Cooner v. State

• Decision Date: 01 June 2018
• Docket Number: CR–16–1076
• Parties: Douglas Howard COONER v. STATE of Alabama
• Court: Alabama Court of Criminal Appeals

272 So.3d 206

Douglas Howard COONER

v.STATE of Alabama

CR–16–1076

Court of Criminal Appeals of Alabama.

June 1, 2018

Rehearing Denied August 3, 2018

Certiorari Denied March 13, 2019

Alabama Supreme Court 1171055

Christopher Daniel, Birmingham, for appellant,

Steve Marshall, atty. gen., and Kristi O. Wilkerson, asst. atty. gen., for appellee.

JOINER, Judge.

Douglas Howard Cooner was convicted of three counts of second-degree theft of property, see § 13A–8–4, Ala. Code 1975, two counts of first-degree perjury, see § 13A–10–101, Ala. Code 1975, one count of third-degree perjury, see § 13A–10–103, Ala. Code 1975, and three counts of unauthorized practice of law, see § 34–3–1, Ala. Code 1975.¹ For the second-degree-theft-of-property and first-degree-perjury convictions, Cooner was sentenced to five years' imprisonment; those sentences were split and Cooner was ordered to serve 60 days in the Jefferson County jail followed by two years' probation. For the third-degree-perjury and unauthorized-practice-of-law convictions, Cooner was sentenced to serve six months' in the Jefferson County jail; those sentences were suspended. The circuit court imposed all appropriate fines and fees.²

Facts and Procedural History

The State's evidence at trial tended to show (1) that Cooner committed second-degree theft-of-property when he knowingly obtained by deception control over between $1,500 and $2,500 belonging to Mary Mwai with the intent to deprive her of her property; when he knowingly obtained by deception control over $2,400 belonging to Cesar Perez–Martinez and Angelica Romo–Duarte with the intent to deprive them of their property; and when he knowingly obtained by deception control over $2,400 belonging to Victor Huerta–Cazares and Esmeralda Penaflor–Nunez with the intent to deprive them of their property and (2) that Cooner committed first-degree perjury when he knowingly swore falsely in applications for asylum for Perez–Martinez and Huerta–Cazares when he asserted that they faced gang-related threats in their home country of Mexico, and those false statements were material to the applications for asylum. Specifically, the evidence showed the following.

Mary Mwai hired Cooner, an immigration attorney, to assist her in obtaining legal status after she married a United States citizen. Mwai testified that she mainly dealt with a woman named Adela, who was one of Cooner's employees. On August 5, 2014, Mwai paid Cooner $1,300.³ Mwai testified that she later paid Cooner $1,500 for "immigration" and that she was told that Cooner's office did not give receipts for that specific transaction but that she would receive a receipt in the mail. Two weeks after Mwai paid the $1,500, Adela called Mwai and told her to bring $1,500 to Cooner's office, once again for "immigration." Mwai went to Cooner's office, where both Cooner and Adela claimed that Mwai had never submitted the initial $1,500 "immigration" payment. Cooner told Mwai she needed to pay $1,500 in order for him to proceed with her case. Mwai testified that she eventually retained a different attorney and that her case progressed. Mwai requested a refund from Cooner but never received one.

Cesar Perez–Martinez and his wife, Angelica Romo–Duarte, hired Cooner to assist them in obtaining legal status in the United States; they each testified that at no time were either of them seeking asylum.

On July 28, 2014, they met with Cooner, signed an attorney-client representation agreement, and paid a $1,500 retainer.⁴ Cooner estimated that the entire case would cost between $5,000 and $6,000. After signing the agreement, Perez–Martinez and Romo–Duarte dealt mostly with a woman named "Coco,"⁵ one of Cooner's employees. Coco told Perez–Martinez and Romo–Duarte that the more money they paid, the more quickly their case would progress.

Romo–Duarte testified that they received a notice from the United States government directing them to submit their fingerprints to the Department of Homeland Security ("DHS"). After doing so, Romo–Duarte contacted Coco to inquire about the next step in their case. Coco told Romo–Duarte to pay a $400 legal fee, which she and Perez–Martinez paid on September 10, 2014.⁶ Romo–Duarte testified that this fee was not specified in the agreement. On January 23, 2015, Perez–Martinez and Romo–Duarte went to Cooner's office to pay him $500.⁷ While there, Romo–Duarte spoke with Cooner, who told her that "everything was good because we got the fingerprints and all this stuff and everything will be okay." (R. 376.)

