United States v. Rafael Barahona United States
| Decision Date | 12 December 2014 |
| Docket Number | Case No. 2014 DVM 1945,Case No. 2013 DVM 2019 |
| Parties | UNITED STATES v. RAFAEL BARAHONA UNITED STATES v. MARVIN ESCOBAR |
| Court | D.C. Superior Court |
These two unrelated cases present a question that arises with some frequency in the Superior Court's Domestic Violence Unit: does a noncitizen's conviction for a misdemeanor domestic violence offense so impact his or her immigration status to create a constitutional entitlement to a jury trial based on the "serious" nature of the aggregate statutory penalties? In these cases, the Court has found that the offenses charged - simple assault and misdemeanor sexual abuse - simply do not constitute the type of domestic violence offenses that can serve as a predicate to deportation under federal immigration law, and has thus denied the Defendants' jury trial demands. The Court issues this Memorandum Opinion to set forth in further detail the basis for its decisions in these cases.
Defendants Rafael Barahona and Marvin Escobar each face misdemeanor domestic violence charges. Mr. Barahona was charged on September 4, 2013 with one count of simple assault in violation of D.C. Code § 22-404 (2001).1 On August 23, 2014, Mr. Escobar was charged with one count of attempted misdemeanor sexual abuse in violation of D.C. Code §§ 22-3006, 3018 (2001) and one count of simple assault in violation of § 22-404. Because the charges they face carry maximum penalties of no more than 180 days in jail and/or a $1,000 fine, see D.C. Code §22-3571.01; D.C. Code § 22-404, they do not generally confer upon the Defendants a constitutional or statutory right to a jury trial. See Blanton v. Las Vegas, 489 U.S. 538, 541-42 (1989) (); D.C. Code § 16-705(b)(1)(A) (). Neither Defendant is a citizen of the United States.2
In these cases, however, the Defendants have argued that they will be deported upon conviction, and that the fact that they face this additional penalty changes the Sixth Amendment3 calculus in a manner that confers upon them a constitutional right to a trial by jury. On September 24, 2014, Mr. Barahona and Mr. Escobar each filed a Motion Demanding a Jury Trial. After extensive further briefing by the parties, the Public Defender Service of the District of Columbia (hereinafter "PDS") filed a Memorandum as Amicus Curiae. The Court heard the arguments of the parties and PDS at a November 10, 2014 motions hearing.
The Defendants and PDS concede that because defendants convicted under the District's simple assault and misdemeanor sexual abuse statutes face less than six months in prison, these offenses ordinarily constitute "petty offenses" rather than "serious crimes" for Sixth Amendment purposes, and defendants charged with these crimes thus presumptively do not have a constitutional right to trial by jury. See Blanton, 489 U.S. at 541-43. They note, however, that the severity of certain other consequences of a conviction can entitle a defendant to a jury trial for what otherwise would be deemed a "petty offense" if a defendant "can demonstrate that any additional statutory penalties, viewed in conjunction with the maximum authorized period of incarceration, are so severe that they clearly reflect a legislative determination that the offense in question is a 'serious' one." Id. at 543. The Defendants4 point out that federal immigration law subjects noncitizens to automatic removal from the United States upon conviction for a "crime of domestic violence," 8 U.S.C. § 1227(a)(2)(E)(i), and argue that they thus face the type of "additional statutory penalties" that create a constitutional right to a jury trial for these offenses.
