Saturday, June 25, 2005

Proving prior convictions, judges not allowed to look at police reports and other hearsay.

This is a continuing post on the impact of Shepherd v. United States, a case recently decided by the United States Supreme Court. The Shepherd decision states that a judge must now look only at the fact of conviction, the plea form, the transcript of the plea hearing and other assented to or admitted facts to determine whether a prior conviction is an aggravated felony within the Armed Career Criminal Act.
This case has tremendous impact in a variety of contexts.
When challenging a prior, Shepherd and its reasoning should be used to sharply limit the record that the fact finder can consider to establish the prior or its 'aggravated' nature or quality.

For example, suppose a client's prior indicates that he had pleaded guilty in Calfornia to Transportation of Methamphetamine, in violation of California H & S 11379. The plea form states the charge as "H & S 11379." The plea colloquy is silent as to whether the client plead guilty to Transporting Meth, or simply Offering to Transport Meth (which is also a prong of H & S 11379). The client, a green card holder, is picked up by INS who wants to deport him for being convicted of a drug trafficking offense.

A diligent immigration lawyer could move to exclude all police reports or prelim transcripts (or transcripts of other contested hearings) relating to the prior from evidence before the immigration judge. The immigration lawyer would then point out the ambiguity, i.e. the client could have been convicted of just offering to transport instead of transporting (mere offering not being deportable), and that the doubt should be resolved in favor of the client, and non-removal.

Looking forward, diligent defense counsel should totally eliminate the use of "slow pleas" or pleas that incorporate other documents in the pleas' allocution or factual basis. Counsel should no longer stipulate to any factual basis, stipulate to the incorporation of police reports, or stipulate to the incorporation of ANY other document into the plea colloquy or allocution. The language in plea agreements should mimic the statute verbatim. However, extra language should not be included without careful thought as to immigration, drug conviction, and other consequences.

See Shepherd:

Chip Venie is a private criminal defense attorney in San Diego, California. He is admitted to practice before state and federal courts in California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (619) 235-8300, or


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