BLOG BULLETS:

• Effective August 1, the career offender “crime of violence” definition has been amended to eliminate the residual clause, though some specific residual clause offenses are being specifically included in the guideline.
• The amendment also eliminates burglary of a dwelling from the guideline.
• California robbery, which is overbroad because it includes takings by threats against property and which was previously preserved only by reliance on the generic definition of extortion, is now probably excluded because the amendment narrows the definition of extortion to exclude takings by threats against property.

NOW THE BLOG:

We just got a great change to the career offender guideline – though it doesn’t take effect until August 1 – which will help a lot of our clients.  The Sentencing Commission adopted an amendment of the career offender “crime of violence” definition, effective August 1, which narrows the scope of the career offender guideline in several important and helpful ways.  The amendment is downloaded and attached in full here – and also available on the Sentencing Commission’s website at www.ussc.gov – but I thought I’d summarize the significant changes.

First, we won’t have to worry (at least after August) about making arguments that the invalidation of the Armed Career Criminal Act “residual clause” in Johnson v. United States, 135 S. Ct. 2551 (2015) (see the “More than a Residual Victory” post on Johnson in the June 2015 link at the right), applies to the identically worded career offender “residual clause.”  The amendment eliminates this issue by completely deleting the residual clause from the guideline.  The amendment does move at least two “residual clause” offenses – unlawful possession of an unregistered firearm and unlawful possession of explosives – from the commentary to the actual text of the guideline, so those remain “crimes of violence.”  It also moves several other specifically identified crimes from the commentary to the text of the guideline – murder, voluntary manslaughter, kidnapping, aggravated assault, forcible sex offense (which is then specifically defined in the commentary), robbery, arson, and extortion – but two of those – arson and extortion – were already expressly listed and at least some of the others would be included by the “has as an element the use, attempted use, or threatened use of physical force” clause, depending on what generic definition the courts adopt, see, e.g., United States v. Garcia-Jimenez, 807 F.3d 1079, 1085-86 (9th Cir. 2015) (suggesting generic definition of “aggravated assault” requires willful use of force).  Some of the offenses moved into the text probably wouldn’t be included by this clause, however, so the amendment does save a few residual clause offenses.

The Commission did far more than simply recognize what Johnson did to the residual clause, however.  Though we’ve already had a lot of success in establishing the overbreadth of many, if not most, of the state burglary statutes in our circuit (see “More More on What’s a Divisible Statute Under Descamps: An Application of Last Week’s Post to the Offense of Burglary” in the April 2014 link at the right), this amendment expressly removes one of the most common career offender predicates – burglary of a dwelling.  So we’ll no longer need to fight about what statutes fall outside the generic definition of burglary.  Burglary isn’t included as a “crime of violence” in any form.  Though the amendment does add an application note stating that an upward departure “may be appropriate” in “cases in which a burglary involves violence.”

In addition to this, there’s another part of the amendment that gives us a good argument for excluding California robbery from the priors that qualify as “crimes of violence.”  (Credit on this point to Brianna Mircheff of the Central District of California FPD.)  The Ninth Circuit recognized that California robbery is broader than generic robbery in United States v. Becerril-Lopez, 541 F.3d 881 (9th Cir. 2008) because California robbery includes takings accomplished by mere threats against property.  See id. at 891.  The court “saved” California robbery as a career offender predicate only because the “crime of violence” definition also includes extortion and “[t]akings through threats to property and other threats of unlawful injury fall within generic extortion.”  Id.

The amendment undercuts this reasoning.  The amendment adds a specific definition of “extortion” which is narrower than the generic definition recognized in Becerril-Lopez.  It defines extortion as “obtaining something of value from another by the wrongful use of (A) force, (B) fear of physical injury, or (C) threat of physical injury.”  It does not include takings by threats to property.  So we have a good argument California robbery can no longer be saved by the Becerril-Lopez reasoning and will no longer qualify as a career offender crime of violence.  (Note that whether Becerril-Lopez stands as a good law for the particular guideline it addressed – the illegal reentry guideline – is a different question and will depend on how, if at all, the Commission modifies the illegal reentry guideline.)

