.)

That's right.  First, the defendant was deemed competent.  Then, the competent defendant knowingly waived representation.  Third, at the request of the prosecutor, the district court held a second competency hearing where it permitted the defendant to represent himself.  Finally, and after conviction, the defendant claims error in permitting self-representation at the second competency hearing (when he had already invoked his right to self-representation).

One would think the doctrines of invited error and/or waiver would come into play.  But of course, those doctrines assume knowing and voluntary, i.e., competent, acts.

The circuit split comes in determining the remedy for this constitutional error, or classifying the type of error.  (See p. 16.)  Ordinarily, Sixth Amendment violations are treated as "structural" errors, with a per se rule of reversal regardless of prejudice.  The CA3--and now the CA6--applies that rule to denials of counsel at competency hearings.  Nonetheless, the CA10 and CADC have treated denial of counsel for a competency hearing as "trial" error, subject to constitutional harmless error analysis. 

Partially because of the bizarre facts of this case, I would be inclined to treat the error as "trial" error, in line with the approach of the CA10 and CADC.  The two traditional justifications for the "structural" error doctrine are not present. 

First, because the Court had already held a competency hearing and permitted Defendant to waive representation (at which times the Defendant was represented), there was no "structural defect affecting the framework within which the trial proceeds."  Arizona v. Fulminante, 499 U.S. 279, 310 (1991).  Instead, there was a mere "error in the . . . process" of this one hearing.  Id. 

Second, because the defendant had already been found competent to waive counsel initially, his lack of representation does not "necessarily render [the] criminal trial . . . unreliable."  Neder v. United States, 527 U.S. 1, 9 (1999).  Instead, the initial competency hearing, as well as the waiver of counsel hearing, create an situation where the error--like "trial" errors generally--may “be quantitatively assessed in the context of other evidence presented in order to determine whether [the procedure] was harmless beyond a reasonable doubt.”  Fulminante, 499 U.S. at 307-08.

Of course, my view depends on the particular facts of this case, whereas classification of constitutional errors must necessarily be done generally.  In all, an interesting circuit split and decision, but one not likely to get further review due to the fact-bound nature of the case and the split.

UPDATE:  additional coverage from Split Circuits

Split Widened: Does Requiring Sex Offender Registration Without a Hearing Violate Due Process?

Per Doe v. Sex Offender Registry Bd., 2008 WL 661866 (Mass. Mar. 14, 2008)

Nota Bene: The holding of this case is predicated exclusively on the Massachusetts Declaration of Rights, and thus it both does not create a direct split based on the same law and is unreviewable by the Supreme Court. However, cases on both sides of the split have previously relied on the federal Constitution.

In 1979, Plaintiff Doe entered an Alford plea to a charge of rape and was sentenced to two years of probation. Twenty-two years after completing that probation without incident, the Sex Offender Registry Board notified him that he had to register because of his conviction. Doe moved for a hearing to present evidence that he posed no threat of recidivism. The statutory provisions governing this program left the Board no discretion to waive the registration requirements for those convicted of violent crimes (such as rape), and therefore the hearing was denied.

The registration statute, as applied in this case, is unquestionably retroactive; it does not permit any discretionary consideration of Doe’s current situation. Such statutory schemes, however, are regulatory as opposed to punitive, and thus do not violate double jeopardy. Retroactive regulatory laws in Massachusetts must pass an interest-balancing test, with the burden on the challenger to prove irrationality. The Massachusetts Supreme Judicial Court holds that the failure to hold a hearing violated Doe’s right to due process.

