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Opinions – 2/27/14: 4th U.S. Circuit Court of Appeals

Criminal Procedure

Speedy Trial Act 

BOTTOM LINE: Although U.S. District Court erred in requiring defendant to waive her rights under the Speedy Trial Act as a condition for granting a mistrial, appellate review was not available because defendant’s claims under the Act were not timely asserted below.

CASE: United States v. Mosteller, No. 12-4434 (decided Feb. 4, 2014) (Judges Motz, KEENAN & Thacker). RecordFax No. 14-0204-60, 15 pages.

COUNSEL: Bradley M. Kirkland, Bradley M. Kirkland, LLC, Columbia, SC, for Appellant. William E. Day, II, Office of the United States Attorney, Florence, SC, for Appellee.

FACTS: After Megan Mosteller’s husband, a soldier in the United States Marine Corps, died in March 2008, Mosteller began receiving “dependency and indemnity compensation” as a surviving spouse benefits from the Department of Veteran Affairs (VA), in the amount of $1,100 per month, and $3,000 in education benefits. As a condition of receiving this compensation, Mosteller was obligated to notify the VA if she ceased attending classes or remarried.

In August 2008, Mosteller married David Redding. Mosteller did not inform the VA of her change in marital status and continued to receive surviving spouse benefits until October 2010. Additionally, Mosteller did not inform the VA that after receiving the education benefits, she had not attended any classes.

The VA’s Office of Inspector General instituted an investigation of Mosteller’s receipt of VA benefits. The investigation led to a grand jury indictment charging Mosteller with one count of theft of government funds. Notably, the indictment charged her with theft of surviving spouse benefits but did not include any reference to the education benefits.

Mosteller’s first trial began on November 1, 2011. After a witness testifying on behalf of the government made statements regarding Mosteller’s receipt of the education benefits, Mosteller moved for a mistrial on the basis that her receipt of those benefits was not part of the charged conduct. The government opposed Mosteller’s motion. Although the district court observed that Mosteller’s receipt of the education benefits was outside the scope of the indictment, the court denied the motion for a mistrial and instead struck the testimony concerning the education benefits and offered to provide a curative instruction to the jury. Additionally, the government agreed that it would not introduce further evidence relating to the education benefits.

After a recess, however, the government informed the district court that it would be difficult to redact certain exhibits containing information relating to both the surviving spouse benefits and the education benefits. The government withdrew its opposition to Mosteller’s motion for a mistrial, and stated that a superseding indictment would be filed if a mistrial was granted. The court stated that it was inclined to grant a mistrial if Mosteller agreed to waive her rights under the Speedy Trial Act until the court’s January 2012 term. After the court addressed Mosteller individually, informing her of her rights under the Speedy Trial Act, Mosteller stated that she would waive her rights under the Act as a condition of the court’s decision to grant a mistrial. Accordingly, the district court declared a mistrial.

A superseding indictment was issued two weeks later charging theft of government funds based on her receipt of both the education benefits and the surviving spouse benefits. Although Mosteller’s second trial began on February 21, 2012, well more than 70 days after the mistrial, Mosteller did not move to dismiss the superseding indictment based on a violation of the Act. Mosteller was convicted and sentenced to a prison term of fifteen months.

Mosteller appealed to the 4th Circuit, which affirmed.

LAW: The Speedy Trial Act generally requires that a trial begin “within 70 days of the filing of an information or indictment or the defendant’s initial appearance.” Zedner v. United States, 547 U.S. 489, 497 (2006) (citing 18 U.S.C. §3161(c)(1)). In the event of a mistrial, the Act provides that a new trial must begin within 70 days “from the date the action occasioning the retrial becomes final.” See §3161(e). If a defendant makes a timely motion to dismiss, the remedy for a violation of the Act is dismissal of the information or indictment. §3162(a)(2).

The district court retains discretion to determine under the factors set forth in §3162(a)(2) whether the dismissal should be entered with or without prejudice. Significantly, the Act contains a provision (the waiver provision) stating that the “[f]ailure of the defendant to move for dismissal prior to trial or entry of a plea of guilty or nolo contendere shall constitute a waiver of the right to dismissal under this section.” Id.

Here, the district court erred in requiring that Mosteller agree to waive her rights under the Act as a condition of granting the mistrial. A defendant may not waive application of the Act for a violation that has not yet occurred. 547 U.S. at 503. The public’s interest underlying the Act cannot be served if defendants are permitted to waive their right to assert a future violation of the Act. Id. Based on this reasoning, the a defendant may not waive future application of the Act. Id. at 503. Thus, Mosteller’s agreement purporting to waive future rights under the Act was null and void.

Although a defendant may not waive future application of the Act, a waiver nevertheless will result by operation of the statutory waiver provision if the defendant fails to move to dismiss the indictment before the new trial begins. See id. at 502. A defendant’s failure to make a timely motion to dismiss an indictment before the start of a new trial constitutes a waiver of the defendant’s right to assert a violation of the Act. United States v. Henry, 538 F.3d 300, 304 (4th Cir. 2008).

