CULTURE AND ABILITY TO COMPREHEND MIRANDA

More from the Redgebol case:

The Defendant's Cultural Background and Limited Intellectual Ability

Finally, similar to Jiminez but distinguishable from Al-Yousif, Redgebol's cultural background and limited intellectual ability contributed, along with the other factors detailed above, to his inability to make a knowing and intelligent waiver of his rights.While the defendant in Jimenez was found to function at a very low cognitive level, here, Redgebol, although oriented in time and place to his situation and surroundings, was similarly limited in his ability to understand the Miranda advisement as it was explained to him by Abyei and Detective Frederickson. Both defendants never went to school and were presumably functionally illiterate. Further, Redgebol, like Jiminez, appeared to struggle with complex concepts. His native language Dinka does not include the abstract ideas that form the basis of our Miranda rights.The trial court heard conflicting evidence about how much Arabic Redgebol actually understood. It is likely that Redgebol understands some Arabic but it is undisputed that he has not been taught in that language, thus limiting his ability to understand complex concepts in Arabic any better than in Dinka. Redgebol's limited understanding of Arabic was confirmed by Rieang's testimony that Redgebol had not understood the announcement in Arabic on Sudanese television about the government's plan to conscript young males, a plan that presumably would have affected both brothers. Rieang explained at the suppression hearing that Redgebol could only understand the announcement after Rieang explained it to him in Dinka. Therefore, in the past, Redgebol had experienced difficulty understanding other abstract concepts when spoken in Arabic, even when the topic had a direct impact on him.

Further, our reasoning in Al-Yousif does not support a finding in this case of a knowing and intelligent waiver. In that case, the defendant, although communicating in English at a fifth-grade level, was enrolled in college after several years of schooling in the United States and was found to understand numerous complex English concepts. We thus found that he had sufficient educational knowledge to grasp the three Miranda rights, notwithstanding his cultural background.

Here, however, Redgebol's length of time in the country, education, and functioning intelligence level did bear on his depth of understanding such that he could not comprehend his three basic Miranda rights as explained by Abyei and Detective Frederickson.

Contrary to the college-educated Al-Yousif, Redgebol has never been to school. Instead, until a very short time before the interrogation, he lived in a pastoral society with an entirely different cultural conception of legal disputes as a disagreement between families where punishment is normally meted out in the form of the party at fault giving cows to the prevailing party. This cultural background explains why throughout the attempted advisement, Redgebol asked seemingly nonsensical questions about his family and how they would know to come and defend him because that would have been the normal practice in the Dinka legal system. Redgebol's knowledge of the Dinka customs and practices further explains why he wanted to speak with the victim's family, whom Redgebol believed was the other party to this dispute, rather than the state.His questions during the interrogation indicated that his cultural background significantly affected his ability to understand his Miranda rights, as we acknowledged could happen in Al-Yousif. In the Dinka culture, one only has a right to tell the truth. Speaking to an investigating authority is compulsory in the Dinka legal system, a concept completely contrary to our notion of the right to remain silent. The Dinka system has no lawyers, and thus, Redgebol labored under a substantial misunderstanding of a lawyer's role in the interrogation. The concept that he could ask for an attorney to represent him and that he could refuse to speak to the police would have been completely foreign to Redgebol.In sum, the trial court was correct in following our past case law and finding that Redgebol did not knowingly and intelligently waive his Miranda rights.

First, the interpreter Abyei did not have adequate training or experience to explain the Miranda rights to Redgebol. Second, Detective Frederickson did not resolve the substantial misconceptions regarding the three rights that Redgebol's nonsensical answers revealed, choosing instead to interrupt Redgebol or ignore his questions. Finally, because of his cultural background and limited intellectual functioning, Redgebol could not understand an advisement of such abstract concepts in Arabic.

CULTURE AND MIRANDA: Statements Suppressed

The Supreme Court of Colorado upheld a trial court's suppression of statements made by a defendant in a child sex abuse case. People v Redgebol. The Court in the Redgebol issued on May 27, 2008, discussed at length the inadequate advice of rights, and otherwise involuntary nature of the statements.

Only a portion of this important opinion is reprinted below; however, it should be noted that the opinion is subject to revision.
SYLLABUS: The prosecution appeals a trial court order suppressing statements made by the defendant, a recent Sudanese refugee to the United States, during a custodial interrogation. The supreme court holds that because of the inadequate translation of the Miranda advisement, the substantial miscommunication between the defendant and the officer, and the defendant's cultural background and limited intellectual ability, the defendant did not knowingly and intelligently waive his Miranda rights and agree to speak to the officer without a lawyer present.

In addition, the court finds that after the defendant unambiguously requested a lawyer, the officer did not honor the request by ending the questioning and leaving the room. The court rejects the prosecution's argument that the defendant reinitiated the interrogation thirty seconds after requesting a lawyer. Therefore, the supreme court affirms the trial court's suppression order.

The People challenge the trial court's order suppressing statements made by the defendant Sebet Redgebol during a custodial interrogation. The trial court suppressed the statements because Redgebol, a recent Sudanese refugee to the United States, did not knowingly and intelligently waive his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and because the investigating officer did not properly honor Redgebol's request for a lawyer.We now affirm the trial court's order. We hold that because of the inadequate translation of the Miranda advisement, the substantial miscommunication between the defendant and the officer, and the defendant's cultural background and limited intellectual functioning, he did not knowingly and intelligently waive his Miranda rights and agree to speak to the officer without a lawyer present. In addition, we find that after the defendant unambiguously requested a lawyer, the officer did not honor the request by ending the questioning and leaving the room.I

I. Facts and Procedural HistoryRedgebol is charged with sexual assault on a child by one in a position of trust. The victim was fifteen years old when the alleged assault occurred. A member of the Dinka tribe, Redgebol grew up in a small village in southern Sudan. He came to the United States as a United Nations refugee, and had been living in this country, specifically the Denver metropolitan area, for six months when he was arrested. Since arriving here, Redgebol and his family lived in the house of the victim and her family. Redgebol, who has never attended school, speaks the Dinka language and only has a limited understanding of English gained from watching daytime television.

After Redgebol was arrested, he was transported to the Arapahoe County jail so he could be interviewed by Detective Todd Frederickson of the Aurora Police Department. However, Detective Frederickson had to first find a Dinka interpreter. This proved difficult; indeed, Detective Frederickson testified at the suppression hearing that he was "not able to find anyone who had even heard of the Dinka language." Eventually, after Redgebol had been in jail for a day and a half, Detective Frederickson did locate a Dinka translator, Helen Abyei.Abyei was also a native of Sudan. Her native tribal language was Ngogo, but she also spoke Dinka, Arabic, and English. At the time of Redgebol's questioning, Abyei had been translating for Sudanese refugees for six years: two years in Egypt and four years in the United States. Since coming to the United States, Abyei had worked as a hospital translator, a job for which she received training and was certified. Abyei had not been trained to interpret criminal law terminology or concepts, and testified at the suppression hearing that she had not translated for the police prior to the questioning of Redgebol. Abyei had also never translated formal court proceedings, nor was she certified to interpret such a proceeding.Because all of the jail's interview rooms were occupied, Detective Frederickson conducted the interview in the sheriff's paperwork room, where there was no video recording equipment. As a result, the only record of the interrogation is an audio recording, for which no official transcript exists.At the beginning of the audio recording, before Frederickson has even introduced himself, Redgebol can be heard speaking. When the detective asked Abyei what Redgebol was saying, Abyei replied, "He's asking if you are an advocate or something. I don't know what it is.
...... Redgebol contended that the many serious problems with the translation, which combined with his background, lack of education, low intellectual functioning, and the differences between the Dinka and American criminal justice systems, prevented him from knowingly and intelligently waiving his rights. Redgebol further asserted that he had unambiguously requested counsel, but that Detective Frederickson had not honored his invocation of his right to counsel.

