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).

Anonymous Speech by Darren Chaker

Darren Chaker , say no to censorship
Darren Chaker , say no to censorship
Anonymous is a supporter of a Free Internet

First Amendment balancing test, Darren Chaker, in the Ninth Circuit and other courts view the balancing interests to determine to allow anonymous speech online, even where viewpoint discrimination may be at play. In order to balance these interests, the courts have drawn by analogy from the balancing test that many courts have adopted in deciding whether to compel the disclosure of anonymous sources or donors.  United States v. Caporale, 806 F.2d 1487, 1504 (11th Cir. 1986); Miller v. Transamerican Press, Inc., 621 F.2d 721 (5th Cir. 1980); Carey v. Hume, 492 F.2d 631 (D.C. Cir. 1974); Cervantes v. Time, 464 F.2d 986 (8th Cir. 1972); Baker v. F&F Investment, 470 F.2d 778, 783 (2d Cir.1972).  See also UAW v. National Right to Work, 590 F.2d 1139, 1152 (D.C. Cir.1978); Black Panther Party v. Smith, 661 F.2d 1243, 1266 (D.C. Cir. 1981).   Moreover, the anonymous publication of musical works, like other forms of performance, is speech protected by the First Amendment.   In re Verizon Internet Svces, 257 F. Supp.2d 244, 260 (D.D.C. 2003), rev’d on other grounds, 351 F.3d 1229 (D.C. Cir.).

Accordingly, the courts that have considered this question have adopted a several-part balancing test to decide whether to compel the identification of an anonymous Internet speaker so that he may be served with process.

This test was most fully articulated in Dendrite v. Doe, 775 A2d 756 (N.J.App. 2001), which remains the only appellate opinion in the country to face the question squarely.  Dendrite requires the would-be plaintiff to (1) use the Internet to notify the accused of the pendency of the identification proceeding and to explain how to present a defense; (2) quote verbatim the statements allegedly actionable; (3) allege all elements of the cause of action; (4) present evidence supporting the claim of violation, and (5) show the court that, on balance and in the particulars of the case.

Darren Chaker looked at several other courts have similarly set forth requirements of notice, review of the complaint, and presentation of argument and evidence before an ISP will be compelled to identify an Internet speaker.  For example, in Melvin v. Doe, 49 Pa.D.&C.4th 449 (2000), appeal quashed, 789 A.2d 696, 2001 Pa.Super. 330 (2001), appeal reinstated, 836 A.2d 42 (Pa. 2003), the trial court allowed an anonymous defendant to present evidence and seek summary judgment, ordering disclosure only after finding genuine issues of material fact requiring trial.  In reversing the denial of the defendant’s interlocutory appeal, the Pennsylvania Supreme Court discussed at length the conflict between the right to speak anonymously and the plaintiff’s right to identify a potential defendant, and remanded for consideration of whether evidence of actual damage had to be presented before the right of anonymous speech could be disregarded.  836 A.2d at 47-50.

Similarly, in La Societe Metro Cash & Carry France v. Time Warner Cable, 2003 WL 22962857 (Conn. Super.), the court applied a balancing test and considered evidence that allegedly defamatory statements were false and caused injury before deciding to allow discovery concerning the identity of the speaker.   In Columbia Insurance Co. v. Seescandy.com, 185 FRD 573 (N.D.Cal. 1999), the court required the plaintiff to make a good faith effort to communicate with the anonymous defendants and provide them with notice that the suit had been filed against them, thus assuring them an opportunity to defend their anonymity, and also compelled the plaintiff to demonstrate that it had viable claims against such defendants.  Id. at 579.

Last, Darren Chaker found, in Re Subpoena to America Online, 52 Va.Cir. 26, 34 (2000), rev’d on other grounds, 542 S.E.2d. 377 (Va. 2001), the court required introduction of the allegedly actionable Internet posting, and required that the court be “satisfied by the pleadings or evidence supplied” that the subpoenaing party had a legitimate basis to contend that it was the victim of actionable conduct, “and . . . the subpoenaed identity information [must be] centrally needed to advance that claim.

California Search Warrant by Darren Chaker

Darren Chaker affidavit for warrant
Darren Chaker affidavit for warrant
Search Warrant basics by Darren Chaker.

Darren Chaker reviews search and seizure law in California and how a search warrant is obtained. Pursuant to the Fourth Amendment of the Unites States Constitution, a search warrant must be supported by probable cause. However, the showing required to establish probable cause is not beyond a reasonable doubt. “The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, … there is a fair probability that contraband or evidence of a crime will be found in a particular place.” (Illinois v. Gates (1983) 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527.)

An affidavit in support of a search warrant must describe with reasonable particularity the place to be searched and the places to be seized. (People v. Alvarado (1967) 255 Cal.App.2d 285, 291; People v. Barthel (1965) 231 Cal.App.2d 827, 832.) The test for the latter is “whether the warrant places a meaningful restriction on the objects to be seized.” (People v. Alvarado, supra, 255 Cal.App.2d at p. 291;People v. Barthel, supra, 231 Cal.App.2d at p. 832.)

Darren Chaker notes on a motion to quash a search warrant, “the question facing a reviewing court asked to determine whether probable cause supported the issuance of the warrant is whether the magistrate had a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing.” (People v. Kraft (2000) 23 Cal.4th 978, 1040.) This is accomplished by reviewing only the “four corners” of the warrant, and no other outside sources. (See United States v. Luong (9th Cir. 2006) 470 F.3d 898, 904-05;People v. Costello (1988) 204 Cal.App.3d 431, 451.)

