For assaults on police, the NEAR Act neither requires jury-demandable prosecution nor expands the right to claim self-defense.

Coleman v. United States (decided October 11, 2018)

Players: Associate Judges Glickman and Fisher and Senior Judge Washington. Opinion by Judge Washington. Fletcher P. Thompson for Appellant. Trial Judge: Kimberly S. Knowles.

Facts: MPD officers arrested appellant for assault on a police officer (“APO”) following an encounter outside of his vehicle. At trial, the government presented evidence that when the officers approached, appellant became agitated, ignored requests to move out of the street, and flung his arms wildly, hitting two officers. Appellant continued to resist, ripping a third officer’s uniform when police took him to the ground.

The government elected to prosecute appellant for misdemeanor simple assault, a non-jury-demandable offense, rather than APO, which would have been jury-demandable under the Neighborhood Engagement Achieves Results (“NEAR”) Act. Appellant nevertheless argued that he was entitled to a jury trial. Appellant further argued that because the government had declined to prosecute APO, he should not be bound by the limits on self-defense that apply when the complainant is a police officer. The trial court rejected both arguments and found appellant guilty of simple assault.

Issue 1: Whether the NEAR Act requires the government to charge jury-demandable APO when the complainant in an assault is a police officer?

Holding 1: No. The NEAR Act created separate APO and resisting arrest offenses in response to widespread concern that APO was too broadly defined. Although the Act also increased the penalty for misdemeanor APO and resisting arrest to make both offenses jury-demandable, there is no evidence that the Council intended to remove the government’s ability to prosecute simple assault where the complainant is a police officer. Simple assault remains a lesser and included offense of APO.

Issue 2: Whether the NEAR Act expands the right to claim self-defense in simple assault cases where the complainant is a police officer?

Holding 2: No. The rule whereby one may not use force against a police officer in self-defense unless the officer has used excessive force exists to protect officers in the line of duty. Although the NEAR Act limits what may constitute APO, there is no evidence that the Council intended to overrule the restriction on self-defense claims. Broadening the right to use force against officers would endanger them and impede their work. WC.

Read the full opinion here.

The en banc Court holds that defendants charged with deportable misdemeanors are entitled to jury trials.

Bado v. United States (en banc opinion) (decided June 21, 2018)

Players: En Banc Panel: Chief Judge Blackburne-Rigsby, Associate Judges Glickman, Fisher, Thompson, Beckwith, and Easterly, and Senior Judges Washington and Ruiz. Opinion by Judge Ruiz. Concurrences by Judge Washington and Judge Thompson. Dissent by Judge Glickman, joined by Judge Fisher. Dissent by Judge Fisher, joined by Judge Glickman. Alfred Carry and Moses Cook, D.C. Law Students, for Mr. Bado. PDS and Capital Area Immigrants‘ Rights (CAIR) Coalition, as amici curiae, in support of Mr. Bado. Motions judge: Honorable Jennifer M. Anderson. Trial judge: Honorable Stuart G. Nash.

Facts: Bado fled Burkina Faso and applied for asylum in the U.S. His asylum proceedings were halted when, in 2011, he was charged with three counts of misdemeanor sexual abuse of a minor. If convicted, he would be barred from receiving asylum and removed from the United States. Appellant then pleaded not guilty and demanded a jury trial. However, because a conviction for misdemeanor sexual abuse of a minor did not expose appellant to a sentence of more than 180 days in jail or a fine over $1000, the court denied his demand. At a bench trial, appellant testified in his own defense and questioned the credibility of the complainant. He was then acquitted of two of the three charges, but sentenced to 180 days in jail and ordered to pay $50 to the Crime Victims Compensation Fund. The U.S. then commenced deportation proceedings against him because of the conviction.

In 2015, a divided panel of the Court of Appeals reversed the conviction after concluding that appellant’s right to a jury trial had been violated. The government then sought rehearing en banc that was granted, which resulted in the panel’s opinion being vacated. You can read about the panel's decision here and the grant of rehearing en banc here.

Issue: Was Mr. Bado entitled to a jury trial for a charge carrying a maximum penalty of six months or less, when a conviction for that charge also carried the threat of deportation?

Holding: Yes. “The Sixth Amendment entitles a defendant to a jury trial if he is charged with a deportable offense, even if the maximum period of incarceration does not exceed six months.”