.......Abyei also testified that English words do not always translate literally into Dinka, and that when she encountered this situation, she would explain the concept by putting it in a sentence, giving an example, or using Arabic words instead. For example, Abyei testified that she told Redgebol that he had a right to "bring" a lawyer, rather than the right to be represented by one, and that if he could not afford a lawyer, one would be "found" for him, rather than provided for him. Abyei stated that she used Arabic words to explain concepts because Redgebol spoke to her in Arabic and he seemed to understand it. She maintained that it was normal for people in southern Sudan to intersperse the tribal languages with Arabic. Abyei also acknowledged that she did not attempt to explain to Redgebol the differences between the Dinka and American legal systems.Lastly, Abyei testified about the Dinka legal system. In the Dinka system, disputes are handled by the tribe's chief and elders, often while sitting under a tree. The parties to the dispute do not have the right to remain silent, but rather the right to tell the truth; that is, they are compelled to tell the elders what happened. Abyei stated that there are only cultural laws, not written ones. There are no lawyers in the system, but one's family and friends can come and defend one or speak as a witness. Indeed, the Dinka system functions as a dispute between the families, not the individuals involved. Abyei testified that prisons do exist in Sudan, but the usual punishment handed down by the elders requires the losing party's family to give cows to the victorious party's family as compensation.Redgebol's brother, Gabriel Rieang, also testified. Rieang stated that he and his brother grew up in a small village in southern Sudan with no electricity, newspaper, school, television, or English classes.

.....In ruling that Redgebol did not knowingly and intelligently waive his rights and that Detective Frederickson did not scrupulously honor Redgebol's request for an attorney, the trial court made significant factual findings.It found that Redgebol was a refugee from Sudan and a member of the Dinka tribe who had lived in the United States for six months before the interrogation occurred. It determined that Redgebol had limited, if any, English language skills, and those skills were mostly learned from watching daytime television after his arrival in this country. The trial court found that he had limited intellectual abilities, but acknowledged both that Redgebol had said that he understood his rights and that his mental capacity was not so diminished as to render him unable to perceive the situation. The trial court concluded that some of Redgebol's answers were responsive to Detective Frederickson's questions, but other responses were "nonsensical and not directly responsive" to the questions asked by the officer.Moreover, the trial court determined that Abyei did not understand the Miranda rights and, as a result, she did not adequately translate those rights to Redgebol. The court stated: "I believe that [because of] the interpreter's lack of understanding of the rights being afforded pursuant to Arizona v. Miranda [sic], they were not adequately translated to Mr. Redgebol." In addition, the court found that when Redgebol answered, "Yes, [I] would like a lawyer," in response to Detective Frederickson, the detective should have stopped the interrogation and left the room at the time of that request.

IMMIGRATION CRIMES: 270 Undocumented workers sentenced to five months in Federal Court

The New York Times reports on May 24, 2008 that 270 undocumented immigrants were sentenced this week to five months in prison for working at a meatpacking plant with false documents.

"The prosecutions, which ended Friday, signal a sharp escalation in the Bush administration’s crackdown on illegal workers, with prosecutors bringing tough federal criminal charges against most of the immigrants arrested in a May 12 raid. "

"The unusually swift proceedings, in which 297 immigrants pleaded guilty and were sentenced in four days, were criticized by criminal defense lawyers, who warned of violations of due process. Twenty-seven immigrants received probation. The American Immigration Lawyers Association protested that the workers had been denied meetings with immigration lawyers and that their claims under immigration law had been swept aside in unusual and speedy plea agreements. "

"The illegal immigrants, most from Guatemala, filed into the courtrooms in groups of 10, their hands and feet shackled. One by one, they entered guilty pleas through a Spanish interpreter, admitting they had taken jobs using fraudulent Social Security cards or immigration documents. Moments later, they moved to another courtroom for sentencing."
The pleas were part of a deal worked out with prosecutors to avoid even more serious charges. Most immigrants agreed to immediate deportation after they serve five months in prison. "

"The hearings took place on the grounds of the National Cattle Congress in Waterloo, in mobile trailers and in a dance hall modified with black curtains, beginning at 8 a.m. and continuing several nights until 10. On Wednesday alone, 94 immigrants pleaded guilty and were sentenced, the most sentences in a single day in this northern Iowa district, according to Robert L. Phelps, the clerk of court."

Link to full article.

CULTURAL DEFENSE: Testimony of Cross Cultural Expert Excluded: Calling Mother a Prostitute

An appeals Court in California upheld the exclusion of testimony by an expert in cross cultural forensic psychology Dr. LaSalle. People v Trejo.

"FACTS. Trejo, his cousin Ricardo Acosta Rosales, another cousin and a fourth man were sitting in a car listening to music. Trejo and Rosales, who both were intoxicated, began to quarrel. After some friendly insults, Rosales insulted Trejo's mother by referring to her as a prostitute. Trejo got out of the car and broke a beer bottle on the sidewalk. He threatened to "stick" Rosales unless Rosales stopped making such insults. Rosales did not take the threat seriously, stating that Trejo would not do it because they were cousins. When Rosales again called Trejo the "son of [a] whore mother" or an insult to that effect, Trejo stabbed Rosales in the neck with the broken bottle. The other men, including Trejo, tried to assist Rosales but Rosales bled to death before he reached a hospital.Trejo drove away from the scene. He was arrested that night for driving under the influence of alcohol. He admitted stabbing Rosales with the broken bottle after Rosales called him a "fucking faggot" and insulted his mother.At trial, Trejo's defense was that, although he killed his cousin, he was guilty of voluntary manslaughter, not murder. He argued that his intoxication negated the premeditation and deliberation required for first degree murder, and that Rosales's insults aroused a heat of passion that negated the malice necessary for second degree murder.

Trejo presented expert evidence that an accusation of prostitution by one's own mother in Trejo's Mexican culture is likely to result in violence, and that alcohol impairs a person's judgment and increases impulsive behavior.

