Federal First Offender Act by Darren Chaker

darren chaker appeal
darren chaker appeal
Federal appeal article, Darren Chaker

While reviewing recent law concerning deportation, Darren Chaker found the Ninth Circuit Court of Appeals has held that an alien whose offense would have qualified for treatment under the Federal First Offender Act (“FFOA”), but who was convicted and had his conviction expunged under state or foreign law, may not be removed on account of that offense. See Dillingham v. INS, 267 F.3d 996 (9th Cir. 2001); Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000). To qualify for treatment under the FFOA, the defendant must (1) have been found guilty of an offense described in section 404 of the Controlled Substances Act (“CSA”), 21 U.S.C. § 844; (2) have not, prior to the commission of such an offense, been convicted of violating a federal or state law relating to controlled substances; and (3) have not previously been accorded first offender treatment under any law. See 18 U.S.C. § 3607(a); Cardenas-Uriarte v. INS, 227 F.3d 1132, 1136 (9th Cir. 2000).

A. Expungement Under State or Foreign Law

The alien’s prior conviction must have already been expunged pursuant to the state or foreign expungement statute; the possibility that the alien may request and have his conviction expunged in the future is not sufficient to avoid the consequences of removal. See Chavez-Perez v. Ashcroft, 386 F.3d 1284, 1292-93 (9th Cir. 2004).

The state or foreign statute under which the conviction was expunged does not have to be an identical procedural counterpart to the FFOA. See Garberding v. INS, 30 F.3d 1187, 1190-1191 (9th Cir. 1994). See also Lujan-Armendariz, 222 F.3d at 738 n.18 (“[R]elief does not depend on whether or not the state rehabilitative statute is best understood as allowing for ‘vacaturs,’ ‘set-asides,’ ‘deferred adjudications,’ or some other procedure.”). The Ninth Circuit has recognized expungements for FFOA purposes where the state court “has entered an order pursuant to a state rehabilitative statute under which the criminal proceedings have been deferred pending successful completion of probation or the proceedings have been or will be dismissed after probation.” Lujan-Armendariz, 222 F.3d at 738 n. 18 (emphasis in original) (quoting Matter of Manrique, 21 I&N Dec. 58, 64 (BIA 1995)). The Ninth Circuit has not yet decided whether an alien who has received a court order deferring adjudication, but has not yet had his proceedings expunged because he has not completed his term of probation, is eligible for FFOA treatment. See id. at 746 n.28; Chavez-Perez, 386 F.3d at 1293.

B. Offenses Described in Section 404 of the Controlled Substances Act

Section 404 of the CSA provides that it is “unlawful for any person knowingly or intentionally to possess a controlled substance . . . .” 21 U.S.C. § 844(a). Any state or foreign possession of a controlled substances offenses, such as those set forth in sections 11350(a) and 1137 of the California Health and Safety Code (“CHSC”), are described in section 404 of the CSA and are therefore potentially eligible for FFOA treatment.

1. Possession of Drug Paraphernalia

Darren Chaker found the Ninth Circuit has recognized that “the plain language of the statute suggests that possession of drug paraphernalia should not be included as an offense described in section 844,” since paraphernalia is not a controlled substance. Cardenas-Uriarte, 227F.3d at 1137. Nonetheless, in Cardenas-Uriarte, the Ninth Circuit determined that theapplication of the plain meaning of the statute in that instance would lead to both an absurd result and frustrate congressional intent. See id. The petitioner had initially been charged with two counts of possession, but had pleaded guilty to the lesser offense of possession of drug paraphernalia. Id. The Ninth Circuit reasoned that refusing to allow the petitioner’s offense to receive treatment under the FFOA would lead to an absurd result since the petitioner would have been eligible had he refused to plea guilty and been convicted, as initially charged, of the graver offense of possession. See id. The Ninth Circuit further determined that applying the plain meaning of the FFOA would frustrate congressional intent:

Congress intended to allow those convicted of the least serious type of drug offenses to qualify under the Act. Congress would never have considered including possession of drug paraphernalia under this statute because no federal statute covers the crime of possession of drug paraphernalia. Where possession of drug paraphernalia is a less serious offense than simple possession of a controlled substance, therefore, congressional intent indicates that it should be included under the Act. See id. The Ninth Circuit therefore held that the petitioner’s conviction for possession of drug paraphernalia qualified for treatment under the FFOA.

