Tuesday, October 14, 2014

Tenth modifies the modified categorical approach

U.S. Trent, 2014 WL 4746294 (9/25/14) (Okl.) (Published) - An important decision about the modified categorical approach. The 10th makes it harder to avoid the modified categorical approach. First, the 10th holds that a statute is divisible and thus subject to the modified categorical approach where it refers to all state criminal offenses. For example, in this case Oklahoma prohibits two or more people from conspiring to commit "any crime." That conspiracy offense is divisible into a "finite list" of every crime in the Oklahoma statutes. It's not a hypothetical list, just a lengthy one. The court may look to the judicial documents to see which crime the defendant was convicted of conspiring to commit. In this case those documents indicate Mr. Trent was convicted of conspiracy to manufacture meth. This is a "serious drug offense" under the ACCA because it "involves manufacturing a controlled substance" under § 924(e)(2)(A)(ii), Second, the 10th holds the alternatives don't necessarily have to be "elements" in the strictest sense, despite Descamps' emphasis on that term. That is, it is okay if under state law the jury could convict someone of conspiracy without agreeing unanimously on which crime the defendant conspired to commit. The modified categorical approach may be used if the judicial documents show the prosecutor only charged a conspiracy to commit one crime, as in this case. In such a circumstance we know the jury unanimously found a conspiracy to commit one particular crime. This seems to say you use the modified categorical approach to decide whether to use the modified categorical approach. Third, the 10th says its second holding doesn't matter in this case because in Oklahoma the jury must agree unanimously on the particular crime defendants conspire to commit. So the kind of crime is always an element in the strictest sense. In short, the 10th didn't need to make the second holding, but chose to do so anyway. The second holding may prove problematic in circumstances such as convictions under California's controlled-substance statutes, which don't make the identity of the controlled substance an element and which prohibit some drugs that are not controlled substances under federal law. Judge Seymour refused to go along with the second holding, but didn't explain why. The resulting 196-month sentence was not substantively unreasonable despite the fact that Mr. Trent's ADHD lead him to his problems with the law, he was fundamentally a good person, he has not committed any violence and didn't use his gun offensively.

The 10th also summarily addresses other issues. Importantly, while not helping Mr. Trent, the 10th does say: "we caution that courts should be hesitant to admit such evidence [a prior felon-in-possession (fip) conviction to show the knowledge needed to prove a current fip charge] under [FRE Rule 404(b)] because of the great danger of unfair prejudice. Indeed, the district court would not have abused its discretion had it refused to admit the evidence." But, despite this great prejudice, the 10th, following U.S. v. Moran, 503 F.3d 1135 (10th Cir. 2007), finds no abuse of discretion in admitting the prior conviction to show Mr. Trent knew the gun was in a car he shared with others. Since the question of knowing possession was debatable in this case the prior conviction was even more probative than in Moran. Trent is of no use on appeal, but helpful for trials. Also an insufficiency-of-the-evidence argument challenging the credibility of government witnesses "is doomed to failure" in the 10th's words. And defense counsel gets a compliment: "This is one of the more imaginative arguments presented to this court," the 10th says. But the 10th nonetheless strikes a blow against imagination, holding that putting in the instructions the indictment's reference to § 924(a)(2) was okay, despite counsel's concern that a juror might look up the statute, see Mr Trent only faced a max of 10 years and be more likely to convict than if the juror knew he faced life under the ACCA. Finally, the instruction that the government was not required to use all investigative techniques available to it was okay,even though part of Mr. Trent's defense was that shoddy investigation prevented the government from finding who really possessed the gun. The instruction didn't prevent the jury from concluding the faulty investigation undermined the credibility of the government's evidence.