Evidence of ProstitutionTrejo contends that the trial court erred in excluding evidence of a history of prostitution in Trejo's family. He argues that references to Trejo's mother as a prostitute were especially inflammatory because certain members of the family had been or were prostitutes. We conclude there was no abuse of discretion in excluding the evidence.A trial court has broad authority to exclude evidence if its probative value is substantially outweighed by the probability that admission will necessitate an undue consumption of time, create a substantial danger of undue prejudice, confuse the issues, or mislead the jury. "

"Trejo presented evidence that he was aroused to a heat of passion based on the effect of Rosales's insults in Mexican culture. Dr. Jose LaCalle, an expert in cross-cultural forensic psychology, testified that Trejo told him that Rosales said, "fuck your mother," and "fuck your mother, your mother whore, or whore mother." Dr. LaCalle opined that "[t]hose are the most serous insults any man can pronounce in Mexico and in most Latino America." They are "fighting words" which "might provoke a physical reaction" in a person of Mexican cultural background. He further testified that, in his opinion, the killing "directly related to the heavy consumption of alcohol and to the inflammatory words that the victim allegedly told the defendant."The trial court, however, excluded additional testimony by Dr. LaCalle regarding the history of prostitution in Trejo's family. At a.... hearing, LaCalle stated that Trejo and others told him that Trejo's mother was not a prostitute, but that her sisters, including Rosales's mother, were or had been prostitutes.

LaCalle was prepared to testify that, in his opinion, actual prostitution in the Trejo family made Rosales's insults even more inflammatory than would otherwise be the case.Trejo argues that the exclusion of this evidence "doomed" his defense by preventing him from "tell[ing] the jury why he killed his cousin." He argues that the shame created by having aunts who were prostitutes might have convinced the jury that Rosales's insults were sufficiently provocative to inflame a reasonable person."

" We disagree.The trial court admitted evidence which told the jury why Trejo killed his cousin. Dr. LaCalle and Trejo himself testified that Trejo killed when he became enraged over Rosales's insulting accusations that Trejo's mother was a prostitute, and Dr. LaCalle testified as to cultural factors that explained the inflammatory nature of such insults in Mexican culture. The trial court reasonably could conclude that evidence regarding prostitution by family members was cumulative of other evidence, and that prostitution by Trejo's mother raised a collateral issue that may have confused the jury.In addition, as we have stated, voluntary manslaughter requires both that the defendant acted in the heat of passion and that an ordinarily reasonable person of average disposition also would have acted in the heat of passion. "

"The trial court could reasonably conclude that the excluded evidence would not have assisted the jury in determining whether Trejo's passion was objectively reasonable based on sufficient provocation. We have no doubt that accusing a person's mother and other family members of engaging in prostitution would be a serious and inflammatory accusation in any culture. No case, however, has held that cultural factors presented in this case would provide an objective basis for killing in the heat of passion.For the same reasons, we reject Trejo's claim that the trial court's ruling violated his federal constitutional right to a fair trial. Although defendants have a constitutional right to present a defense, states retain broad latitude to establish rules excluding evidence from criminal trials. "

IMMIGRANT DETAINEE BASIC MEDICAL CARE ACT of 2008

( Editor: See related series on Lack of Basic Medical Care while In Immigration Custody.)

The American Civil Liberties Union applauds Senator Robert Menendez (D-NJ) for introducing the Detainee Basic Medical Care Act of 2008. This legislation requires the Department of Homeland Security (DHS) to develop procedures to ensure adequate medical care for all detainees held by U.S. Immigration and Customs Enforcement (ICE). The legislation also requires ICE to report detainee deaths to the DHS and Department of Justice Offices of Inspector General.

"The government's failure to provide adequate medical care to immigrants held in its custody is not just inhumane, but is also a betrayal of our constitutional principles," said Caroline Fredrickson, director of the ACLU Washington Legislative Office. "Waiting for this long overdue legislation, far too many immigration detainees have needlessly suffered and died while DHS denied them much needed medical care."

Menendez's bill is a companion to H.R. 5950, introduced last week by Representative Zoe Lofgren (D-CA). Both Lofgren and Menendez should be commended for offering a solution to the horrendous actions by DHS to deny immigrant detainees access to basic health care.

The ACLU's National Prison Project has uncovered shameful and inexcusable inadequacies regarding medical treatment for immigration detainees, including extreme failures in medical care that have led to death and serious disfigurement. These efforts resulted in the U.S. government admitting its responsibility for the death of a detained Salvadoran immigrant, Francisco Castaneda, a former ACLU client who was featured on 60 Minutes and in the Washington Post. Mr. Castaneda was repeatedly denied adequate medical care and later died as a result.
Currently, no government body is charged with accounting for deaths in ICE detention, a patchwork of county jails, privately run prisons and federal facilities. Getting details about those who die in custody is a difficult undertaking left to family members, advocacy groups and the media. Since 2003, at least 83 people have died in immigration custody.
More than 300,000 men, women and children are detained by ICE each year. They include asylum seekers, long-time green card holders with minor immigration violations and families with small children.

"This important legislation would ensure that immigration detainees receive treatment that reflects America's fundamental values," added Joanne Lin, ACLU Legislative Counsel. "Congress must provide oversight to ensure that immigrant detainees receive fair and just treatment, including the critical medical care they need."

May 13, 2008.

FEDERAL PROSECUTIONS OF IMMIGRANTS: Illegal Reentry, 8 USC 1326 now leading charge in federal prosecutions

According to the organization TRAC, the charge of "Reentry of deported alien" (Title 8 U.S.C Section 1326) was the most frequent recorded lead charge in federal prosecutions. See:
http://trac.syr.edu/tracreports/bulletins/overall/monthlyfeb08/gui/ .


" Federal convictions in February 2008 resulting from immigration matters jumped to the highest point in recent history, according to timely data from the Justice Department. The total of 6,583 such convictions is nearly double what it was in the previous month, up an unprecedented 96 percent. The highly unusual spurt in the convictions of individuals charged with various immigration crimes appears to be the result of "Operation Streamline." Under this recently intensified administration policy, according to news reports and interviews with federal public defenders, the government has charged a rapidly growing number of undocumented aliens with various federal criminal charges in selected districts along the Mexican border. "Operation Streamline" began as a pilot project in December 2005 in Del Rio, Texas. For reports on the latest enforcement trends, go to: http://trac.syr.edu/tracreports/bulletins/ In addition to providing counts of the immigration prosecutions and convictions that occurred in February, similarly timely information is available for many other categories of enforcement such as terrorism, white collar crime, official corruption, drugs, etc. Free reports are also available for major agencies such as the DEA, FBI, IRS and DHS. David Burnham and Susan B. Long, co-directors Transactional Records Access Clearinghouse Syracuse University Suite 360, Newhouse II Syracuse, NY 13244-2100 315-443-3563 trac@syr.edu http://trac.syr.edu/ "

IMMIGRATION LAW: BIA issues opinion on what constitutes crime of child abuse

This opinion Velazquez-Herrera of the Board of Immigration Appeals May 20, 2008 should be of interest to criminal defense attorneys as well as immigration attorneys advising criminal defense attorneys.

INTERPRETERS: Court Interpreters Act applies to Grand Jury

The Tenth Circuit has ruled that the Court Interpreters Act 28 USC 1827 applies equally to grand jury proceedings. USA v Hasan, 10th Cir. May 20, 2008. " Seeking refuge from the civil war in Somalia, Hasan Ali Hasan fled to the United States and was granted asylum in 1997. Over the years that followed, Mr. Hasan sought to learn English, moved to Oklahoma, worked there as a school bus driver, and married an American. In 2004, a federal immigration agent interviewed Mr. Hasan about statements he made in connection with his 1997 asylum application. In 2005, Mr. Hasan was called to testify before two different grand juries investigating the truthfulness of the information he provided during the 2004 interview. Ultimately, the second grand jury indicted Mr. Hasan, not for lying during the 2004 interview or in his 1997 asylum application, but for perjury during the grand jury proceedings themselves. Mr. Hasan was tried, convicted on three counts of perjury, acquitted on a fourth, and sentenced to fifteen months in prison.