The Defendants and PDS acknowledge that the District of Columbia Court of Appeals has held in at least two cases - Olafisoye v. United States, 857 A.2d 1078 (D.C. 2004) and Foote v. United States, 670 A.2d 366 (D.C. 1996) - that "administrative deportation proceedings do not raise an otherwise petty offense to the level requiring a jury trial." Olafisoye, 857 A.2d at 1084; see also Foote, 670 A.2d at 372. They do, however, advance quite compelling arguments as to the current force of these cases as binding precedents. To begin with, they criticize the summary nature of the analysis in Foote and Olafisoye, and maintain that their commentary on the impactof possible deportation on the jury trial right represents dicta. Perhaps more importantly, the arguments advanced by Defendants and PDS cast substantial doubt on whether the conclusion reached in Foote and Olafisoye survives in light of Padilla v. Kentucky, 559 U.S. 356 (2010). There, the Supreme Court observed that "deportation is . . . intimately related to the criminal process," id. at 365, such that it seems difficult "to divorce the penalty from the conviction in the deportation context," id. at 366; that deportation is a "particularly severe penalty," id. at 365 (citation omitted; emphasis added); and that deportation or removal following conviction is no longer an "uncertain and purely collateral consequence[], " Foote, 670 A.2d at 372, but a "virtually inevitable [result] for a vast number of noncitizens convicted of crimes," Padilla, 559 U.S. at 360. PDS further contends that, especially in light of the language used in Padilla, it seems difficult to argue that deportation amounts to a less significant penalty than those that other courts have held transform "petty offenses" into "serious crimes" for the purpose of evaluating the right to a jury trial. See, e.g., Richter v. Fairbanks, 903 F.2d 1202, 1205 (8th Cir. 1990) (); United States v. Smith, 151 F. Supp. 2d 1316, 1317 (N.D. Okla. 2001) ().
In opposing the Defendants' jury demands, the government has maintained, inter alia, that Padilla has no impact on the vitality of Foote, and that binding precedent thus requires the rejection of the Defendants' requests. The United States has also argued that, as a result of a number of immigration cases in which its position did not prevail in the Supreme Court and in various federal appellate courts, the offenses with which it has charged the Defendants do not qualify as "crimes of domestic violence" under 8 U.S.C. § 1227(a)(2)(E)(i), and Defendants' convictions in these cases simply could not lead to their deportation under federal immigration law.
On December 3, 2014, the Court issued an Order in each case denying the Motion Demanding a Jury Trial, stating that:
. . .because the Court concludes that [neither simple assault nor misdemeanor sexual assault] constitute a "crime of domestic violence" as defined by 8 U.S.C.A. § 1227(a)(2)(E) and 18 U.S.C. § 16, it finds that Defendant's conviction in this case would not subject him to deportation. Defendant thus does not face the type of additional statutory penalties that would require the classification of the offense charged as "serious" for Sixth Amendment purposes, see Blanton v. City of North Las Vegas, 489 U.S. 538, 541-43 (1989), and he is not entitled to a jury trial in this case.
See United States v. Rafael Barahona, No. 2013-DVM-1358 (Dec, 3, 2014) (); United States v. Marvin Escobar, No. 2014-DVM-1945 (Dec. 3, 2014) ().
Changes in the federal immigration law over the past twenty years "have dramatically raised the stakes of a noncitizen's criminal convictions." Padilla, 559 U.S. at 364. As the Defendants and PDS emphasize, the Supreme Court's decision in Padilla described the harsh, punitive nature of deportation as well as the interdependent relationship between criminal and immigration proceedings in a manner that seems entirely incompatible with the Court of Appeals' analysis in Foote and Olafisoye. See, e.g., id. at 366-69. Indeed, had federal law changed such that Mr. Barahona and Mr. Escobar would become deportable as a result of convictions in these misdemeanor cases, this Court would be inclined to characterize the charges they face as "serious crimes" for which the Sixth Amendment guarantees a jury trial. However, because federal law has not been so altered as to permit deportation for these particular domesticviolence misdemeanors, the Court had no need to rule on the continued vitality of Foote and Olafisoye, and has denied the Defendants' requests for a jury trial.5
Despite what appear to be popular misconceptions to the contrary, a conviction for a domestic violence misdemeanor can only lead to deportation under a very narrow set of circumstances. The Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., allows for automatic deportation from the United States of any noncitizen convicted of a statutorily-defined "crime of domestic violence." Id. at § 1227. Specifically, 8 U.S.C. § 1227(a)(2)(E)(i) provides that, upon the order of the Attorney General, an alien shall be removed for commission of a "crime[] of moral turpitude" if convicted "of a crime of domestic violence . . . ." Id. The statute defines the term "crime of domestic violence" as:
. . . any crime of violence (asdefined in section 16 of title 18, United States Code) against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who is cohabiting with or has cohabited with the person as a spouse, by an individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction where the offense occurs, or by any other individual against a...
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