Tag Archives: 10th Circuit

Lying police undermine confession

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This week’s case comes out of the Tenth Circuit: United States v. Young, No. 18-6221, on appeal from the Western District of Oklahoma. It is marked for publication, but I don’t have the cite yet.

Shane Young was driving early one morning in Woodward County, Oklahoma. The police signaled him to pull over, but he delayed stopping for a while. When he finally stopped, he got out of the car and fled on foot. The police caught him and retraced his steps. They found a small headphones case containing 4 grams of meth. They arrested him, but he invoked his rights to counsel and to remain silent and was released before too long.

Later that day, police returned to Mr. Young’s flight path and found something they had missed before: a black bag containing 93 grams of meth. The black bag changes things. Possession of 4 grams has no mandatory minimum prison term, but possession of 97 grams (the headphones case plus the black bag) carries a mandatory minimum of 5 years in prison. 21 U.S.C. § 841(b)(1)(B), (C). They rearrest him. He admits to the 4 grams but not the 93 grams. He asks for a lawyer, so they stop questioning him (but they do not let him go).

Four days later, Mr. Young is still in custody when he meets FBI special agent Kent Brown. Mr. Young tells Agent Brown about how he’s worried about the effect this arrest will have on his life. He has a new baby, etc. Agent Brown says he wants to help and that he’s “on your side.” Agent Brown showed Mr. Young the federal arrest warrant, but told him that he had spoken to the federal judge on the case. According to Agent Brown, the judge was willing to charge Mr. Young “anywhere from five to ten years” for the 4 grams. But Mr. Young could “physically buy down the amount of time you see in federal prison” by “own[ing] to the information.” According to Agent Brown: “every time you answer a question truthfully, it ticks time off that record, it ticks time off how much you’re actually going to see.” In other words, the more meth Mr. Young admitted to possessing, the less prison time he would get. Agent Brown specifically said: “that’s the way it works.”

Mr. Young was a little suspicious, but he didn’t have any experience in federal court. He wondered if he should talk to a lawyer and said he felt “like I’m buying the farm.” But he bought the farm anyway. He agreed with Agent Brown’s suggestion about how the black bag with 93 grams got there and was charged with possession with intent to distribute 97 grams of meth. By owning to the information, Mr. Young increased the amount of time he was likely to see from 0-20 years to 5-40 years.

A lawyer was appointed for Mr. Young after he was charged. The lawyer moved to suppress the confession as involuntary. Involuntary confessions are not admissible. The Government bears the burden of proving that the confession was not involuntary, that it was “freely self-determined.” In considering the question, courts should consider the totality of the circumstances, including characteristics of the accused and the details of the interrogation and whether there was any “coercive police activity,” such as misrepresentations and promises of leniency.[1]

The district court found that Agent Brown lied to Mr. Young and made promises of leniency. Nevertheless, the district court determined that the confession was voluntary, based mostly on the relative friendliness of the interrogation, Mr. Young’s experience in state criminal court, and the fact that he had been advised of his constitutional rights. Unable to avoid the confession, Mr. Young pled guilty and was sentenced to 188 months’ imprisonment. That’s 15 years and 8 months. So by confessing to more meth, he “physically bought down his time” and increased it from the 5 to 10 years Agent Brown had promised to more than 15 years.

On appeal, the Tenth Circuit was most troubled by Agent Brown’s misrepresentations about how the federal system works. “Although we do not require a law enforcement officer to inform a suspect of the penalties for all the charges he may face, if he misrepresents these penalties, then that deception affects our evaluation of the voluntariness of any resulting statements.” This is a version of a general rule in American law: you don’t have to say anything, but if you do say something, you can’t lie. Here, Agent Brown lied to Mr. Young when he said that confessing to higher quantities would result in a lower sentence. Agent Brown also lied when he said that he would tell the judge about Mr. Young’s cooperation, that the cooperation would “physically buy down the amount of time you see in federal prison,” and that “that’s the way it works.”

Because “that is not the way the federal system works.” Slip Op. at 9. In the federal system, higher amounts of possession tend to result in longer sentences. Cooperation can reduce sentencing ranges, but not enough to overcome the difference between 4 grams and 97 grams. Agent Brown’s lies undermined the voluntariness, and therefore the admissibility, of the confession. The confession should have been suppressed. The conviction must be vacated and the case remanded for further proceedings.

This case gives me hope. Police authority should come from their moral authority, their impeccable integrity, not from their guns. I am glad to see courts holding police to that standard.

Footnotes:

  1. I have omitted the case citations. If you are interested in seeing the cases the court cited, check out the slip opinion at 6–8.

Stopping Time and the Meaning of “A”

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This week’s case comes out of the Tenth Circuit: Banuelos v. Barr, 953 F.3d 1176 (10th Cir. 2020). Judge Bacharach wrote for Judges Holmes and Matheson.

Jose Angel Banuelos Galviz entered the United States in 2006. Around 2009, he received a document from the immigration authorities labeled “notice to appear,” but it did not tell him a time or place to appear. Around 2016, he received a second document, telling him when and where to appear. He showed up. The IJ (or “immigration judge”) ordered Mr. Banuelos removed and denied his requests for asylum, withholding of removal, and protection under the Convention Against Torture. Mr. Banuelos appealed to the BIA (the Board of Immigration Appeals).