The amendment also adds an application note that suggests a downward departure “[i]n a case in which one or both of the defendant’s ‘two prior felony convictions’ is based on an offense that is classified as a misdemeanor at the time of sentencing for the instant federal offense.”  I originally thought this meant offenses like California “wobblers” (for those of you outside California, that’s a term used for certain California offenses that can be treated as either misdemeanors or felonies), and for those we’re already protected by United States v. Bridgeforth, 441 F.3d 864 (9th Cir. 2006).  But then I focused on the “classified as a misdemeanor at the time of sentencing” language and thought of its application to offenses that had been reclassified statutorily – such as drug possession offenses and/or California Prop 47 offenses.  Though I’m not sure how many of those would satisfy the other requirements of the “crime of violence” or “controlled substance” definitions.  How much this application note helps and how often it applies may depend on what state’s prior convictions you’re working with.  Still, it’s worth keeping in mind.

Finally, why do I say “breaking news bulletin” in the title of this post when the amendment doesn’t become effective until August 1?  Because you can start using it in your cases now – in several ways.  The wisest and safest course will be to try to stretch things out so your client gets sentenced after the favorable guideline takes effect.  (Remember that the guidelines in effect at the time of sentencing are the ones that apply, unless they’re harsher, in which case the Ex Post Facto Clause makes them inapplicable, see Peugh v. United States, 133 S. Ct. 2072 (2013).)  And if you can’t stretch things out that far, or there’s reasons you don’t want to, you can use the upcoming guideline to argue for a variance.  See United States v. Ruiz-Apolonio, 657 F.3d 907, 917 (9th Cir. 2011) (recognizing that sentencing court “has the discretion to grant a variance from the Guidelines after promulgation but before adoption of a proposed amendment,” though “not required to consider that amendment” (emphasis in original)).

BLOG BULLETS:

• Prior inconsistent statements are always admissible to impeach a witness, so long as they’re in fact inconsistent.
• Prior inconsistent statements are admissible for their truth only if given under oath at a trial, hearing, or other proceeding.
• A prior statement may be “inconsistent” without being directly contradictory; the somewhat ambiguous test is whether a reasonable person could infer the two statements were produced by inconsistent beliefs.

NOW THE BLOG:

The post last month on prior consistent statements (see “The New (Well, Sorta New) Rule on Prior Consistent Statements” in the December 2015 link at the right) brought to mind their opposite – prior inconsistent statements – and the different rules that govern them.  Prior inconsistent statements are treated differently in two respects – one that makes them more useable and one that makes them less useable.

The way in which prior inconsistent statements are more useable than prior consistent statements is that they are always admissible, so long as they’re inconsistent.  The Ninth Circuit has described it as a “basic rule of evidence” that “prior inconsistent statements may be used to impeach a witness.”  United States v. Monroe, 943 F.2d 1007, 1012 (9th Cir. 1991) (quoting United States v. McLaughlin, 663 F.2d 949, 952 (9th Cir. 1981) and United States v. Hale, 422 U.S. 171, 176 (1975)).  See also United States v. Bao, 189 F.3d 860, 865-66 (9th Cir. 1999) (same quote).  Further, “[a] prior inconsistent statement is admissible to raise the suggestion that if a witness makes inconsistent statements, then his entire testimony may not be credible; such an inference does not depend on whether either the prior statement or the subsequent in-court statement is true.”  Bao, 189 F.3d at 866 (emphasis added).  This contrasts with the rule governing prior consistent statements, which are admissible only when made prior to the motive to fabricate if offered to rebut a charge of fabrication or when they logically rehabilitate the witness in some other way.  (See last month’s post for more detail on this.)