Writing for the en banc majority, Senior Judge Ruiz explained that, in the United States, an individual is only entitled to a jury trial under the Sixth Amendment when charged with a “serious” offense. Because exposure to incarceration usually is the clearest indicator of the seriousness of an offense, a crime with the possibility of punishment of more then six months incarceration automatically qualifies as a serious offense and requires a jury trial. However, the Court established that the presumption that an offense with a penalty of less than six months incarceration is a petty offense—not requiring a jury trial—can be overcome “if [the accused] can demonstrate that any additional statutory penalties, viewed in conjunction with the maximum authorized period of incarceration, are so severe that they clearly reflect a legislative determination that the offense in question is a ‘serious one.’” Blanton v. City of N. Las Vegas, 489 U.S. 538, 543 (1989). In Blanton, the Supreme Court concluded that the possibility of suspension of a license and mandatory alcohol abuse courses for a driving under the influence conviction were not “significant” enough to render the offense a serious one for jury trial purposes.

Applying a Blanton analysis, the DCCA began with the presumption that misdemeanor sexual abuse of a minor was a petty offense for Sixth Amendment purposes since it had a 180-day maximum exposure to incarceration. But by noting there “is no comparison between the penalty of deportation and the statutory penalties considered in Blanton,” the Court concluded that Mr. Bado overcame the pettiness presumption by demonstrating that a 180-day jail sentence that also resulted in his placement in deportation proceedings was a serious offense. The “forced physical separation” of deportation is “considered by many immigrants to be worse than incarceration,” as deportation would result in the accused being separated from his family, exposed to poverty and violence in his home country, and barred from reentry for at least ten years per the U.S. immigration code. As the Court explained, “when a person faces deportation, serving the sentence is only the first step following conviction; once the sentence is completed, the person faces the burdens and anxiety that attend detention pending removal proceedings.” “[W]ith all the grave consequences that [removal] entails,” the “loss is so great as to be unquantifiable.”

The majority disagreed with the government’s contentions that deportation is not a penalty for a criminal offense; that removal should not be considered because it is a penalty imposed by Congress, not the D.C. Council, which created the offense; that deportation is irrelevant because it is not punishment; and that D.C. courts are not competent to determine the deportation consequence of a criminal conviction. The DCCA believed that all of the government’s arguments diverged from a “straightforward application of a Blanton analysis that includes the penalty of deportation.” As the Court spelled out, a Blanton analysis focuses on the “possible” statutory penalties that attach to a conviction, and did not distinguish between penal and civil penalties, while also disagreeing with the government’s argument that deportation is not a penal penalty. The Court also stated that the Blanton analysis looks at the possible penalties to the accused, from the accused’s point of view—meaning it was irrelevant here that a noncitizen in appellant’s situation would have the right to a jury trial where a citizen would not.

The DCCA also disagreed with the government’s contention that, because deportation is a product of federal law and not local law enacted by the D.C. Council, it does not factor into the jury-trial analysis. The DCCA instead held that the key is penalties enacted by “state action,” and in these circumstances, Congress “is the only legislative body that can prescribe the penalty of removal for a criminal conviction.” Lastly, the majority found the government’s reliance on application of the impact of deportation in non-Sixth Amendment situations, such as when it had been considered for double jeopardy or ex post facto purposes, to be unpersuasive. The Court stated that in this situation, the focus is not on a threshold question whether the proceeding is criminal—which would not apply to deportation proceedings—but what penalties flow from a conviction in a criminal case, which includes "collateral" consequences such as deportations.

And, to the extent that future courts may have difficult applying the holding of this case, the majority explained, “the difficulties that the government fears may come to pass in some other case are too remote and of insufficient import to outweigh the loss of the constitutional right to a jury trial.”

Judge Washington’s concurrence: Judge Washington noted the disparity between jury-trial rights for citizens and noncitizens. But instead of finding that a reason to limit the right to a jury trial, Judge Washington implored the D.C. Council to expand the right. Noting that D.C. is in the minority of jurisdictions that do not afford jury trials whenever a penalty of incarceration is at stake, Judge Washington urged the Council to “reconsider its decision to value judicial economy above the right to a jury trial. Restoring the right to a jury trial in misdemeanor cases could have the salutary effect of elevating the public’s trust and confidence that the government is more concerned with courts protecting individual rights and freedoms than in ensuring that courts are as efficient as possible in bringing defendants to trial.”

Judge Thompson’s concurrence: Judge Thompson, concurring in the judgment, stated that there is “no basis” for the majority’s conclusion that the penalty of deportation necessarily reflects a legislative determination that those offenses are serious. This is especially true because Congress has authorized “cancellation of removal” for noncitizens convicted of certain deportable offenses, indicating that at least some deportable offenses may not be that serious. However, in this case, because Mr. Bado was convicted of an "aggravated felony" under immigration law (a conviction for which no relief is possible in the immigration courts), Judge Thompson believed that Mr. Bado was entitled to a jury trial.

