U.S. v. Nevils, 548 F.3d 802 (9th Cir. 2008) Rehearing ordered, June 16, 2009; 570 F.3d 1123 (9th Cir. 2009) Only in the Ninth Circuit could an appellate court decide a case like this. The result is so inconceivable the court has ordered a rehearing en banc. Police officers entered an apartment and found Nevils asleep with a loaded automatic weapon in his lap and a loaded handgun by his side. Drugs and money were in plain sight on a nearby nightstand. Needless to say the jury convicted Nevils. The court majority (2-1) did not think Nevils knowingly possessed the weapons, and some unknown party had left all these items in plain sight. Aside from ignoring the fact the jury heard all the evidence and obviously disbelieved the defendant, the Ninth Circuit majority reversed. From the dissent to a reversal on appeal of a defendant convicted or possessing firearms: “Earl Nevils [defendant] was surprised when two LA police officers with guns drawn ordered him not to move [from a sleeping position in bed]. But Nevils was not amazed in the least by the circumstances in which he found himself: he had a loaded, chambered semiautomatic Tec 9 on his lap and a loaded, chambered .40 caliber pistol by his leg. Nor was he astonished by the marijuana, ecstasy, cash and a cellphone on a table a foot away. Although the unoccupied apartment was not his, Nevils wasn’t the least bewildered at finding himself in Apartment # 6-officers had found drugs and guns in the apartment just three weeks earlier and had arrested Nevils there for parole violation. According to one of the officers, Nevils first impulse was to ‘grab towards his lap’ where the Tec 9 lay and ‘then he stopped and put his hands up.’ He later exclaimed to an officer, ‘I don’t believe this s—. Those m———— left me sleeping and didn’t wake me.’ The jury found him guilty of being a felon in possession.” “The [2-1] majority panel overturns his conviction because it finds the evidence insufficient to show that Nevils knowingly possessed the weapons. It surmises that it is equally plausible that someone-anyone, actually, since the defense couldn’t finger any person in particular-set Nevils up by placing the guns on him while he was in a drunken stupor. Thus, the majority concludes, no reasonable juror-certainly not the twelve who did-could have found that Nevils knowingly possessed the guns. I respectfully dissent.”
While Congress bulks up employment of border control agents, funds an impenetrable wall between the United States and Mexico, and immigration agents continue raids on employers who hire illegal aliens, the Attorney General (AG) rescinds a policy of the previous administration disallowing the use of “ineffective counsel” as a defense in deportation hearings. The rationale of the current AG for abolishing this rule is incoherent and irrelevant : “…the introduction of a new procedural framework depended in part on Attorney General Mukasey’s conclusion there is no constitutional right to effective assistance of counsel in [deportation] removal hearings. Because that conclusion is not necessary to decide these cases under [the previous rule]or to initiate the rulemaking process, this order vacates the [previous rule]in its entirety.” Not only is this explanation incoherent but plainly wrong. The right of defendants in criminal cases to the “effective assistance of counsel” at trial and sentencing emanates from the Sixth Amendment to the Constitution applicable to criminal cases only. Immigratrion hearings are not criminal cases, only civil proceedings at best and then only administrative hearings. While Congress attempts to stem the tide of illegal aliens, the AG places a major leak in the dike by allowing interminable delays in deportation hearings while applicants allege their counsel was “ineffective.” Unlike criminal cases, counsel are not mandatory in deportation hearings, but when retained the Immigration Judges will now try to determine whether their representation was “ineffective.” Using what standard? The same as in criminal cases? There is no comparison between counsel who represent defendants against prosecutors in criminal cases and counsel retained in an administrative hearing of aliens facing deportation. Given the Ninth Circuit’s embrace of the AG’s abolition of a sensible rule on appeal from Immigration Judge decisions, the courts can expect a flood of challenges to deportation designed to delay the proceedings. Assuming counsel is somehow found “ineffective,” the case must be re heard. And appealed. The Supreme Court has never ruled that “ineffective counsel” is a ground of appeal from an immigration hearing nor that applicants in immigration hearings are entitled to counsel. Even the Ninth Circuit has held that immigration hearings are civil in nature and applicants are not entitled to counsel unless the proceedings are “fundamentally unfair” and violate due process: Torrez-Chavez v. Holder, 567 F.3d 1096 (2009). The AG has also “clarified” a Board order denying discretion of an IJ to reopen proceedings based on events occurring after entry of final order of removal, including failure by counsel to file a timely petition for review. Previously the Fourth Circuit had held to the contrary but the Supreme Court vacated the order citing the AG’s “clarification”; Afanwi v. Holder, 2009 Wl 31618444. Expect more delay.