While his appeal was pending, the Supreme Court issued its decision in Pereira v. Sessions, 138 S.Ct. 2105 (2018). Pereira dealt with a form of relief called “cancellation of removal,” available under 8 U.S.C. § 1229b(1). That provision gives the attorney general, acting through the IJ, permission to let a removable person nevertheless remain in the United States, and potentially adjust to lawful permanent resident status, if he can satisfy four requirements:

  1. 10 years of continuous physical presence in the United States, and
  2. good moral character, and
  3. no convictions for certain specific criminal offenses, and
  4. that his removal “would result in exceptional and extremely unusual hardship to [his] spouse, parent, or child,” so long as the affected spouse, parent, or child is either a U.S. citizen or a lawful permanent resident.

8 U.S.C. § 1229b(b)(1).

The first requirement—ten years of continuous presence—is measured from the time the person enters the United States until the person is served with “a notice to appear under section 1229(a).”[n.1] 8 U.S.C. § 1229b(d)(1). This is referred to as the “stop time rule.” At the time of Mr. Banuelos’s removal hearing, the BIA had held that a so-called notice to appear could stop time even if it did not actually tell you when or where to appear. So even though he received notice of his removal hearing more than 10 years after he entered the United States, the BIA did not consider him eligible for cancellation of removal because he had received a so-called notice to appear just 3 years after entering.

The Supreme Court changed that rule in Pereira, holding that a so-called notice to appear without a time and place does not stop time. In other words, continuous physical presence must be measured from the time you enter the United States until the time you receive a notice to appear telling you when and where to actually appear. Applied to this case: Mr. Banuelos potentially qualifies for cancellation of removal because there were more than 10 years between when he entered and when he received notice of when to appear. Mr. Banuelos asked the BIA to remand back to the IJ to consider his application for cancellation of removal. The BIA denied that request, and he petitioned the Tenth Circuit for review.

The Tenth Circuit granted review and remanded to the IJ to consider Mr. Banuelos’s application for cancellation of removal. The court determined that, in order to stop time, the notice to appear must be a single document containing all the information required in § 1229(a). Both the plain language of the statute and its legislative history mandate this result.

The plain language of the statute reads: “For the purposes of this section, any period of . . . continuous physical presence in the United States shall be deemed to end . . . when the alien is served a notice to appear under section 1229(a).” 8 U.S.C. § 1229b(d)(1). Section 1229(a) defines a “notice to appear” as a written notice specifying certain things, including “The time and place at which the proceedings will be held.” 8 U.S.C. § 1229(a)(1)(G). Therefore, a written notice that does not include the time and place is not a “notice to appear under section 1229(a)” and does not stop time.

But what if you get two documents, one containing some of the information, and another one containing the rest? Some jurists think that the two documents can combine into “a notice to appear under section 1229(a)” and therefore stop time. The Tenth Circuit disagreed, based on the relevant legislative history.

Prior to the enactment of the current section 1229(a), removal proceedings were initiated with two documents: an order to show cause and a notice of hearing. Then, Congress changed the process in 1996:

To simplify removal proceedings, Congress adopted § 1229(a), replacing the two documents with a single notice to appear, which had to include all of the information previously sprinkled throughout the order to show cause and the notice of hearing. Given this congressional intent to replace two documents with one, we should be wary of reading the singular “a” in § 1229 to refer to multiple documents.

Banuelos v. Barr, 953 F.3d 1176, 1182 (10th Cir. 2020) (citing Report of the Committee on the Judiciary, House of Representatives, H.R. Rep. 104-469(I) (1996)).

If two documents were required before, then only a single document is required now. Only if that single document satisfies all the requirements of section 1229(a) (including the requirement of a specific time and place to appear) will it stop time for purposes of cancellation of removal. Because Mr. Banuelos did not receive that single document until more than 10 years after he had entered the United States, the Tenth Circuit remanded to the IJ to consider his application for cancellation of removal.

It should be noted that not everybody agrees with the Tenth Circuit. The court itself noted that, while the Third and Ninth Circuits agree with the Tenth, the Fifth and Sixth Circuits do not. See Guadalupe v. Attorney General, 951 F.3d 161 (3d Cir. 2020) (subsequent notice of hearing does not retroactively cure a defective notice to appear); Lopez v. Barr, 925 F.3d 396 (9th Cir. 2019) (same); but see Yanez-Pena v. Barr, 952 F.3d 239 (5th Cir. 2020) (time stops when the person “receives all required information, whether in one document or more”); Garcia-Romo v. Barr, 940 F.3d 192 (6th Cir. 2019) (same). Given the present administration’s aggressive stance on removal, there are a lot of cases percolating through the federal courts. The Supreme Court may have to resolve the split before too long. In the meantime, if you live in Texas, Louisiana, Mississippi, Tennessee, Kentucky, Ohio, or Michigan, this case may not be helpful to you

  1. Intrepid readers will note that section 1229b(b)(1)(A) does not say that time stops when you are served with a notice to appear. That section says that time stops on “the date of [the] application” for cancellation of removal. But you wouldn’t apply for cancellation of removal until after you had been ordered removed. And you cannot be ordered removed without being served with a notice to appear. 8 U.S.C. § 1229(a). But being served with a notice to appear stops time for continuous physical presence. 8 U.S.C. § 1229b(d)(1). So which one is it—does time stop when you’re served with a notice to appear or when you apply for cancellation? This kind of internal conflict plagues the immigration system. It makes lawyers scared to enter the field, and it virtually guarantees that people representing themselves will trip on something.