Breaking: DCCA goes en banc to consider right to jury trial for deportable misdemeanors

The DCCA granted rehearing en banc this past Friday in Bado v. United States.  Bado held that the defendant in a misdemeanor case had a right to a jury trial where a conviction would be deemed an "aggravated felony" under federal immigration law and render the defendant deportable.  We first blogged about Bado here.  Given that Bado managed to produce four different opinions (from only three judges), perhaps rehearing en banc is not too surprising.  The panel opinion has now been vacated, so for now defense counsel should be requesting jury trials (assuming a jury trial is in your client's interest) in any misdemeanor case in which deportation is a possible outcome.

Judge Can't Wear Two Different Hats -- A Judge Ruling on a Motion To Withdraw a Guilty Plea Cannot Resolve a Factual Dispute Based on His Own Recollection of What Happened at the Plea Hearing

Jose Zalmeron v. United States (decided October 29, 2015)

Players: Associate Judges Thompson and Beckwith, Senior Judge Belson. Opinion by Judge Beckwith. PDS for Mr. Zalmeron. Trial judge: Lee Satterfield.

Facts: Mr. Zalmeron pleaded guilty before Judge Satterfield back in 1994 in a drug case. Twenty years later, he moved to withdraw his plea on the ground that he had not been advised that his conviction could cause him to be deported. Transcripts from the 1994 plea were unavailable. Without hearing from the government, Judge Satterfield denied the motion to withdraw, stating "[u]pon review of the chambers file the Court recalls" that it did advise Mr. Zalmeron of the potential immigration consequences of his plea. Mr. Zalmeron than moved for disclosure of the chambers file, both because he asserted a right to review the evidence on which the ruling was based and to allow for appellate review of the ruling. The government then chimed in, suggesting that disclosure of the chambers file was unnecessary because the court's ruling was based on the judge's own "recollection," which “exists separate and apart from the documents in the chambers file."  Judge Satterfield agreed with the government and denied the request to disclose the chambers file.  Mr. Zalmeron then moved to vacate the order and for an evidentiary hearing before an independent judicial officer, asserting that Judge Satterfield could not serve as both witness and factfinder.  And, because Judge Satterfield was now Chief Judge of the Superior Court, Mr. Zalmeron argued that all of the Superior Court judges were subject to recusal, and the hearing should be in front of a DCCA judge sitting by designation.  Judge Satterfield did not do any of that, and Mr. Zalmeron appealed.

Issue 1:  Is Mr. Zalmeron entitled to a reversal or a remand on his claim that he should be allowed to withdraw his plea?

Holding 1:  After some concessions by the government, he is entitled to a remand, but not an outright reversal.  The government did not argue that Judge Satterfield's claimed "recollection" was sufficient to support the denial of the motion to withdraw in the face of a statutory presumption that the required immigration warnings were not given.  A remand rather than a reversal was warranted, however, because the government did not waive its right to present additional evidence that Mr. Zalmeron received the required warnings.  The sequence of events in the Superior Court did not clearly put the government on notice that the failure to adduce additional evidence at that time would amount to a waiver.

If the government seeks to rely on Judge Satterfield's recollection, however, then binding precedent dictates that the hearing must be in front of a different judge because Judge Satterfield cannot be both witness and factfinder.  Apparently agreeing with Mr. Zalmeron that all the Superior Court judges would be recused given the powers the Chief Judge has over their assignments and working conditions, the DCCA would leave it up to the Superior Court to determine whether a new judge should be drawn from either the DCCA or the federal district court.

Issue 2;  Did the twenty year delay in Mr. Zalmeron seeking to withdraw his plea warrant denial of his motion?

Holding 2:  No, but any unexcused delay is a factor that the court can take into account in ruling on the motion.  The text of the statute authorizing withdrawal of guilty pleas in these circumstances, D.C. Code section 16-713, does not contain a time limitation, and it would be improper for the court to read such a limitation into the text.  Any period of unexplained delay, however, may be taken into account when the factfinder considers the credibility of Mr. Zalmeron's claim. DG

Read full opinion here.

Attempted-Battery Assault Is Not a “Crime of Violence” for Federal Immigration Purposes, No Right to a Jury Trial

Esperanza Contreras v. United States (decided August 6, 2015)

Players: Chief Judge Washington, Judge McLeese, Senior Judge Belson. Opinion by Judge McLeese. Gregory W. Gardner for Ms. Contreras. Motions Judge: Fern Flanagan Saddler. Trial judge: Michael Ryan.

Facts: Ms. Contreras became angry with her teenaged daughter and slapped her in the face, causing the girl’s nose to bleed. She was charged with simple assault, and moved for a jury trial on grounds that a conviction would subject her to possible deportation. The motion was denied and her bench trial resulted in a conviction.

Issue: Was the charged assault a deportable “crime of domestic violence” under 8 U.S.C. § 1227(a)(2)(e)(i) (2012), entitling Ms. Contreras to a jury trial?

Holding: No. Federal law requires that a deportable “crime of domestic violence” be, among other things, a “crime of violence” within the meaning of 18 U.S.C. § 16(a). Focusing on the attempted-battery type of simple assault for which Ms. Contreras argued she was convicted, the court held that such an assault is not a “crime of violence” under the federal definition because it does not require the same degree of violence. “Violence,” in the context of D.C.’s simple assault statute, refers to any “attempt to do unlawfully to another any bodily injury however small,” while the federal “crime of violence” definition requires “force capable of causing physical injury or pain to another person.” (emphasis added).

Of Note:

• The court deemed it irrelevant that the facts of the charged crime did meet the federal “crime of violence” definition because courts look to the elements of a criminal statute, not the facts of each case, to decide whether it involves a “crime of violence” under federal law.

• The court rejected Ms. Contreras’s sufficiency claim, ruling that the trial judge had an adequate evidentiary basis, in the form of harsh comments Ms. Contreras made during the incident to the effect that her daughter ought not to have been born, to conclude that she slapped the girl out of “hurt pride” rather than for disciplinary purposes. The judge thus did not err in rejecting Ms. Contreras’s parental-discipline defense. FT

Read full opinion here.