Before us, Mr. Hasan argues, among other things, that Congress, in the Court Interpreters Act (“CIA”), afforded him the right to an interpreter during the grand jury proceedings, that his alleged perjury was really the product of language difficulties he encountered without the assistance Congress guaranteed, and that the appropriate remedy for this statutory violation is the dismissal of the charges brought against him.

The district court initially determined that the government’s failure to offer an interpreter during grand jury proceedings was not error, and that no interpreter was needed at trial either. Later, however, the district court reversed itself on the latter score, holding that the presence of an interpreter at trial was required to protect Mr. Hasan’s right to a fair trial. The court did not, however, reconsider whether the CIA also required an interpreter at the grand jury proceedings. Because the statute applies with equal force to grand jury proceedings and trials, we think this omission rises to the level of plain error. While it is possible to imagine reasons for the result the district court reached requiring an interpreter in one setting but not the other – no such reasons are apparent from the record as it stands before us. In deference to Congress’s statutory command in the CIA, we therefore remand the matter to the district court so that it might ascertain whether the factors that motivated it to reconsider its ruling about the necessity of an interpreter at trial also pertain to the grand jury context.
***

At several points during the grand jury proceedings, Mr. Hasan’s command of the English language appeared to be in question, some examples of which can be found in Appendix A. To pluck but one here, at the conclusion of his April testimony Mr. Hasan was asked whether he understood the questions he had been asked. Mr. Hasan responded that, while he had attended five semesters of ESL (English as a Second Language) classes since entering the United States, he had difficulty understanding some of the questions asked of him:
Q: Is there – have you been able to understand what I have asked you?
A: Not sure about it, but I try to understand it.
. . .
Q: So you’re pretty able to understand what people say to you in English?
A: Not, like, 100 percent. I can say, like, 40 percent and if I don’t
understand, I tell them, What’s that mean? There’s a lot of words that
are hard for me, I can’t understand it.
Q: Okay. Was there anything that I failed to explain to you so that you felt
like you understood it?
A: Most of them.

***
To be sure, the government notes that elsewhere in the transcripts one can find instances where Mr. Hasan appeared more definite about his English ability; for example, testifying at the conclusion of his November appearance, Mr. Hasan represented that he thought he understood everything that was asked of him: Q: (By Mr. Woodward) Mr. Hasan, I would like to ask you whether you would like to change any of the answers that you’ve given to the Grand Jury today, whether you would like to add to them or change them in any way while you have an opportunity to do that?
A: No.
Q: Do you think you understood everything I asked you today?
A: Yeah, I think so.

TERRORISM TRIALS & CULTURAL EXPERTS: Trial Court excludes foreinsic linguist expert testimony

A trial court judge in Ohio has granted the government's motion to exclude testimony from three defense experts, including the testimony of a forensic linguist. 2008 U.S. Dist. LEXIS 38287, United States of America, Plaintiff v. Mohammed Zaki Amawi, et al., Defendants
Case No. 3:06CR719, UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO, WESTERN DIVISION

The defendants are charged with having conspired to kill and maim American service personnel in Iraq, provide material support and resources to persons seeking to kill U.S. Nationals outside the United States, and some defendants are charged with having unlawfully distributed a "how to" video and manual relating to bomb making. The trial court had also excluded some portion of the government expert's testimony.

Regarding the testimony of a forensic linguist, the Court found that "Roger W. Shuy, Ph.D., is Emeritus Professor of Linguistics at Georgetown University. He founded and then for thirty years directed Georgetown's sociolinguistic program. According to his Preliminary Report, Prof. Shuy is familiar with and able to apply "standard and accepted analytical procedures to discover and analyze language structure and principles."With regard to this case, Prof. Shuy engaged in "discourse analysis," based on a review of the conversations that Griffin recorded. This analysis encompassed: 1) topic analysis; 2) response analysis; and 3) "conversation strategy analysis."The first two of these analyses -- topics and responses -- as presented in Prof. Shuy's report, constitute little, if any, more than a recitation of what is readily discernible in the recorded conversations.As to topics, Prof. Shuy notes the topics El-Hindi raises and their recurrent incidence, the physical setting in which he raises them, and the frequent disconnect between what El-Hindi and Griffin want to talk about.Prof. Shuy's response analysis likewise consists, in essence, of a recapitulation of readily ascertainable aspects of how El-Hindi and Griffin interacted, or failed to interact, during their various encounters and conversations.Thus, the first two segments of the proposed testimony provide nothing beyond that which the jury can hear for themselves, or from which counsel can urge them to draw the inferences they seek to have the jurors draw.

The same is true with regard to the remaining segment of Prof. Shuy's proposed testimony -- "conversation strategy analysis." According to Prof. Shuy's report, "[s]peakers use language strategies consciously or unconsciously in their conversations with others." The principal such strategy emphasized in Prof. Shuy's report is ambiguity, particularly with the term "training." But, as Prof. Shuy observes, the recorded conversations provide a basis on which El-Hindi's counsel can argue that his "various referential meanings of 'training' remain constant even though Mr. Griffin tries very hard to convert them to his own meaning."The jury will be as able, especially when guided by the arguments of counsel, to reach the same conclusions [to the extent supported by the evidence] about Griffin's "conversational strategies" as contained in Prof. Shuy's proposed report, despite its semi-academic dressage. The jurors will not need the aid of his testimony to perceive and understand the significance of the evidence and arguments of counsel.Based on his understanding of Griffin's deployment of these strategies, Prof. Shuy's report offers several conclusions about the ways in which Griffin's mode of conversing with El-Hindi impaired commonality of understanding, especially with regard to the term "training."According to him, an undercover agent -- presumably, he means, an experienced and competent undercover agent seeking and generally able to obtain clear expressions of illegal intent on the part of his or her target -- will: 1) let the targets speak freely; 2) failing that to elicit useful evidence, offer hints of illegality to evoke an incriminating response; and 3) if still not successful, speak directly and unambiguously.As Prof. Shuy points out, Griffin did not follow this pattern. He was, as he himself admits, "proactive," often dominating the conversation and "talking over" other speakers. Aside from his admissions, the recordings speak for themselves with regard to the accuracy, or lack thereof, of this self-assessment of how he sought to accomplish his "information gathering" goals.Each of the points made in Prof. Shuy's conclusions can be made readily by El-Hindi's counsel: namely, that Griffin did not let El-Hindi talk freely, which is how one participant in a conversation typically finds out what another has on his or her mind, means, and wants to communicate. Counsel can point out that Griffin never once asked, "What do you want to do" or "What would you like me to do," much less, "What sort of 'training' are you talking about?" Counsel can point out the extent to which Griffin, rather than El-Hindi, raised and, in effect, sponsored certain topics, and sought to direct the conversations in ways other than they might, perhaps, have taken but for how he went about his work. They can, as well, point out where and how, in their view, El-Hindi was inattentive, distracted, preoccupied, unresponsive and/or uncomprehending. Counsel can argue that Griffin diminished the likelihood of comprehension, and thus conspiratorial agreement, by the strategies that he was employing.The fact that Griffin's use of those strategies was unconscious, rather than deliberate or directed by the F.B.I., does not matter. The effect on El-Hindi's understanding of what Griffin was talking about was the same regardless of whether Griffin was merely inarticulate and unaware of how he was employing certain strategies, or knew exactly what he was doing in that regard. To the extent the recordings support Prof. Shuy's observations and conclusions, they show what, whether conscious or not, was going on, and further expert commentary is not necessary. I conclude, accordingly, that El-Hindi's counsel, to make their points, and the jury, to understand the evidence and those points, do not need Dr. Shuy's assistance.Other courts have found testimony of the sort proffered here, including testimony by Prof. Shuy, not to be admissible for similar reasons.