Victor Huerta–Cazares and his wife, Esmeralda Penaflor–Nunez, hired Cooner to assist them in obtaining green cards; Huerta–Cazares testified that at no time were he or Penaflor–Nunez seeking asylum. On February 4, 2014, they signed an attorney-client representation agreement and paid a $1,500 retainer fee.⁸ After signing the agreement, Huerta–Cazares and Penaflor–Nunez dealt mostly with Coco. Huerta–Cazares testified that someone from Cooner's office "would give us a call to go there and go see them and make a payment for something."⁹ (C. 320.) With respect to documents Cooner filed on his behalf, Huerta–Cazares testified that the office staff asked him only to confirm his name and address and to sign the documents. Huerta–Cazares stated, "I never went through them with nobody. I said I went and signed where they told me to sign." (R. 323.)

The State introduced the asylum applications Cooner had prepared for Perez–Martinez, Romo–Duarte, Penaflor–Nunez, and Huerta–Cazares as portions of its Exhibits 1, 2, 6, and 7, respectively. Each application indicated that the applicant was seeking asylum or the withholding of removal based on political opinion, membership in a particular social group, and torture convention. A box marked "Yes" appeared in each application under the following questions: "Have you, your family, or close friends or colleagues ever experienced harm or mistreatment or threats in the past by anyone?";¹⁰ "Do you fear harm or mistreatment if you return to your home country?"; and "Are you afraid of being subjected to torture in your home country or any other country to which you may be returned?" (C. 301–02; 521–22; 585–86; 615–16.) The following language appeared in each application:

"I was threatened by gang members in my neighborhood to sell drugs and commit crimes or my family and I would pay a horrible price.

"....

"When I left for the United States they told family members that I could not hide and sooner or later I would be back and they would get me. I believe they would seek revenge, even though I left years ago. In Mexican small villages everyone knows everyone and the police are corrupt and don't help the people.

"....

"I fear the gang members in my hometown."

(C. 301–02; 521–22; 585–56; 615–16.) Perez–Martinez, Romo–Duarte, and Huerta–Cazares all testified that they did not express to Cooner or his employees any fear of gang members in their hometowns. Perez–Martinez, Romo–Duarte, and Huerta–Cazares each identified Cooner in court.

During Cooner's trial, Charles Kuck, an immigration attorney and professor of law at Emory University, testified as an expert in the field of immigration law. Kuck testified that all applicants seeking the protection of the United States must show that they fear persecution in their home country based upon their race, nationality, religion, political opinion, and/or being part of a socially visible group subject to persecution from either their government or a group their government cannot control. Kuck testified that an individual seeking asylum signs the application under penalty of perjury and stated, "You don't have to raise your right hand and swear. By signing it, you are saying that this information is true and correct." (R. 284–85.) Kuck explained "why it's a bad idea to file a petition for asylum where you know you have no grounds for a petition for asylum," stating:

"Well, if you file an application for asylum and you're not qualified for it, either because it's not one of the five grounds or you waited too long, it's longer than a year, you are going to be put into deportation proceedings. That is going to happen. It might take three years, but you will absolutely be put in deportation proceedings. And if you've been in the country illegally for 10 or 15 years or 5 or 8 years and you're in deportation proceedings, your chance of being deported is excellent, very, very high. You're looking at grant rates of asylum in immigration court in Atlanta^{[11 ]} between one and two percent. That means 1 to 2 percent of the people that apply for asylum is granted; 98 or 99 [percent] are going to be deported. So basically if you file for asylum and you really don't have a case, you're going to be deported. It's just a matter of time."

(R. 306–07.)

The State's evidence at trial also showed: (1) that Cooner committed third-degree perjury when he swore falsely during immigration proceedings associated with Perez–Martinez that he was an attorney in good standing and not subject to any order of any court suspending or disbarring him from practicing law and (2) that Cooner engaged in the unauthorized practice of law when he represented Perez–Martinez, Huerta–Cazares, and Mwai in immigration proceedings after the Supreme Court of Alabama affirmed the Alabama State Bar's order disbarring Cooner from the practice of law. Specifically, the evidence showed the following.

In his attestation to the immigration court in Perez–Martinez's case filed on September 18, 2014, Cooner stated that he was a member of the Puerto Rico Supreme Court Bar, that he was eligible to practice law, that he was a member in good standing, and that he was not subject to any order disbarring, suspending, or otherwise restricting him in the practice of law. The same was true in his representation of Huerta–Cazares and Mwai. Contrary to Cooner's attestation, however, the record indicates that the Alabama Supreme Court notified the Alabama State Bar ("the ASB") that,...