Judge Fisher’s dissent, joined by Judge Glickman: Judge Fisher considered it a “startling result” that a citizen charged with misdemeanor sexual abuse of a child is not entitled to a jury trial, while a noncitizen charged with the same crime is. Judge Fisher suggested that the “seriousness” of the offense cannot depend on the identity and individual circumstances of the defendant. Judge Fisher also thought that “we must keep firmly in mind that we are dealing here with two different legislatures”:  criminal statutes enacted by the D.C. Council, and immigration laws enacted by the U.S. Congress.

Judge Glickman’s dissent, joined by Judge Fisher: Judge Glickman added an additional point: the pettiness presumption of Blanton can only be overcome if the defendant shows that the legislature that actually enacted the criminal offense determined that additional civil penalties should be attached to the offense. Here, the U.S. Congress’s determination that an offense is deportable has no bearing on the D.C. Council’s view about the seriousness of misdemeanor sexual abuse of a minor.

Of note:

• In any case against a noncitizen charged with a 180-day misdemeanor, be certain to check if it is a deportable offense, and if so, advise your client that she may demand a jury trial.

• Although Bado focuses on deportation, its rationale applies to all “severe” collateral consequences of conviction, which can include sex offender registration. The majority states that the consequence does not have to be “punitive” to count toward the jury trial right, and Senior Judge Washington’s concurrence states that many collateral consequences are severe enough to trigger the right to a jury trial. 

KC Bridges, guest blogging.

Read the full opinion here.

On remand, appellant gets jury trial on charges that typically aren't jury eligible

LeJune C. Smith v. United States (decided July 7, 2016)

Players: Associate Judges Beckwith and McLeese, Senior Judge Pryor.  Opinion by Judge Pryor.  Dissent by Judge McLeese.  Sean R. Day for Mr. Smith.  Trial judge: A. Franklin Burgess, Jr.

Facts: Mr. Smith requested a jury trial on six counts stemming from a hit-and-run incident after which Mr. Smith was found to be intoxicated.  The maximum sentence Mr. Smith faced for the six charges was 2 years and 9 months, and a fine of $5,500.  The trial court denied the request and proceeded with a bench trial, at which Mr. Smith was acquitted on three counts and convicted on three counts.  On appeal, Mr. Smith argued that his statutory right to a jury trial was violated because he faced a cumulative maximum sentence of more than two years or $4000.  See D.C. Code § 16-705(b).  The government conceded that Mr. Smith’s right to a jury trial was violated, but argued that the three convictions should nonetheless be affirmed because cumulatively, they represent a maximum potential sentence of 1 year and 90 days and a fine of $2,500, and therefore would not entitle Mr. Smith to a jury trial under D.C. Code § 16-705(b).

Issue: Is remand for a jury trial a viable remedy when a defendant has been erroneously denied a jury trial, but would not independently be entitled to a jury trial on the counts being remanded?

Holding:  Yes.  Under D.C. Code § 17-306, the DCCA may “affirm, modify, vacate, set aside or reverse any order or judgment . . . lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate order, judgment, or decision, or require such further proceedings to be had, as is just in the circumstances.”  Slip op. at 8-9 (citing D.C. Code § 17-306).  NG

Read full opinion here.

If you desire a jury trial, be sure the building itself is open to the public before trespassing.

Jacqueline Frey v. United States (decided May 5, 2016).

Players: Associate Judges Thompson and McLeese, and Senior Judge King. Opinion by McLeese. Trial Judge: Ann O’Regan Keary. Jeffrey Light for Ms. Frey. 

Facts: At about 6:30 a.m. on June 24, 2014, Ms. Frey was found asleep at an employee’s desk in a restricted area of the Library of Congress’s Adams Building, which though open to the public during the day was closed at that time. Also, in order to get to the desk where she was sleeping, Ms. Frey had to pass through areas that are not at any time open to the public. Ms. Frey testified she had entered the building at 3:30 p.m. the day before, when it was open, and fell asleep in the reading room. When she woke up, the building was closed and she began walking around until she made her way to the office where she was later arrested. After a bench trial, she was convicted of unlawful entry in violation of D.C. Code §22-3302. 

Issue:  Did the trial court err in deciding that Ms. Frey was not entitled to a jury trial? 

Holding: Yes. The unlawful entry statute is divided into two parts. Subsection (a) prohibits unlawful entry into “any private dwelling, building, or other property,” and violations of this subsection are punishable by a fine, imprisonment for not more than 180 days, or both. Subsection (b) prohibits unlawful entry into “any public building, or other property, or part of such building, or other property,” and violations of this subsection are punishable by a fine, imprisonment for not more than six months, or both. Thus, since someone charged with an offense punishable by more than 180 days’ imprisonment has a statutory right to a jury trial, anyone charged under subsection (b) has a right to a jury trial. 