Thus, in US v Evans, (11th Cir. 1990) the court, confirming the trial court's disallowance of Prof. Shuy's testimony, stated:
In deciding not to admit the testimony, the court concluded that while a jury in an appropriate case might be aided by testimony from a linguistic expert, the case at bar was not appropriate for such testimony. The court based this conclusion on several grounds. First, it noted that the recordings and transcripts that formed the basis of Dr. Shuy's conclusions were in evidence, had been played and read in court, and could be played and read again by the jury during deliberations. The court also found that the expert's testimony would not assist the jury because the subject matter of the testimony, conversation, was one which could be expected to be within the general knowledge of jurors. Finally, the court found that the testimony could be confusing and misleading to the jurors because it took matters out of context and, in some instances, was in the nature of conclusions regarding the appropriate interpretations to make of the recorded conversations.We hold that the district court acted within its discretion in excluding Dr. Shuy's testimony.

Shuy would have testified as to Kupau's intent based on the expert's analysis of an ordinary, brief conversation from aspects such as linguistics, discourse analysis, conversational analysis, structural analysis, topic recycling, topic clustering, response analysis, referencing analysis, language function analysis, and contrastive analysis. Such testimony was aimed not at explaining technical terms used in the conversation . . . . Instead, this expert sought to interpret language in ordinary usage, which the district court found would have confused, not assisted, the jury."

FOREIGN NATIONALS DETAINED UPON ENTRY TO US

The New York Times reports that an Italian national who was detained and later sent to an immigration jail in West Virginia, whose only purpose in coming to the United States was to visit an American woman he met in Europe. Italy is one of twenty-seven countries from which visitors are not required to obtain visas in advance of entry.

"He was a carefree Italian with a recent law degree from a Roman university. She was “a totally Virginia girl,” as she puts it, raised across the road from George Washington’s home. Their romance, sparked by a 2006 meeting in a supermarket in Rome, soon brought the Italian, Domenico Salerno, on frequent visits to Alexandria, Va., where he was welcomed like a favorite son by the parents and neighbors of his girlfriend, Caitlin Cooper.

But on April 29, when Mr. Salerno, 35, presented his passport at Washington Dulles International Airport, a Customs and Border Protection agent refused to let him into the United States. And after hours of questioning, agents would not let him travel back to Rome, either; over his protests in fractured English, he said, they insisted that he had expressed a fear of returning to Italy and had asked for asylum. "

“Now an innocent European, who has never broken any laws, committed any crimes, or overstayed his visa, is being held in a county jail,” Ms. Cooper wrote in an e-mail message to The New York Times last Wednesday, prompting a reporter’s inquiries."

ASK THE EXPERT: IMMIGRATION ATTORNEY JOHN OVINK

The Editor knows that one of the biggest frustrations for a criminal defense attorney, is helping a client avoid removal from the United States. In spite of pulling rabbits out of the hat in resolving the criminal case, a client could face deportation. The Editor asked immigration attorney and expert John Ovink "Whats a criminal defense attorney to do?

Background.

John was born and raised in The Netherlands. He lived and worked in Africa and Asia for 5 years and in 1988 sailed across the Atlantic. He personally experienced the lengthy, and difficult process of immigration before he was allowed to live, work, and study in the United States.

John received his Juris Doctor, Cum Laude from the University of Miami, and in October, 1996, John opened his law office in Tampa, Florida. He concentrates his practice exclusively on immigration law. His clients live in 12 States, and originate from over 50 countries.


Q: Are criminal defense attorneys able to analyze the potential immigration consequences for their clients, just by looking at federal statutes?

Criminal attorneys who specialize in immigration law and have intimate knowledge of the Immigration Act, as well as immigration case law, would certainly be able to do so. However, because the immigration act uses their own definitions of, for instance, a “conviction” or an “aggravated felony”, it becomes increasingly more complicated to analyze whether a plea bargain is good for the non-U.S. citizen defendant. For instance, a crime of theft could, depending on the circumstances and the plea agreement, be either a “petty crime” with no consequences, or an aggravated felony, for which virtually no remedy exists. A defense attorney who fails to ask whether his client is a non-U.S. citizen commits, in my opinion, malpractice!

Additionally, prior records, even if expunged and sealed, may still have immigration consequences. Even a pre trial intervention agreement may make a non-U.S. citizen ineligible for certain benefits under the Immigration Act. Therefore, a good defense attorney will make inquiries with an immigration lawyer who is up to date with the immigration consequences of criminal arrests. It really requires the analysis by an experienced immigration attorney who keeps up to date with the case law.

Q: If the client is a lawful permanent resident alien (LPR), and has a family, can a routine criminal charge, such as theft or driving under the influence, have any consequence?

As I stated above, yes, a crime of theft is considered a crime involving moral turpitude, which most likely will have immigration consequences. The fact that the permanent resident has a family has no immediate influence on the consequences of the conviction. For instance, whether the permanent resident is married and has children may still make her removable under the Immigration Act. That depends solely on how long she has been a LPR, when the LPR was convicted, and how many other convictions there are. Once a LPR is found to be removable from the United States, the existence of a United States citizen (USC) spouse and children may help her obtain relief from removal, such as re-instatement of LPR status by an immigration judge.


Q: What is DHS's primary focus for law enforcement involving immigrants?

DHS consists of several departments. Three of those focus on immigration. Previously, they were combined in the Immigration and Nationality Service, or I.N.S. Several years ago, I.N.S. was moved to the new Department of Homeland Security, and the legendary I.N.S. split up in three departments.

Citizenship and Immigration Services (U.S.C.I.S.) concentrates on the benefits side, and their focus is on adjudicating applications for LPR status, citizenship, work permits, and other benefits.

The Department of Customs and Border Protection (C.B.P.) focuses on protecting our borders, and making a determination whether someone is admissible to the usa. For instance, a lpr who has at any time in the past been convicted (INA definition!), anywhere, may be stopped at the border when returning from foreign travel and not be re-admitted. CBP may refer that person to secondary or deferred inspection, where the lpr is required to present a record of their arrest and conviction (even if sealed!), and may be placed in removal proceedings.