2. Use or Being Under the Influence

Nor is use or being under the influence an offense described in the plain language of section 404 of the CSA. See 21 U.S.C. 844. The Ninth Circuit has not yet determined whether use or  FFOA. See Aguiluz-Arellano v. Gonzales, 446 F.3d 980, 984 (9th Cir. 2006) (distinguishing its holding that the petitioner’s use or being under the influence was not eligible for FFOA treatment as a result of his prior controlled substance conviction from the Board’s determination that the FFOA only applies to possession of a controlled substance, not to use or being under the influence offenses).

Extending the Ninth Circuit’s reasoning in Cardenas-Uriarte, however, may be warranted if the application of the plain meaning of the statute frustrates congressional intent. In Lujan-Armendariz, 222 F.3d at 734-35, the Ninth Circuit described the FFOA as “a limited federal rehabilitative statute that permits first-time drug offenders who commit the least serious type of drug offense to avoid the drastic consequences which typically follow a finding of guilt in drug cases.” Congressional intent may therefore be frustrated if the respondent is a first-time offender since “[d]rug use has generally been considered a less serious crime than possession.” Flores-Arellano v. INS, 5 F.3d 360, 363 n.5 (9th Cir. 1993). See also Medina v. Ashcroft, 393 F.3d 1063, 1066 (9th Cir. 2005). Further, as in Cardenas-Uriarte, federal law does not penalize use or being under the influence of a controlled substance. See 21 U.S.C. § 801 et seq.

Nevada Impeachment Using Prior Conviction by Darren Chaker

Darren Chaker, Ninth Circuit
Darren Chaker, Ninth Circuit
Darren Chaker at the Ninth Circuit, Pasadena

Darren Chaker blog about Nevada law and impeachment of witnesses. In the great State of Nevada allows for impeachment in NRS 50.095, entitled, “Impeachment by evidence of conviction of crime,” states, in pertinent part, “(1) For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime is admissible but only if the crime was punishable by death or imprisonment for more than 1 year under the law under which the witness was convicted.” Taking it a step further, the Nevada Supreme Court has held that NRS 50.095 imposes no requirement that such impeachment should be limited to only those felonies directly relevant to truthfulness or veracity. Pineda v. State, 120 Nev. at 210, 88 P.3d at 832 (citing Yates v. State, 95 Nev. 446, 449-50, 596 P.2d 239, 241-42 (1979)). In other words, NRS 50.095 does not limit impeachment to only evidence of felonies relevant to truthfulness or veracity. Warren v. State, 124 P.3d 522, 529 (NV 2005) (citing Pineda v. State, 120 Nev. at 210, 88 P.3d at 832 (citing Yates v. State, 95 Nev. 446,449-50, 596 P.2d 239, 241-42 (1979))).

The Court has the discretion to simplify the issues and to exclude evidence, even if it is relevant, if its probative value is substantially outweighed by the danger that it will confuse the issues or mislead the jury. See NRS 48.035(1); Jeep Corporation v. Murray, 101 Nev. 640, 646, 708 P.2d 297, 301 (1985), says Darren Chaker.

In Plunkett v. State, the Nevada Supreme Court reiterated, “In line with California, we hold that our statutes do not preclude inquiry into the number and names of the prior felony convictions.” 84 Nev. 145, 437 P.2d 92, 93 (1968)(citing People v. Smith, 63 Cal.2d 779, 409 P.2d 222, 230, 48 Cal.Rptr. 382 (1966)). In Houston v. Schomig, the Ninth Circuit Federal Judge held, “the details and circumstances of the prior crimes are … not appropriate subjects of inquiry.” 533 F.3d 1076 (9th Circ., 2008)(citing Plunkett v. State, 84 Nev. 145, 437 P.2d 92, 93 (1968)(citing People v. Smith, 63 Cal.2d 779, 409 P.2d 222, 230, 48 Cal.Rptr. 382 (1966))).

