July 25, 2012
Second Circuit rejects sex offender's effort to expand Padilla to undo plea
The Second Circuit handed down an interesting panel opinion earlier this week in US v. Youngs, No. (2d Cir. July 23, 2012) (available here), which gets started this way:
Defendant Mark Allen Youngs (“Youngs”) appeals from his judgment of conviction. On August 27, 2008, Youngs waived indictment and pleaded guilty in the U.S. District Court for the Western District of New York to a two-count Superseding Information that charged him with producing child pornography in violation of 18 U.S.C. § 2251(a) (“Count One”); and possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), (b)(2) (“Count Two”). Youngs argues that his plea was defective because the district court did not advise him of the possibility of civil commitment as a sexually dangerous person at the end of his prison term. We hold that the district court was not required by due process or Rule 11 of the Federal Rules of Criminal Procedure (“Rule 11”) to advise Youngs of the possibility of civil commitment and affirm the conviction.
These paragraphs from the Youngs opinion explain why the Supreme Court's recent ruling in Padilla does not help carry the day for the defendant here (some cites and footnotes omitted):
While Youngs refers to Padilla as representing a “trend away from the distinction between direct and collateral consequences,” Appellant Br. at 22, Padilla’s holding was limited to the requirement of counsel to advise of deportation pursuant to their Sixth Amendment responsibilities. These Sixth Amendment responsibilities of counsel to advise of the advantages and disadvantages of a guilty plea are greater than the responsibilities of a court under the Fifth Amendment. See Libretti v. United States, 516 U.S. 29, 50-51 (1995) (holding that counsel, not the court, bears the responsibility of advising a defendant of the consequences of a guilty plea, apart from the “small class of rights” enumerated in Rule 11). Thus, the Padilla Court's unwillingness to apply the direct/collateral distinction in the Sixth Amendment context does not demonstrate the Court’s intention to do away with that distinction entirely in the Fifth Amendment context....
While the Court in Padilla did not discard the direct/collateral distinction for due process, we recognize that Padilla may create some uncertainty as to the usefulness of categorizing certain consequences as either “direct” or “collateral” in the Fifth Amendment context. We nonetheless conclude that advising of the possibility of civil commitment under the Act does not fall within the scope of a district court’s due process obligations because the concerns expressed by the Supreme Court in Padilla as to deportation in the context of adequate counsel under the Sixth Amendment do not apply to such a remote and uncertain consequence as civil commitment.
In deeming deportation a “virtually inevitable” result of a noncitizen’s conviction for certain offenses, the Supreme Court pointed out in Padilla that the only way for such defendants to avoid deportation is the “possible exercise of limited remnants of equitable discretion vested in the Attorney General to cancel removal for noncitizens convicted of particular classes of offenses.” Padilla, 130 S. Ct. at 1478, 1480. Because deportation under these circumstances is nearly automatic, the Court concluded that deportation must be reviewed by counsel. Id. at 1482-83. As discussed above, however, future civil commitment under the Act is not nearly as certain. The Act provides discretion to the Government in choosing whom to certify for possible civil commitment. Unlike deportation, the district court ultimately determines whether a defendant is civilly committed. While the qualifying misconduct here is likely a predicate to consideration for civil commitment, once the Government decides to certify an inmate — Youngs or anyone else — for civil commitment, the Government will still have to establish by clear and convincing evidence that the inmate suffers from a condition that will make him sexually dangerous to others. Thus, the likelihood of Youngs’s civil commitment is uncertain, both at the time of his plea and at the completion of his period of incarceration.
July 25, 2012 at 07:02 AM | Permalink
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"two-count Superseding Information"
Can someone explain what that means?
Posted by: curious | Jul 25, 2012 9:10:03 AM
means the state realized the defendant had a way to explain or prove the original charges were bullshit so had to change charges in midstreem to one he could NOT defend against!
Posted by: rodsmith | Jul 25, 2012 10:11:16 AM
Curious, when you file an indictment, there are two ways to amend that indictment: a) get a new indictment' b) file a superseding information. The reasons for that amendment can range from a mere typographical error (e.g., putting in January 10, 2004, instead of January 10, 2005)to filing a reduced charge pursuant to a plea agreement (which does not necessarily mean that there was insufficient evidence to support the original charge).
Posted by: TMM | Jul 25, 2012 10:34:07 AM
rodsmith's reply shows why he totally cracks me up, and TMM's shows why is such a valuable addition here.
Posted by: Bill Otis | Jul 25, 2012 2:28:55 PM
It seems to me that the court reached the right result in finding that civil commitment of sex offenders is too spectulative to raise similar due process issues to deportation.
oh and I join bill in saying that rodsmith's response was priceless (even though he hates me).
Posted by: Erika | Jul 25, 2012 3:58:43 PM
i don't hate you erika! pity the emotional damage you obviously sufered as a child...but never hate!
thanks bill. but you have to admit that when things like that happen these days...what i'm thinking is what a big part of normal americans are also thinking!
Posted by: rodsmith | Jul 26, 2012 12:39:22 AM
I'd say it's a close call, but I think the court probably made the right call. As far as I understand deportation proceedings, they're not exactly a foregoing conclusion. Even when someone is removable, even on criminal grounds, they can still hang out for a while, even indefinitely (though Obama stepped up deportation of removable aliens).
Even with that being said, civil commitment seems to be a prospect left largely up to chance as to whether or not it will happen.
Posted by: Guy | Jul 26, 2012 12:50:57 AM
The difference is that relief from removal is the non-default. The executive has to act in order for there to be any such relief. In the civil commitment context however it takes executive action to even try for the commitment and even then it is not guaranteed that the courts will agree.
Posted by: Soronel Haetir | Jul 26, 2012 3:20:37 AM
Nosaltres, però la conclusió que l'assessorament de la possibilitat de compromís civil en virtut de la llei no estan compreses en l'abast de les obligacions del degut procés un tribunal de districte a causa de les preocupacions expressades per la Cort Suprema de Padilla com a la deportació en el context d'una defensa adequada en la Sisena Esmena no s'apliquen a tal conseqüència remota i incerta com civils commitment.It em sembla que el tribunal va arribar a un bon resultat en la recerca d'aquest compromís civil dels delinqüents sexuals és massa spectulative elevar similars problemes en el procés a causa de la deportació.
Posted by: converse pas cher | Jul 26, 2012 4:00:37 AM
I understand that was the metric that the distinction hinged on. As far as I know, also, those convicted of aggravated felonies (a term of art under the INA) are subjected to expedited removal and are not eligible for most forms of relief (with the exception of what I would imagine are truly remarkable executive actions).
As far as civil commitment goes, I suppose it would depend on the state statutes at play as to the likelihood of it occurring, though it would be less likely regardless than deportation subsequent to AF conviction.
Posted by: Guy | Jul 27, 2012 9:02:45 PM
Soronel and Guy,
People convicted of aggravated felonies are not eligible for cancellation of removal, the most charitable form of removal in the currently-existed Immigration and Nationality Act. They are, however, eligible for other forms of relief from removal: withholding of removal, protection under the Convention Against Torture, and relief under former INA § 212(c) come to mind. It's a common misperception that removal is automatic upon conviction for an aggravated felony. This isn't to say that obtaining relief is easy for someone convicted of an aggravated felony. It's not. But it's never easy with any conviction, even one that's not for an aggravated felony.
César | crImmigration.com
Posted by: César Cuauhtémoc García Hernández | Jul 28, 2012 10:40:01 PM