The third department, Immigration and Customs Enforcement (I.C.E.), is responsible for tracking and removing undesirable non-citizens. For instance, I.C.E. officers could be involved in finding a person who received a final order of removal (even an order issued in their absence) at some time in the past and who has failed to leave the usa; Their work may include having to arrest people while attending a “benefits” interview at USCIS, for instance in cases of suspected marriage fraud; or it may include a raid in the strawberry fields, construction sites or walmart to find undocumented workers. They are also required to follow up is anybody calls to report an undocumented immigrant. Once caught, a non-U.S. citizen (including LPR) will be detained, usually without bond, and transported to a D.H.S. detention facility. This facility may be hundreds of miles from where the non-U.S. citizen was arrested. In rare cases, the non-U.S. citizen will be able to file a motion with an immigration judge to set a bond hearing. If granted, a judge may set or deny a bond. During that hearing, I.C.E. is represented by an attorney, who can effectively block any request for bond, even if a judge grants one! It is very important to prepare well for such a hearing, and an immigration attorney can help. In most cases, non-U.S. citizens will be detained until a travel document has been obtained for them, and transported out of the usa. An immigration attorney may be able to obtain a “stay” of final removal if an immigration benefit is arguably available.

Reposted on May 15, 2008. Originally appeared March 12, 2008.

IMMIGRATION CRIMES: Union Rep Convicted of Harboring Illegal Aliens

A union representative for a Swift meat packing plant in Iowa was convicted on May 8, 2008 in federal court for harboring undocumented aliens. 8 USC 1324.

"Federal officials said the charges resulted, in part, because of union orientation speeches that Pereyra-Gabino gave to all new Swift employees of Hispanic descent. They said he told illegal workers to do things such as hide their identification in their boots and not tell anyone else which workers did or did not have legal authorization to work in the U.S.Earlier in the week, a prosecution witness testified that Pereyra-Gabino knew she was an illegal immigrant but told her how to obtain documents to work at the Swift plant. She taped the conversation with him as she cooperated with the federal investigation. " Link to article.

IMMIGRATION DETENTION: 4 day series on Medical Care

Careless Detention is a four-day series beginning in today's (May 11, 2008) Washington Post, on the care of detainees in immigration detention.
See also related 60 Minutes, Detention in America, May 11, 2008.

"Some 33,000 people are crammed into these overcrowded compounds on a given day, waiting to be deported or for a judge to let them stay here. The medical neglect they endure is part of the hidden human cost of increasingly strict policies in the post-Sept. 11 United States and a lack of preparation for the impact of those policies. The detainees have less access to lawyers than convicted murderers in maximum-security prisons and some have fewer comforts than al-Qaeda terrorism suspects held at Guantanamo Bay, Cuba."

"But they are not terrorists. Most are working-class men and women or indigent laborers who made mistakes that seem to pose no threat to national security: a Salvadoran who bought drugs in his 20th year of poverty in Los Angeles; a U.S. legal U.S. resident from Mexico who took $50 for driving two undocumented day laborers into a border city. Or they are waiting for political asylum from danger in their own countries: a Somalian without a valid visa trying to prove she would be killed had she remained in her village; a journalist who fled Congo out of fear for his life, worked as a limousine driver and fathered six American children, but never was able to get the asylum he sought.

The most vulnerable detainees, the physically sick and the mentally ill, are sometimes denied the proper treatment to which they are entitled by law and regulation. They are locked in a world of slow care, poor care and no care, with panic and coverups among employees watching it happen, according to a Post investigation.

The investigation found a hidden world of flawed medical judgments, faulty administrative practices, neglectful guards, ill-trained technicians, sloppy record-keeping, lost medical files and dangerous staff shortages. It is also a world increasingly run by high-priced private contractors. There is evidence that infectious diseases, including tuberculosis and chicken pox, are spreading inside the centers. "

INTERROGATION BY COAST GUARD: Not custodial

The case of USA v Fleet Management, 2008 U.S. Dist. LEXIS 37161 (E.D. Pa. 2008), addresses the government's failure to advise of Miranda warnings during an "administrative"proceeding which the defendants argued was a criminal investigation. The fact that the crew member needed an interpreter is likely a common scenario. Question: Was the agency subject to any regulation, which would have required obtaining a qualified interpreter during their investigation?

Defendant Dyachenko moved to suppress his statements as having been made in violation of Miranda and otherwise involuntary. "The only evidence regarding the circumstances of Dyachenko's questioning was provided by the Government, as Dyachenko chose not to testify at the hearing. Dyachenko was apparently summoned to the officers' mess room by the Coast Guard with the assistance of Captain Grewal. Four individuals were present at the interview -- Chief Jones, CWO Nay, EPA Agent Burgess and CGIS Agent Lukowiak. As Nay testified, Dyachenko stated at the beginning of the interview that his heart hurt and that he needed an interpreter, but he nevertheless stated that he was fine to continue with the interview. ....Dyachenko stated he would stop the interview if he failed to understand any questions, felt confused, or had trouble comprehending the questions in English. Dyachenko said that if he had trouble understanding English, he would want to perform the interview though an interpreter, but at this time he wanted to proceed...... Moreover, the agents told Dyachenko at the outset that if he felt like he needed to stop, they would stop.

As Nay testified, from the start of the interview, Dyachenko was standoffish, and appeared angry and annoyed as the interview proceeded. Indeed, both Nay and Jones indicated that at one point, Dyachenko told the agents to stop taking notes, saying that he did not want anything written down... Significantly, Dyachenko ultimately left the interview on his own volition, refusing to answer any more questions. ... He also refused to give Jones a notebook that he was carrying in his pocket, which contained information about waste oil tank levels. ...

Dyachenko argues in his brief that the inspection that the Coast Guard conducted in this case was far from a "routine" inspection, and that he was in custody during his interview. In support of this argument, he first notes that he was summoned for questioning after the Coast Guard received a "hot tip from a disgruntled former employee" that oil had been dumped from the Ship and that Dyachenko had been involved. ....Second, he concedes that he left the interview, but argues that there was no indication that he was free to leave during the heart of the interrogation. Third, he notes that he was not told at the outset of the interview either that he was not under arrest or that he was the target of an investigation and thus, he implies, he could not make an informed decision as to whether or not to provide information. Finally, he contends in his brief that (1) the investigators asked confrontational and intimidating questions; (2) he was confronted with the oil record book and sounding book and asked to explain them; (3) Chief Jones threatened him with criminal sanctions for impeding an investigation if he did not turn over his personal property; and (4) in the end, in ill health and without an interpreter, he remained for questioning "out of fear of reprisal for non-compliance and potentially impeding a [United States Coast Guard] investigation."

In many respects, Dyachenko's characterization of the questioning has no support in the record. Most notably, the undisputed hearing testimony was that the tone of his interview, like all of the interviews that day, was professional, and the investigators did not use hostile tones or raised voices. Although Dyachenko was, in fact, shown the Ship's books and questioned about them, CWO Nay credibly testified that the sole purpose of the interviews was simply to determine whether there had been discharges from the Ship and, if so, who knew about them. Jones specifically explained, and we credit, that he showed Dyachenko the books because "he had questions as [to] why tank levels had dropped and why they didn't match up with what the tank sounding log was reflecting and to see if there was any explanation for those drops." As Jones testified, the aim of the investigation was to find out if there had been any regulatory violations on the Ship.