Of course, Darren Chaker also notes, as with most states, Nevada agrees that arrests and convictions for misdemeanors may not ordinarily be admitted even for limited purpose of attacking witnesses’ credibility. Sheriff, Washoe County v. Hawkins, 104 Nev. 70, 752 P.2d 769 (1988). The exception is typically a crime of moral turpitude such as filing a false report, insurance claim, etc. Likewise, a witness’ credibility may be attacked by showing his conviction of felony but not by showing mere arrest. Johnson v. State, 82 Nev. 338, 418 P.2d 495 (1966).

Last, making False Statements to a Federal Agency does is not necessarily a CIMT (Crime Involving Moral Turpitude), (construing 18 U.S.C. Section 1001, see Neely v. U.S., 300 F.2d 67 (9th Cir.), cert. denied, 369 U.S. 864 (1962)); Hirsch v. INS, 308 F.2d 562 (9th Cir. 1962).

Darren Chaker First Amendment Appeal

Darren Chaker, Ninth Circuit

 

Darren Chaker, Ninth Circuit
Darren Chaker at the Ninth Circuit, Pasadena

In a classic example of viewpoint discrimination, California Blogger Darren Chaker was put in jail. But his conviction was reversed federal court on First Amendment grounds. “Ms. Leesa Fazal, an investigator with the Nevada Attorney General’s Office, was “forced out” of her previous post with the Las Vegas Police Department.”  See Cato Institute article. Supporters included The Cato InstituteACLU of San DiegoElectronic Frontier FoundationFirst Amendment Coalition, and Brechner First Amendment Project at University of Florida.

Darren Chaker was on probation for a white collar crime. The record shows his bankruptcy attorney fraudulently filed a bankruptcy petition without Darren Chaker’s knowledge. The report states in part, “In my opinion Chaker’s attorney did not exercise a reasonable standard of care in filing a Second Bankruptcy Case without Chaker’s consent and signature. Indeed, in my opinion such conduct is fraudulent.”  See expert report, page 7.  Despite the conduct of his bankruptcy attorney, Darren Chaker was found guilty of only a single charge at trial. That conviction is being challenged. After serving a few months in minimum security, Darren Chaker started probation.

The Ninth Circuit, Case. No. 15-50138/ No. 15-50193, found, see opinion “Chaker’s blog post, which claimed that former police investigator Leesa Fazal “was forced out of the Las Vegas Metro Police Department,” does not qualify as harassment.” The court continued to state in relevant part, “The government also failed to prove that Chaker’s blog post satisfied the elements of defamation, including falsity and actual malice. See N.Y. Times Co. v. Sullivan, 376 U.S. 254 279–80 (1964).”

The blog about Leesa Fazal was protected speech also in the sense it publicized on a matter of public importance. Specifically, Leesa Fazal had appeared to have been detained by police after being found having brought her gun into a San Diego court room. This videotaped by Darren Chaker, where Leesa Fazal was taken to a back room after being told not to leave. See video.  The issue was that Leesa Fazal was not a peace officer in the State of California and appeared to may have broken the law.  Thus, under Obsidian Fin. Grp. v. Cox, — F.3d –, 2014 WL 185376 (9th Cir. Jan. 17, 2014) where Darren Chaker was entitled to journalistic protection due to publishing material about a matter of public concern.

First Amendment law professor Eugene Volkah provided assistance to the attorneys for Darren Chaker. Such speech cannot be restricted simply because it is upsetting or arouses contempt”). Even though the Internet is the newest medium for anonymous, uncomfortable expression touching on political or religious matters, online speech is equally protected under the First Amendment as there is “no basis for qualifying the level of First Amendment scrutiny that should be applied” to online speech. Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870 (1997).

The Supreme Court has directly considered factual circumstances where a petitioner was arrested for disorderly conduct after “verbally and negatively” protesting a police officer’s treatment of him, and concluded that “[s]urely, one is not to be punished for nonprovocatively voicing his objection to what he obviously felt was a highly questionable detention by a police officer.” Norwell v. City of Cincinnati, 414 U.S. 14, 16 (1973); Colten v. Kentucky, 407 U.S. 104, 111 (1972) (“Individuals may not be convicted under the [disorderly conduct] statute merely for expressing unpopular or annoying ideas.”)

The First Amendment gives protection to those who want to speak on unpopular ideas. This protection also precludes the government from silencing the expression of unpopular ideas. See Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 95 (1972) (“[T]he First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”). See also R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992) (“Content-based regulations are presumptively invalid.”).