A prior statement may be “inconsistent” without being directly contradictory, moreover.  A statement is “inconsistent” “if under any rational theory it might lead to any relevant conclusion different from any other relevant conclusion resulting from anything the witness said.”  Weinstein’s Federal Evidence § 613.04[1].  See also United States v. Morgan, 555 F.2d 238, 242 (9th Cir. 1977) (defining statement as “inconsistent” “whenever a reasonable man could infer on comparing the whole effect of the statements that they had been produced by inconsistent beliefs” (quoting earlier edition of Weinstein’s Federal Evidence)).  “Even the inability to answer a question may be inconsistent with a previous affirmative response to the same question.”  Weinstein’s Federal Evidence § 613.04[1].  Given the fuzziness of this test, trial judges “retain a high degree of flexibility in deciding the exact point at which a prior statement is sufficiently inconsistent with a witness’s trial testimony to permit its use in evidence.”  See, e.g., United States v. Tran, 568 F.3d 1156, 1162-63 (9th Cir. 2009) (not abuse of discretion to find “vague,” “reluctant,” and “evasive” in-court testimony inconsistent with prior statement); United States v. Adamson, 291 F.3d 606, 612 (9th Cir. 2002) (noting that “witnesses may be impeached ‘by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted” (quoting Jenkins v. Anderson, 447 U.S. 231, 239 (1980))).

Prior inconsistent statements are less useable than prior consistent statements in another respect, however, and I think it’s one we often forget in the heat of battle (or trial).  While prior inconsistent statements are always admissible to impeach a witness’s credibility, they are admissible for the truth of the matter asserted only when “given under oath subject to penalty of perjury at a trial, hearing, or other proceeding.”  Fed. R. Evid. 801(d)(1)(A).  See, e.g., Morgan, 555 F.3d at 242 (grand jury testimony).  Exactly what constitutes a “proceeding” under this rule is subject to debate, compare United States v. Castro-Ayon, 537 F.2d 1055, 1058 (9th Cir. 1976) (applying rule to statement taken under oath by immigration agent) with United States v. Day, 789 F.2d 1217, 1222-23 (6th Cir. 1986) (questioning Castro-Ayon) and United States v. Livingston, 661 F.2d 239, 242-43 (D.C. Cir. 1981) (holding statement given to postal inspector under oath not admissible under Rule 801(d)(1)(A) and noting that “the Rule seems to contemplate situations in which an official verbatim record is routinely kept, whether stenographically or by electronic means, under legal authority” (quoting 4 D. Louisell and C. Mueller, Federal Evidence § 419, at 171 (1980))), but the requirement that the statement be given under oath subject to the penalty of perjury is a requirement which the type of prior statements most often used in criminal cases will usually fail to satisfy, see, e.g., United States v. Ragghianti, 560 F.2d 1376, 1380 (9th Cir. 1977) (statement to FBI agent not admissible as substantive evidence under Rule 801(d)(1)(A) because not given under oath subject to penalty of perjury).

In our role as practical trial lawyers, we may scoff at this distinction, on the theory that a lay jury is unlikely to appreciate the distinction.  The Ninth Circuit has acknowledged that the distinction is “subtle” and pointing it out to a jury “may be fruitless since conjecture takes over.” Ragghianti, 560 F.2d at 1381.  Still, the court has described it as “a crucial distinction,” id.,  and given it force in at least two ways.  First, the court has held, perhaps because of the fact that the distinction is subtle, “that proper implementation of the rule requires ‘an explicit admonition to the jury by the court at the time a prior inconsistent statement is admitted, and also an instruction at the close of trial, that the statement may be considered only as bearing on credibility.’”  Id. (quoting Bartley v. United States, 319 F.2d 717, 719 (D.C. Cir. 1963)).  Second, the fact that “the maximum legitimate effect of the impeaching testimony can never be more than the cancellation of the adverse answer,” Ragghianti, 560 F.2d at 1381 (quoting United States v. Cunningham, 446 F.2d 194, 192 (2d Cir. 1971)), gives rise to the prohibition on calling a witness for the sole purpose of impeaching the witness with a prior inconsistent statement, which was discussed in a prior post a year and a half ago (see “They Don’t Get to Impeach Something They Knew They Were Going to Get” in the June 2014 link at the right).  Then a third way to give force to the distinction between the use for impeachment and the use as substantive evidence is in arguing the sufficiency of the evidence and/or the weight of the evidence in a harmless error or plain error analysis.  The fact that the prior inconsistent statement has no substantive value means it can’t be considered in evaluating the evidence for these purposes.

So remember these distinctions.  They can be useful in appellate and post-trial litigation even if they’re not for practical arguments made to a jury.