Furthermore, contrary to Dyachenko's assertion, the evidence is not that Jones threatened Dyachenko with criminal sanctions, but only that Jones told him in the engine room after the interview was over that Dyachenko would be impeding a Coast Guard investigation if he did not provide them with his diaries. Finally, while Dyachenko argues that there was no indication that he was free to leave during the heart of the questioning, there is no evidence that he was not free to leave during that time. Moreover, the fact that he did leave the interview before the questioning concluded certainly supports a finding that he was free to leave at any time,

CULTURAL DEFENSES: No violation of Religious Freedom Restoration Act

In USA v Friday, the Tenth Circuit reversed the dismissal of a criminal indictment against the defendant. USA v Friday, (10th Cir. May 9, 2008).

" Winslow Friday, a member of the Northern Arapaho Tribe of Wyoming, shot a bald eagle for use in the tribe’s traditional religious ceremony, the Sun Dance. He was charged under federal law with shooting an eagle without a permit, which is forbidden by the Bald and Golden Eagle Protection Act. Mr. Friday responded that the Religious Freedom Restoration Act precludes the government from prosecuting him. After an evidentiary hearing, the district court agreed and dismissed the indictment. We disagree, concluding that the Eagle Act and its regulations are the least restrictive means of pursuing the government’s compelling interest in preserving the bald eagle. We therefore reverse and remand the prosecution for trial. "

CONFERENCES: Fifth Annual Immigration Law and Policy

For more information: Melissa Williams, Media Relations OfficerOffice: mwilliams@cliniclegal.org
On May 20, Georgetown University Law Center, the Migration Policy Institute and the Catholic Legal Immigration Network Inc. will co-sponsor a law and policy conference focusing on the top immigration issues of the day. The conference, in its 5th year, will examine the immigration debate in light of the presidential election and the immigration challenges the new administration will confront. What:Fifth Annual Immigration Law and Policy Conference“2008 and Beyond: Immigration Challenges the New Administration Will Confront”
Time and Date:9 a.m. to 5 p.m., Tuesday, May 20, 2008
Place:Georgetown University Law CenterBernard P. McDonough Hall Hart Auditorium600 New Jersey Avenue N.W.
Keynote Speaker:
Sen. Leticia Van de Putte (D-TX), the immediate past president of the National Conference of State Legislatures (NCSL), co-founded NCSL’s Executive Task Force on Immigration in the States. Sen.Van de Putte, now serving her fourth term as a Texas state senator, is former president of the National Hispanic Caucus of State Legislators. She is a strong advocate for immigrants, children, veterans, improved access to health care, quality education, and economic development.
Schedule
9:00 a.m. Opening Speaker: Texas State Sen. Leticia Van de Putte, immediate past president of National Conference of State Legislatures
10:00 a.m. Immigration, the Presidential Campaign Platforms, and the 2008 Elections Moderator: Doris Meissner, MPI Senior FellowSpeakers: Brian Nienaber, Vice President, Tarrance Group Frank Sharry, Executive Director, America's VoiceArturo Vargas, Executive Director, NALEO
11:30 a.m. Nationality, Citizenship and Immigration PolicyModerator: Donald Kerwin, Executive Director, CLINICSpeakers: T. Alexander Aleinikoff, Dean of Georgetown University Law CenterMargaret D. Stock, United States Military Academy, West Point
12:30-1:15 p.m. Lunch
1:15-1:45 p.m. Plenary Speaker: Jonathan Scharfen, Acting Director, U.S.Citizenship and Immigration Services (USCIS), Department of Homeland Security
1:45 - 2:45 p.m. The States Step In: the Devolution of Immigration PolicyModerator: Michael Fix, MPI Vice PresidentSpeakers: Muzaffar Chishti, Director, MPI Office at New York University School of LawCristina Rodríguez, Associate Professor, NYU School of Law
2:45- 3:45 p.m. DHS Five Years LaterModerator: Andrew Schoenholtz, Deputy Director of Georgetown’s Institute for the Study of International MigrationSpeakers: Stewart A. Baker, Assistant Secretary for Policy, Department of Homeland SecurityCharles H. Kuck, President Elect, American Immigration Lawyers Association Lisa Powell, Chief Investigative Counsel of the Senate Subcommittee on Oversight of Government Management 4:00-5:00 p.m. Breakout Sessions

JUROR REQUIRING INTERPRETER: No Violation to Excuse

The Florida Supreme Court in Woodel v. State, 2008 Fla. LEXIS 754 (May 1, 2008), found no error in excusing a juror who would have required an interpreter for deliberations.

The United States Supreme Court has expressly held that states may prescribe "relevant qualifications for their jurors" so long as this is supported by a significant state interest.

" Woodel points out that there is no statutory requirement under Florida law mandating that a juror must be proficient in English in order to serve on a jury. " ...... While Woodel is correct that a Florida statute does not expressly address this issue, section 40.013(6), Florida Statutes (2005), states that a person is to be excused from jury service "upon a showing of hardship, extreme inconvenience, or public necessity." " Here, the trial judge recognized that she was able to appoint an interpreter to assist in the voir dire and the trial proceedings, but that permitting the interpreter to assist during jury deliberations would contravene the crucial state interest in protecting the sanctity of the jury deliberations, which is a necessity. In Dilorenzo v. State, 711 So. 2d 1362 (Fla. 4th DCA 1998), the Fourth District Court of Appeal held that permitting the use of an interpreter during jury deliberations constituted fundamental error because "[u]nder the common law of this jurisdiction the sanctity of the jury room has been so zealously protected that the introduction or intrusion therein of an unauthorized person during jury deliberations has been regarded as fundamental error requiring either a mistrial or a new trial."

" We find no error in the trial court's ruling to follow Dilorenzo. Moreover, a trial court has inherent power to assure due process in the trial of a case by protecting the integrity of jury deliberations. Numerous problems would occur if trial courts permitted the use of an interpreter in jury deliberations, even if only one juror required such special accommodations. Jury deliberations are to be exchanges of analysis and beliefs based upon lawfully admitted evidence by discussions among only the sworn jurors and are protected against influences extraneous to the deliberations by those sworn jurors. The trial court's ruling on this issue adhered to this fundamental principal."

VIENNA CONVENTION: How to raise claims for Violations

Ask the Expert: Mark Warren on Consular Notification/Vienna Convention after Medellin explains that Medellin v Texas does not prevent claims for violation of the Vienna Convention on Consular Notification. May 6, 2008.

IMMIGRATION DETENTION: Deaths while in Detention, Few Details

The New York Times today features deaths in immigration in four separate pieces. Few Details on Immigrants who Died in US Custody.
Family Struggled in Vain to Help Suffering Detainee
A Government Statement on Detainee Deaths
Immigration Agency’s List of Deaths in Custody

In the past three years, sixty-six immigrants have died in immigration detention.