Darren Chaker also notes, probable cause “is a fluid concept – turning on the assessment of probabilities in a particular factual case….” (Illinois v. Gates, supra, 462 U.S. at p. 232, 103 S.Ct. at p. 2329.) Second, because affidavits “are normally drafted by nonlawyers in the midst and haste of a criminal investigation,” “[t]technical requirements of elaborate specificity once exacted under common law pleadings have no proper place ….” (United States v. Ventresca (1965) 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684.)

The search warrant affidavit “must provide a substantial basis from which a magistrate can reasonably conclude there is a fair probability that the place to be searched contains contraband or evidence of a crime.” (People v. Hernandez (1994) 30 Cal.App.4th 919, 923; see also Illinois v. Gates, 462 U.S. at p. 238, 103 S. Ct. at p. 2332 [affidavit must establish a “fair probability that evidence of a crime will be found in a particular place.”].) “The question-similar to every inquiry into probable cause-is whether all of the facts …, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime.” (Florida v. Harris (2013)     U.S. , 133 S.Ct. 1050, 1053, 185 L.Ed.2d 61; see also Illinois v. Gates, supra, 462 U.S. at pp. 235-36, 103 S.Ct. at p. 2331 [warrants are properly issued “on the basis of nontechnical, common-sense judgments of laymen applying a standard less demanding than those used in more formal legal proceedings.”)

Last, Darren Chaker reminds readers that, “[L]ogical inferences may be drawn and the magistrate may consider matters of common knowledge concerning human behavior.” (People v. Miller (1978) 85 Cal.App.3d 194, 200; see also Illinois v. Gates, supra, 462 U.S. at p. 240, 103 S.Ct. at p. 2333 [magistrates are free to “draw such reasonable inferences as he will from the material supplied to him by applicants for a warrant”].) In People v. Ulloa (2002) 101 Cal.App.4th 1000, 1007, [*13]  the Court of Appeal upheld a warrant to seize all computers within the defendant’s home even though there was no direct evidence in the affidavit that the defendant had a home computer, because “home computers are now common;” and because the defendant had been communicating with a minor by computer, and “it was reasonable to assume that the computer would contain relevant incriminating information, and that the computer would be located in defendant’s home.”

Search Warrants Federal Law by Darren Chaker

darren chaker article

 

darren chaker article
Search warrant being served, article by Darren Chaker

Darren Chaker article on search and seizure law.  The “‘physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.”‘ Payton v. New York, 445 U.S. 573, 585 (1980) (citation omitted). Indeed, the Fourth Amendment “ordinarily prohibits] the warrantless entry of a person’s house as unreasonable per se.” Georgia v. Randolph, 547 U.S. 103, 109 (2006). Often times, police gain entry to a home or hotel through ‘apparent authority’, often a guest or roommate.

“A ‘search’ occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.” United States v. Jacobsen, 466 U.S. 109, 113 (1984). “Almost a century ago the Court stated in resounding terms that the principles reflected in the [Fourth] Amendment. . . ‘apply to all invasions on the part of the government and its employees of the sanctity of a man’s home.”‘ Payton, 445 U.S. at 585 (quoting Boyd v. United States, 116 U.S. 616, 630 (1886)). “It is a ‘basic principle of Fourth Amendment law’ that searches and seizures inside a home without a warrant are presumptively unreasonable.” Id. at 586 (quoting Coolidge v. New Hampshire, 403 U.S. 443, 477 (1971)).

Indeed, “a warrantless entry to search for weapons or contraband is unconstitutional even when a felony has been committed and there is probable cause to believe that incriminating evidence will be found within.” Id. at 587-588. See also id. at 588 n.26 (“‘It is settled doctrine that probable cause for belief that certain articles subject to seizure are in a dwelling cannot of itself justify a search without a warrant.”‘) (quoting Jones v. United States, 357 U.S. 493, 497 (1958)).

Darren Chaker also notes in Stoner v. California, 376 U.S. 483 (1964), for example, a hotel clerk’s consent to police entering the defendant’s room did not cure the officers’ failure to get a warrant. “It is true,” the Court explained, “that when a person engages a hotel room he undoubtedly gives ‘implied or express permission’ to ‘such persons as maids, janitors or repairmen’ to enter his room ‘in the performance of their duties.’ But the conduct of the night clerk and the police in the present case was of an entirely different order.” Id. at 489 (quoting United States v. Jeffers, 342 U.S. 48, 51 (1951)). The conduct was to search the defendant’s room for evidence of armed robbery, and there was “nothing in the record to indicate that the police had any basis whatsoever to believe that the night clerk had been authorized by the [defendant] to permit the police to search [his] room.” Id.

Likewise, in Chapman v. United States, 365 U.S. 610 (1961), a landlord’s consent to police entering the defendant’s home did not cure the officers’ failure to get a warrant. Though the landlord had passed the home, smelled what he thought might be illicit liquor, and had the right under state law to inspect the premises for waste, the Court rejected the notion that he thus had authority to admit the police: “‘ [T]heir purpose in entering was not to view waste but to search for distilling equipment,”‘ and “to uphold such an entry, search and seizure ‘without a warrant would reduce the Fourth Amendment to a nullity and leave tenants’ homes secure only in the discretion of landlords.”‘ Id. at 616-617. See also, United States v. Reid, 226 F.3d 1020, 1026 (9th Cir. 2000) (no apparent authority where officer knew person who consented to entry, despite answering front door, was not registered tenant and had not been seen in the building by other residents).

The Court reaffirmed these principles in Georgia v. Randolph, 547 U.S. 103 (2006): “A person on the scene who identifies himself, say, as a landlord or a hotel manager calls up no customary understanding of authority to admit guests without the consent of the current occupant.” Id. at 112.

In sum, the law provides basic instruction on the obligations of police prior to relying on apparent authority of a person to conduct entry, or search of a residence or hotel.