The Third Circuit (construing New Jersey law), District of the District of Columbia, The Oregon Supreme Court, and the Pennsylvania Supreme Court have all reached a similar conclusion under the Federal Constitution’s due process provisions. The Third Circuit and Pennsylvania Court both held that the state must provide pre-notification review process wherein the state bears the burden of proof that there is a potential risk of reoffense. The Massachusetts decision is also in line with opinions from Arkansas and Ohio, which have upheld registration statutes against due process challenges because of their provisions for hearings. Courts in Alaska, Illinois, Michigan, and Washington (state) have all come to the opposite conclusion, finding no due process violation in mandatory registration even in the absence of a hearing because the prior conviction was already a matter of public record. For more on various holding concerning the validity, construction, and application of community notification statutes, see 78 A.L.R.5th 489.

Also from Massachusetts on Friday – a noted split on whether the Sixth Amendment right to counsel attaches at the time of the issuance of a criminal complaint. In Commonwealth v. Holliday, 2008 WL 662242, *12 n. 18 (Mass. Mar. 14, 2008), the Supreme Judicial Court held that the answer depends on the purpose served by the complaint under state law. Prior precedent held that a complaint in Massachusetts does not trigger the Sixth Amendment, and the Court holds that Holliday’s Miranda waiver renders the Sixth Amendment violation, if any, harmless.

Splits Created or Widened in the Circuits - 3/11-3/13

• Can a Bankruptcy Court Release a Non-Debtor from Creditor Liability when the Creditor Objects? In re Airadigm Comms., Inc., 2008 WL 649704, *25-*30 (7th Cir. Mar. 12, 2008)

The facts of this litigation, which concerns a complicated second bankruptcy reorganization plan, are largely irrelevant to the strict legal question at the heart of the circuit split. Section 524(e) of the Bankruptcy Code provides that the “discharge of a debt of the debtor does not affect the liability of any other entity on, or the property of any other entity for, such debt.” The question is whether this section precludes the non-consensual discharge of liability of a non-debtor, or merely defines the common effect of a Chapter 11 reorganization without limiting other possible equitable remedies.

As a matter of first impression, this panel of the Seventh Circuit finds that the latter definition is more consistent with the statutory text. Section 524(e) is a savings clause, and should be understood as such. “If Congress meant to include such a limit, it would have used the mandatory terms ‘shall’ or ‘will’ rather than the definitional term ‘does.’” *27. Furthermore, the traditional equitable powers of the bankruptcy court extend to marshalling the resources and permitting the non-consensual release on non-party liability. In so holding, the Seventh joins the CAs 2,4,6; the CAs 9,10 disagree and favor the first reading of this section. Even though the CAs 2,4,6,7 agree that discharge should be allowed in some circumstances, they differ as to what the governing standard should be. In this case, the Seventh Circuit finds that the release was appropriately tailored – subject to the other conditions of the plan, limited to liability in connection with the plan, and excluding willful misconduct – and necessary to effectuate the reorganization.

• Does the Dual Sovereignty Doctrine Apply to the Sixth Amendment Right to Counsel? United States v. Burgest, 2008 WL 659550, *3-*8 (11th Cir. Mar. 13, 2008)

Earl Burgest was charged for possession of cocaine in violation of Florida law. Thereafter, he was interrogated by federal investigators and indicted on two counts of possession of crack-cocaine with intent to distribute. The district court admitted the statements made during the interrogation at his trial, and Burgest was convicted. This appeal challenges the statements’ admission because, even though Burgest signed a valid Miranda waiver of his Fifth Amendment rights, he asserts the interrogation violated his Sixth Amendment rights which had attached by virtue of the state law charge.

The Eleventh rejects this argument, noting that the Sixth Amendment right to counsel is offense specific. “Because the Sixth Amendment right to counsel is offense specific, Burgest's prior invocation of his right to counsel for the charged state offense did not attach to Burgest's uncharged federal drug offenses if the federal offenses are separate offenses from the state drug offense. We hold that where conduct violates laws of separate sovereigns, the offenses are distinct for purposes of the Sixth Amendment right to counsel.” *6. In so holding, the Eleventh widens a circuit split between the CAs 1,4,5 (applying doctrine) and the CAs 2,8 (not applying).