Regarding the death of a Guinea immigrant Mr. Bah, the documents detail how he was treated by guards and government employees: shackled and pinned to the floor of the medical unit as he moaned and vomited, then left in a disciplinary cell for more than 13 hours, despite repeated notations that he was unresponsive and intermittently foaming at the mouth. Mr. Bah had lived in New York for a decade, surrounded by a large circle of friends and relatives. The extravagant gowns he sewed to support his wife and children in West Africa were on display in a Manhattan boutique. But he died in a sequestered system where questions about what had happened to him, or even his whereabouts, were met with silence. "


In a separate piece, Family Struggled in Vain to Help Suffering Detainee
"The four sons of Maya Nand, 56, are still haunted by the last collect call he made to them from an immigration detention center in Eloy, Ariz. “This was the first time we ever heard our dad cry,” said one, Jay Ashis Nand, 25. “He said, ‘Son, if you don’t get me out of here today, I’m going to die.’ ” Mr. Nand, a legal immigrant from Fiji who was diabetic, had been calling his family with mounting desperation over a 10-day period, the sons said.

"It was the rejection of his citizenship application, because of a 2002 misdemeanor conviction for domestic violence, that apparently prompted his arrest. The misdemeanor was the lone blot on his record, his sons said, and had been resolved to the court’s satisfaction with a year of anger management classes. But immigration authorities considered it grounds for deportation. And instead of summoning him by letter to immigration court, where he could have fought to stay in the United States, immigration agents arrested him without warning and shipped him to detention in another state. "

FEDERAL SENTENCING: Cost of incarceration for Illegal Reentry

The Ninth Circuit has ruled that the cost of imprisonment is not an appropriate factor in fashioning a defendant's sentence pursuant to 18 USC 3553. In United States v Tapia-Romero the defendant was sentenced for illegal reentry 18 USC 1326. According to a 2006 report, "Over the past decade, the number of immigration offenses sentenced in the federal courts has quintupled. In Fiscal Year 1994, a total of 2,338 immigration offenses were sentenced under the federal sentencing guidelines system, which comprised 5.9% of all cases sentenced5. As of Fiscal Year 2004, the number of immigration offenses sentenced was 15,717, comprising 22.5% of all cases sentenced under the federal sentencing guidelines6. Post-Booker 2005 data show that from January 12, 2005 through November 1, 2005, 23.1 percent of all cases sentenced under the guidelines were immigration offenses. "

ASK THE EXPERT: Marcia Shein on Cultural Issues and Mitigation

Reposted May 1, 2008




Marcia Shein
Link to her website.
Prior to becoming an attorney, Ms. Shein was a federal probation officer. She holds a Masters degree in Counseling, and then started a consulting business for attorneys, aware that attorneys were often not certain or experienced in how to present sentencing mitigation evidence. She frequently lectures at bar conventions, and has written many articles and prepared hundreds of sentencing mitigation memorandums and pre sentence report objections for her own practice and for other attorneys using the inidividualized circumstances of each defendant to achieve favorable results. She is a nationally recognized sentencing and post conviction mitigation attorney and a life member of NACDL.


I interviewed attorney Marcia Shein, to discuss the impact of recent Supreme Court decisions on presenting evidence of a defedant's culture at the time of sentencing. Here is our Q&A:


How would you best describe the new approach a defense attorney now should take in preparing for sentencing, post Gall and Kimbrough?

In the past sentencing mitigation was founded on "extraordinary circumstances", or outside the "heartland" analysis. Since the Supreme Court decision in Gall the standard is now "reasonableness". Such a standard may for a while be a moving target but the guidelines will still have to be considered. Although the guidelines are not presumptively reasonable, the guidelines still has considerable application before any departure analysis.

The departure analysis should begin with what the guidelines are and attorneys should still argue all guideline adjustments. Then use the guideline departure sections to argue those factors not adequately considered by the sentencing commission that are now advisory. These departures are no longer subject to "outside the heartland" analysis. This gives you room for a number of adjustment options as well as other factors for departure included in 18 USC 3553.

Once you reach these technical decisions then plug in case law supporting what was once the heartland departure and argue this standard is higher than needed in the circumstance you are presenting on behalf of a particular client. Argue that the reasonableness of such departures no longer must be extraordinary but can be ordinary in combination with the offender and offense characteristics

What types of "cultural evidence"do you believe will be the most persuasive?

At this point it is helpful to address the uniqueness of cultural differences that enhance the need for departure. For example there is no conspiracy charge in most if not all free countries so many foreigners never understand the law and why they are in trouble in a case in which no drugs were seized.

Cultural attitudes toward women are also unique in certain environments. Women are often subserviant to men in most cultures and likely would do what they ask without question or awareness of consequences for assisting in a crime. For example, Chinese women are often exploited without regard to their status due to the work force in China dominated by men.

There are also religious differences and immigration consequences as collateral punishment to whatever the sentence is to be imposed including physical abuse, unemployement, family rejection and other consequences if either a man or woman returns to there homeland with the disgrace of committing a crime. This is particularly true for crimes involving violence, rape or sexual abuse. These collateral consequences are not contemplated by the guidelines or any other sentencing considerations and form a basis for departure from any proposed guideline sentence pursuant to USSG 5K2.0.

How likely is it that defense counsel will need actual experts, or can the defense attorney use material that is in the public domaine, such as the internet?

Many courts presume foreigners understand or should understand our laws. Experts who might be able to sensitize a sentencing judge to a defendant's failure to comprehend the significance of American law is a case in which an expert might be particularly helpful. However, it is always important to make sure that the expert is fully aware of the facts of your client's case, including your client's background, education and social group within the community. An expert who recites stereotypes but has not taken the time to get to know the facts of your client's case might be ignored by the Court.

How can a defense attorney overcome a prosecutor's cynicism about the significance of cultural evidence at sentencing, and how important is it to persuade the prosecutor as well?

Few prosecutors are sensitive to these issues, but sometimes you get lucky. Although it will not keep your client from being convicted, it might motivate the prosecutor to reduce the charging exposure or sentencing mitigation issues you can raise.

IMMIGRATION DETENTION: Law Suit Filed re Lack of Regulations

The New York Times reports on May 1, 2008 that a new federal law suit has been filed against the Department of Homeland Security, demanding that the agency issue legally enforceable regulations for its detention centers. No enforceable standards now exist for the immigrant detention system.

According to the Times, the lawsuit, filed by the immigrants and advocates , contends that the lack of such regulations puts hundreds of thousands of people a year in substandard and inconsistent conditions while the government decides whether to deport them, leaving them subject to inadequate medical care and abuse.

The Times reports that the " suit is based on the Administrative Procedures Act, which allows courts to force agencies to respond to rulemaking petitions. In January 2007, the plaintiffs filed a petition requesting that Homeland Security make its detention standards enforceable, but have received no response. Homeland Security is one of the largest jailers in the world, “but it behaves like a lawless local sheriff,” said Paromita Shah, associate director of the National Immigration Project of the National Lawyers Guild, one of the plaintiffs in the suit.

Other plaintiffs include Families for Freedom, a New York-based advocacy group for immigrant detainees; Rafiu Abimbola, a Nigerian who was detained for more than six years while seeking asylum; and Camal Marchabeyoglu, now a legal permanent resident living in Corona, Calif.
“The refusal to adopt comprehensive, binding regulations has contributed to a system in which thousands of immigration detainees are routinely denied necessary medical care, visitation, legal materials or functioning telephones,” Ms. Shah said.