Federal First Offender Act & Deportation

While reviewing recent law concerning deportation, Darren Chaker found the Ninth Circuit Court of Appeals has held that an alien whose offense would have qualified for treatment under the Federal First Offender Act (“FFOA”), but who was convicted and had his conviction expunged under state or foreign law, may not be removed on account of that offense. See Dillingham v. INS, 267 F.3d 996 (9th Cir. 2001); Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000). To qualify for treatment under the FFOA, the defendant must (1) have been found guilty of an offense described in section 404 of the Controlled Substances Act (“CSA”), 21 U.S.C. § 844; (2) have not, prior to the commission of such an offense, been convicted of violating a federal or state law relating to controlled substances; and (3) have not previously been accorded first offender treatment under any law. See 18 U.S.C. § 3607(a); Cardenas-Uriarte v. INS, 227 F.3d 1132, 1136 (9th Cir. 2000).

A. Expungement Under State or Foreign Law

The alien’s prior conviction must have already been expunged pursuant to the state or foreign expungement statute; the possibility that the alien may request and have his conviction expunged in the future is not sufficient to avoid the consequences of removal. See Chavez-Perez v. Ashcroft, 386 F.3d 1284, 1292-93 (9th Cir. 2004).

The state or foreign statute under which the conviction was expunged does not have to be an identical procedural counterpart to the FFOA. See Garberding v. INS, 30 F.3d 1187, 1190-1191 (9th Cir. 1994). See also Lujan-Armendariz, 222 F.3d at 738 n.18 (“[R]elief does not depend on whether or not the state rehabilitative statute is best understood as allowing for ‘vacaturs,’ ‘set-asides,’ ‘deferred adjudications,’ or some other procedure.”). The Ninth Circuit has recognized expungements for FFOA purposes where the state court “has entered an order pursuant to a state rehabilitative statute under which the criminal proceedings have been deferred pending successful completion of probation or the proceedings have been or will be dismissed after probation.” Lujan-Armendariz, 222 F.3d at 738 n. 18 (emphasis in original) (quoting Matter of Manrique, 21 I&N Dec. 58, 64 (BIA 1995)). The Ninth Circuit has not yet decided whether an alien who has received a court order deferring adjudication, but has not yet had his proceedings expunged because he has not completed his term of probation, is eligible for FFOA treatment. See id. at 746 n.28; Chavez-Perez, 386 F.3d at 1293.

B. Offenses Described in Section 404 of the Controlled Substances Act

Section 404 of the CSA provides that it is “unlawful for any person knowingly or intentionally to possess a controlled substance . . . .” 21 U.S.C. § 844(a). Any state or foreign possession of a controlled substances offenses, such as those set forth in sections 11350(a) and 1137 of the California Health and Safety Code (“CHSC”), are described in section 404 of the CSA and are therefore potentially eligible for FFOA treatment.

1. Possession of Drug Paraphernalia

The Ninth Circuit has recognized that “the plain language of the statute suggests that possession of drug paraphernalia should not be included as an offense described in section 844,” since paraphernalia is not a controlled substance. Cardenas-Uriarte, 227F.3d at 1137. Nonetheless, in Cardenas-Uriarte, the Ninth Circuit determined that theapplication of the plain meaning of the statute in that instance would lead to both an absurd result and frustrate congressional intent. See id. The petitioner had initially been charged with two counts of possession, but had pleaded guilty to the lesser offense of possession of drug paraphernalia. Id. The Ninth Circuit reasoned that refusing to allow the petitioner’s offense to receive treatment under the FFOA would lead to an absurd result since the petitioner would have been eligible had he refused to plea guilty and been convicted, as initially charged, of the graver offense of possession. See id. The Ninth Circuit further determined that applying the plain meaning of the FFOA would frustrate congressional intent:

Congress intended to allow those convicted of the least serious type of drug offenses to qualify under the Act. Congress would never have considered including possession of drug paraphernalia under this statute because no federal statute covers the crime of possession of drug paraphernalia. Where possession of drug paraphernalia is a less serious offense than simple possession of a controlled substance, therefore, congressional intent indicates that it should be included under the Act. See id. The Ninth Circuit therefore held that the petitioner’s conviction for possession of drug paraphernalia qualified for treatment under the FFOA.

2. Use or Being Under the Influence

Nor is use or being under the influence an offense described in the plain language of section 404 of the CSA. See 21 U.S.C. 844. The Ninth Circuit has not yet determined whether use or  FFOA. See Aguiluz-Arellano v. Gonzales, 446 F.3d 980, 984 (9th Cir. 2006) (distinguishing its holding that the petitioner’s use or being under the influence was not eligible for FFOA treatment as a result of his prior controlled substance conviction from the Board’s determination that the FFOA only applies to possession of a controlled substance, not to use or being under the influence offenses).