In this case, the information filed did not specify which subsection Ms. Frey was accused of violating. The government conceded that the Adams Building of the Library of Congress is a public building, but argued Ms. Frey was subject to subsection (a) because she was found inside the building at a time when it was not open to the public and in a room that is never open to the public.

The Court disagreed with the government’s argument. The Court reasoned that “[i]n light of the United States’s acknowledgment that the Adams Building is a public building rather than a private building, it seems to follow that Ms. Frey entered a public building, as well as various parts of a public building, and did not enter a private building or any part of a private building. Ms. Frey’s conduct therefore appears to have violated subsection (b), rather than subsection (a).” The focus is on where the person entered, in this case a public building, and not specifically where inside that building or when the person was found. 

In 2009, the unlawful entry statute had been divided into two parts, as the D.C. Council wished to draw a distinction between private and public buildings, and buildings where someone would have First Amendment protections. The government claimed this meant the building must be considered “private” because the Council only wanted to give more protections to people who entered private buildings due to their First Amendment rights but that no one has a First Amendment right to be in a building when it is closed. The Court disagreed: “By preserving a jury-trial right in all prosecutions for unlawfully entering public buildings, the Council apparently chose instead to draw a more easily administrable line [than the one the government was asking the court to draw]. In such circumstances, we must adhere to the broader language the Council chose, and we may not artificially limit the statute to the particular circumstances that gave rise to the Council’s concern.” 

Also, the Court noted that legislative history indicated the Council understood the jury-trial right would be “tied to the public character of the building as a whole, not to specific areas within a building.” The Court concluded that a defendant charged with unlawful entry has a right to a jury trial if the building itself is a public building, even if the defendant is found at a time when the building is closed or in an area within the building not open to the public. BM

Read full opinion here.

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.

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.

Non-citizens Have a Right to a Jury Trial on Misdemeanor Charges if Deportation Will Be a “Virtually Inevitable” Consequence of Conviction

Jean-Baptiste Bado v. United States (decided July 16, 2015)

Players: Associate Judges Fisher and Thompson, Senior Judge Ruiz. Opinion by Judge Thompson. Concurring opinions by Judge Thompson and Judge Ruiz. Dissenting opinion by Judge Fisher. D.C. Law Students in Court for Mr. Bado. Trial judge: Stuart G. Nash. Motions judge: Jennifer M. Anderson.

Facts: Mr. Bado, a political asylum applicant from Burkina Faso, was charged with three counts of misdemeanor sexual abuse of a child based on allegations that he touched his teenage stepdaughter. He demanded a jury trial on these charges, arguing that trial by jury was required because the possible consequences of conviction—including deportation pursuant to federal immigration laws—were so severe. The motions judge denied that request. After a two-day bench trial, Mr. Bado was convicted of one count of misdemeanor sexual abuse of a child, sentenced to the statutory maximum of 180 days’ incarceration, and ordered to register as a sex offender.

Issue: Does a non-citizen defendant have a Sixth Amendment right to a jury trial on misdemeanor charges that are presumptively petty offenses for Sixth Amendment purposes where the misdemeanor qualifies as an “aggravated felony” under federal immigration law, meaning that conviction would “virtual[ly] inevitabl[y]” result in deportation?

Holding: Yes. When a non-citizen is charged with a misdemeanor that qualifies as an “aggravated felony” under federal immigration law, such that conviction would result in deportation, the offense “must be deemed a serious rather than petty crime for purposes of the Sixth Amendment,” and the defendant is entitled to a jury trial.

Of Note:

• The majority opinion does not reach the question whether any offenses that carry a potential consequence of deportation for non-citizens but do not constitute “aggravated felonies” “should be deemed serious for purposes of the Sixth Amendment jury trial right.”

• In a separate concurrence, Judge Thompson clarifies her position that the fact that a conviction will render a non-citizen deportable is not enough to trigger the Sixth Amendment jury trial right. In her view, it is the categorical unavailability of relief from deportation for those convicted of “aggravated felonies” that shows that Congress regards these offenses as “serious in the Sixth Amendment sense.”

• Senior Judge Ruiz’s concurrence takes the broader view that because the Sixth Amendment analysis “looks to the ‘severity of the maximum authorized penalty’ in assessing whether an offense is serious and warrants the right to a jury trial,” an offense is “serious” if the immigration statute authorizes deportation as a consequence of conviction, regardless of “whether implementing officials have discretion to grant relief to certain limited classes of individuals or are precluded from doing so.” 

• In dissent, Judge Fisher explains his belief that deportation is not “the type of penalty that counts for purposes of determining the right to a jury trial.” MW

Read full opinion here.