U.S. v. Yacoubian

• Decision Date: 11 May 1994
• Docket Number: No. 93-50322,93-50322
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Viken YACOUBIAN, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1

24 F.3d 1

29 Fed.R.Serv.3d 331

UNITED STATES of America, Plaintiff-Appellant, v. Viken YACOUBIAN, Defendant-Appellee.

No. 93-50322.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 4, 1994.

Decided May 11, 1994.

David V. Bernal, Office of Immigration Litigation, U.S. Dept. of Justice, Washington, DC, for plaintiff-appellant.

Peter A. Schey, Carlos Holguin, Law Offices of Schey & Holguin, Los Angeles, CA, for defendant-appellee.

Appeal from the United States District Court for the Central District of California.

Before: HALL, LEAVY, and FERNANDEZ, Circuit Judges.

Opinion by Judge FERNANDEZ.

FERNANDEZ, Circuit Judge:

At the request of Viken Yacoubian the district court found that because the Immigration & Naturalization Service instituted deportation proceedings against Yacoubian, it was in violation of the court's 1989 Judicial Recommendation Against Deportation ("JRAD") issued pursuant to 8 U.S.C. Sec. 1251(b) (1988). As a consequence, the court permanently enjoined the INS from initiating deportation proceedings against Yacoubian on the basis of his convictions under 18 U.S.C. Secs. 371, 844(d) and 26 U.S.C. Sec. 5861(d). The United States appealed. We determine that the district court misconstrued the scope, reach and effect of its JRAD order, so we reverse.

BACKGROUND FACTS

Yacoubian was born in Beirut, Lebanon on November 9, 1962 and entered the United States on August 28, 1976 with his mother and brother. On November 3, 1982, Yacoubian, along with four co-defendants, was indicted and charged with violations of 18 U.S.C. Sec. 371 (conspiracy to transport explosives for the purpose of injuring or intimidating a person or destroying property and conspiracy to knowingly or intentionally damage or destroy property by means of an explosive), 18 U.S.C. Sec. 844(d) (transportation of explosive materials) and 26 U.S.C. Sec. 5861(d) (possession of explosive materials). Yacoubian's indictment resulted from his participation in a plan to place an improvised explosive device containing dynamite in or near the offices of the Honorary Turkish Consul General in Philadelphia, Pennsylvania. As his part in the conspiracy he obtained a current foreign diplomatic list and transported a co-conspirator to the airport in Los Angeles, California. As he then knew, the co-conspirator was taking explosive components to the east coast for the purpose of carrying out the bombing. After a bench trial, Yacoubian was convicted on all three counts.

Yacoubian then sought a JRAD. Yacoubian's sentencing hearing was continued several times, but before he could be sentenced the court granted his motion for new trial. The government appealed that ruling, and we reversed and remanded for sentencing. On October 30, 1989, the district court sentenced Yacoubian to three years imprisonment, one year probation and 1,000 hours of community service. The court also granted Yacoubian's request for a JRAD under former 8 U.S.C. Sec. 1251(b), which allowed district courts to recommend against deporting an alien convicted of a crime of moral turpitude. The court issued an order which provided: "It is hereby recommended that the conviction of Viken Yacoubian on October 9th, 1984, for violation of 18 U.S.C. Sec. 371, 18 U.S.C. Sec. 844(d) and [26 U.S.C. Sec. 5861(d) ], shall not be used as a basis for deportation nor exclusion from this country."

Yacoubian began serving his sentence of incarceration on March 12, 1990 and continued to do so until December 16, 1991. In May, 1991, the INS placed a detainer on Yacoubian based on his convictions. Yacoubian presented the INS with a copy of the October, 1989 JRAD and the INS subsequently lifted the detainer. A few days after he was released from prison and entered the Gateway Community Treatment Center, Yacoubian was arrested on a new detainer issued by the INS and also based on his earlier convictions. Yacoubian sought a temporary restraining order. The district court granted Yacoubian's request.

On February 22, 1993, the district court held a hearing on Yacoubian's motion to enforce the JRAD. The INS argued that Yacoubian was deportable, notwithstanding the JRAD, because: (1) consistency demanded it, since one of his other co-conspirators had recently been ordered deported; (2) the destructive device offense was not a crime of moral turpitude and therefore was not covered by the JRAD; and (3) additionally, the destructive device offense formed the basis for deportation under another subsection of Sec. 1251, which was amended in 1990 to apply to aliens like Yacoubian. The INS also argued that, under the principle of exhaustion of administrative remedies, Yacoubian was obligated to contest the INS's actions during deportation proceedings before the immigration court, not before the district court.