Extending the Ninth Circuit’s reasoning in Cardenas-Uriarte, however, may be warranted if the application of the plain meaning of the statute frustrates congressional intent. In Lujan-Armendariz, 222 F.3d at 734-35, the Ninth Circuit described the FFOA as “a limited federal rehabilitative statute that permits first-time drug offenders who commit the least serious type of drug offense to avoid the drastic consequences which typically follow a finding of guilt in drug cases.” Congressional intent may therefore be frustrated if the respondent is a first-time offender since “[d]rug use has generally been considered a less serious crime than possession.” Flores-Arellano v. INS, 5 F.3d 360, 363 n.5 (9th Cir. 1993). See also Medina v. Ashcroft, 393 F.3d 1063, 1066 (9th Cir. 2005). Further, as in Cardenas-Uriarte, federal law does not penalize use or being under the influence of a controlled substance. See 21 U.S.C. § 801 et seq.

Hypothetical Questions in California Decided

Darren Chaker reports in People v. Vang, Hypothetical questions posed to an expert must be based on the evidence; the questioner is not required to "disguise" the fact that such a question is based on the case evidence. Appellant and his codefendants were convicted of assault by means of force likely to inflict great bodily injury. The jury also found a gang enhancement true (Pen. Code, §186.22 subd. (b)(1)). Relying on People v. Killebrew (2002) 103 Cal.App.4th 644, the Court of Appeal found the prosecutor is prohibited from asking hypothetical questions using facts which closely track the case evidence. The Supreme Court disagreed, finding a hypothetical question posed to an expert must be rooted in the case evidence. A hypothetical question which is not based on the evidence "is irrelevant and of no help to the jury." "To the extent that Killebrew . . . was correct in prohibiting expert testimony regarding whether the specific defendants acted for a gang reason," the problem is not that such an opinion embraces an ultimate issue in the case, but that an expert's opinion regarding the defendant's guilt is of no assistance to the trier of fact, which is competent to weigh the evidence and reach a conclusion regarding guilt or innocence. The use of hypothetical questions based on the case evidence do not improperly invade the province of the jury, which still must decide whether to credit the expert's opinion and determine whether the facts used to construct the hypothetical are the actual facts based on the evidence. The trial court did not err in allowing the prosecution to pose hypothetical questions based on the case evidence. 
  

Texas Expunction

Darren Chaker notes that most people are not aware a simple citation (ticket) is construed as an arrest. Atwater v. City of Lago Vista, 533 U.S. 924,121 S. Ct. 2540.  In Texas, as with most states, only a person who was arrested may obtain expunction of his records, because an arrest is a threshold requirement under the expunction statute. Ex parte S.C. (App. 14 Dist. 2009) 305 S.W.3d 258. In T.C.R. v. Bell County District Attorney’sOffice, 305 S.W.3d 661, “as a matter of first impression, a person charged with a felony offense is eligible for expunction, subject to other requirements, where the charging instrument has been dismissed or quashed, and the limitations period for the offense has expired.” Likewise, Texas law expands expunction to include any arrest, thus misdemeanors are included.

Once an arrest is established, the next criteria a Petitioner must meet is to demonstrate the charge was dismissed. Texas expungement, also known as expunction, allows records to be permanently sealed by the court and physically destroyed by the court. It may not be a big issue with most people, however if you seek security clearance, are in a highly scrutinized profession, or simply want to deny being arrested on an employment application then petitioning the court to expunge records is critical.

Viewpoint Discrimination Strikes Down California Law

Darren Chaker of Beverly Hills, handled Chaker v. Crogan, 428 F.3d 1215 C.A.9 (Cal.),2005, Cert. denied, 547 U.S. 1128, 126 S.Ct. 2023, that invalidated Penal Code section 148.6 on First Amendment grounds. While handling this case for seven of ten year life span, Darren overruled the California Supreme Court's unanimous decision in People v. Stanistreet, 127 Cal.Rptr.2d 633. In short, it is a very rare occasion a minor misdemeanor is taken through the state and federal court system, and even rarer a unanimous state supreme court is overruled on such grounds.
  

When decided, Chaker v. Crogan was also used to strike down Nevada's analogous statute forcing the legislature to rewrite the law, and used as the backbone authority in Gibson v. City of Kirkland, 2009 WL 564703, (W.D.Wash. Mar 03, 2009). The case continues to be cited as a leading case on viewpoint discrimination.

ACLU Jason Staham and Darren Chaker

Darren Chaker and Jason Statham have been friends for years since Darren worked for an entertainment law firm. When ACLU (Los Angeles) Director Ramona Ripston asked Darren for assistance for an upcoming celbrity auction, he was able to obtain numerous items to assist the ALCU of Southern California after driving to a set location in San Diego and back to Los Angeles just in time for the auction. It is always a pleasure assisting organizations such as the ACLU who helps people which would otherwise not have a voice in the courts.

Darren Chaker Thanked by California Legislature

Darren Chaker was recently thanked for his participation on a potential privacy law. Enforcing existing privacy laws are important, but the introduction of additional privacy laws are significant too since technology evolves. This is why Assemblymember Henry Perea is sponsoring a cutting edge privacy law. Having nearly a decade in the legal field, including legal research, computer security, and similar history provides additional insight on California privacy law.