The district court held that the INS had violated the JRAD and permanently enjoined the INS from initiating deportation proceedings against Yacoubian on any grounds based on the three convictions in this case. This appeal followed.

STANDARD OF REVIEW AND JURISDICTION

A. Standard of Review

This court reviews issues of law like jurisdiction, separation of powers, ex post facto and double jeopardy claims de novo. See generally United States v. McConney, 728 F.2d 1195, 1201-04 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). "A district court's grant of permanent injunctive relief is reviewed for an abuse of discretion or application of erroneous legal principles." Dexter v. Kirschner, 984 F.2d 979, 982 (9th Cir.1992).

B. Jurisdiction

In general, the district court had jurisdiction under 18 U.S.C. Sec. 3231 and 8 U.S.C. Sec. 1251(b).

In general, we have jurisdiction pursuant to 28 U.S.C. Sec. 1291. However, Yacoubian claims that we lack jurisdiction over all or a part of this appeal, and the INS claims that the district court (and ultimately this court) lacked jurisdiction to decide the merits of the issues leading to the violation order in the first place. ¹ Before considering the merits, we must address these threshold arguments.

1. The Notice of Appeal

Yacoubian contends that the INS did not file its Notice of Appeal from the district court's order in a timely manner. He argues that although the order itself was civil in nature, the dispositive factor under Fed.R.App.P.

4 (1993) is the nature of the case in which the order was granted, and because the order was issued "[i]n a criminal case", the INS was required to (but did not) file its Notice of Appeal within thirty days of the order's entry. Fed.R.App.P. 4(b). The INS counters that since it is appealing from a civil proceeding which occurred during the course of a criminal case, the sixty day time limit for appeals in civil cases under Fed.R.App.P. 4(a)(1) applies and its appeal (filed 56 days after entry of the order) is therefore timely. We agree that the civil time limit applies.

Based on the plain language of Rule 4 alone, Yacoubian does have an appealing argument. Rule 4 speaks of the time for appeal being based on the nature of the case, not the particular order involved. Rule 4(a) is entitled "Appeals in Civil Cases" and prescribes a 60 day time limit for appeals by the United States "[i]n a civil case", whereas Rule 4(b) contains the heading "Appeals in Criminal Cases" and states "[i]n a criminal case the notice of appeal ... by the INS ... shall be filed ... within thirty days after the entry of" the order appealed from. We have usually favored a plain reading of the rule and have refused to "rewrite [it] to make it apply to proceedings that are not within its clearly stated scope." In re Grand Jury Proceedings (Manges), 745 F.2d 1250, 1251 (9th Cir.1984) (refusing to apply Rule 4(b) time limits to an appeal from an order quashing a grand jury subpoena because a claim concerning a grand jury subpoena is a civil action and is therefore subject to the time limits in Rule 4(a)).

Nonetheless, our previous rulings indicate that Rule 4(a), the civil notice of appeal provision, should apply here because we are being asked to review a civil order, even though it was issued in a criminal case. In United States v. Kismetoglu, 476 F.2d 269, 270 n. 1 (9th Cir.) (per curiam), cert. dismissed, 410 U.S. 976, 93 S.Ct. 1454, 35 L.Ed.2d 709 (1973), we held that the government's appeal of an order enjoining it from filing a forfeiture action against an acquitted defendant in a criminal case was subject to the civil appeal provisions in Fed.R.App.P. 4(a) because "[a]lthough incorporated in a judgment in a criminal proceeding, the injunction appealed from [was] civil in nature...." Conversely, in Yasui v. United States, 772 F.2d 1496, 1499 (9th Cir.1985), we declined to apply the civil time limit to a notice of appeal of a denial of a post-sentence petition for writ of error coram nobis which alleged that the curfew law under which the petitioner had been convicted was unconstitutional. Our reason was that the petition constituted "a step in the criminal case" in light of its purpose of "setting aside [ ] the petitioner's criminal indictment and conviction." We distinguished appeals of rulings on 28 U.S.C. Sec. 2255 motions to set aside criminal convictions, which are statutorily governed by the civil appeal provision, on the ground that "28 U.S.C. Sec. 2255 ... establishes a special, statutory remedy with its own particular procedural requirements and limitations, and explicitly authorizes the taking of appeals as in habeas corpus cases. No such structure surrounds the coram nobis writ." Id. Taken together, Kismetoglu and Yasui indicate that even in a criminal case where a civil order, which does not constitute a "step in the criminal case," is appealed from, the civil time limits in Rule 4(a) apply.

In the instant case, the INS appeals an order directed against it, which, as to it, constitutes a civil action or proceeding. See, e.g., In re Grand Jury Proceedings, 894 F.2d 881, 882 (...