Here, plain error review was not available for consideration of Speedy Trial Act claims that were not timely asserted in the district court. This conclusion was required by the express language of the waiver provision, which states that the failure to file a motion to dismiss before trial “shall” constitute a “waiver of the right to dismissal” under the Act. §3162(a)(2). Under the unambiguous terms of the statute, “waiver of the right to dismissal” is the only possible outcome of a defendant’s failure to file a timely motion to dismiss under the Act. Therefore, because §3162(a)(2) specifies that such a “waiver” occurs when a defendant fails to timely assert a Speedy Trial Act violation in the district court, the Court of Appeals was not permitted to conduct any appellate review, for plain error or otherwise, of Mosteller’s claim.

Accordingly, the judgment of the district court was affirmed.

Immigration Law


BOTTOM LINE: Where aliens had two children born in the U.S., remand was warranted regarding the denial of their claim for asylum under the Immigration and Nationality Act based on China’s one-child policy, because neither the immigration judge nor the Board of Immigration Appeals explained why the evidence did not sufficiently establish a reasonable basis for asylum.

CASE: Chen v. Holder, No. 12-2279 (decided Feb. 5, 2014) (Judges TRAXLER, Motz & Keenan). RecordFax No. 14-0205-60, 28 pages.

COUNSEL: Alexa Taiz Torres, Law Office of Richard Tarzia, Belle Mead, NJ, for Petitioners. Walter Bocchini, United States Department of Justice, Washington, for Respondent.

FACTS: Petitioners Ai Hua Chen and Jin Xiu Li, both natives of China, met and married in the United States and are the parents of two children born to them here. Li arrived in the United States in June 2001 without valid entry documents and was placed in removal proceedings by the Department of Homeland Security (“DHS”). Li sought political and religious asylum, but an immigration judge denied his application in 2003 and the Board affirmed in 2005. In 2010, however, the Board granted Li’s motion to reopen.

Chen entered the United States in January 2003 on a nonimmigrant K-1 visa, known as a “fiancé visa,” which permits the foreign-citizen fiancé of an American citizen to travel to the United States to marry his or her citizen sponsor within ninety days of arrival. Chen’s fiancé sponsor, as it turned out, decided not to marry her. Chen, however, remained in the United States after the expiration of the ninety-day period. Chen and Li eventually met in 2005 and married in 2007.

Also in 2007, Chen gave birth to petitioners’ two children. Chen did not have legal status in the United States, however, and she worried that if she were ever forced to return to China, she and Li would be considered violators of China’s infamous one-child policy. Thus, in August 2007, while pregnant with petitioners’ second child, Chen applied for political asylum, which led to the DHS initiating removal proceedings against her for overstaying her visa. In 2011, the proceedings against Chen were consolidated with Li’s reopened proceedings.

Although the Immigration Judge (“IJ”) found both Li and Chen to be credible witnesses, he concluded that they failed to prove that their genuine fear of future persecution under the family-planning policy was objectively reasonable. The Board of Immigration Appeals (“BIA”) affirmed the IJ’s decision.

Petitioner’s appealed to the 4th Circuit, which reversed.

LAW: In order to establish eligibility for asylum under the Immigration and Nationality Act (“INA”), an applicant must demonstrate that he or she is entitled to refugee status. See 8 U.S.C. §1158(b)(1)(A). Under the INA, a refugee is someone “who is unable or unwilling to return to…[his or her] country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” §1101(a)(42)(A). Petitioners “may satisfy this burden by showing either that they were subjected to past persecution or that they have a well-founded fear of future persecution on account of” one of the enumerated grounds. Djadjou v. Holder, 662 F.3d 265, 272 (4th Cir. 2011). The INA specifically permits victims of China’s population control policy to seek political asylum: “[A] person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion.” §1101(a)(42).

In order for the Court to discharge its “responsibility to ensure that unrebutted, legally significant evidence is not arbitrarily ignored by the factfinder,” Baharon v. Holder, 588 F.3d 228, 233 (4th Cir. 2009), the Court requires the IJ and the BIA to “offer a specific, cogent reason for rejecting evidence, whether testimonial or documentary, because it lacks credibility,” Tassi v. Holder, 660 F.3d 710, 720 (4th Cir. 2011). The BIA and IJ are not required to discuss every piece of evidence in the record, but they must “announce their decision[s] in terms sufficient to enable a reviewing court to perceive that they have heard and thought and not merely reacted.” Ayala v. U.S. Att’y Gen., 605 F.3d 941, 948 (11th Cir. 2010).

Here, Chen and Li offered “powerful contradictory evidence,” Gonahasa v. INS, 181 F.3d 538, 542 (4th Cir. 1999), for which the BIA and the IJ failed to adequately account. Li and Chen submitted the Congressional-Executive Commission on China (“CECC Report”), which states that, as of 2009, forced abortions and sterilizations were still occurring in China.

The foregoing contradictory evidence was strong enough that it required the agency to account for it in a meaningful way. The boilerplate language used by the BIA in discounting Li and Chen’s evidence was insufficient to demonstrate that the agency gave it more than perfunctory consideration.

Accordingly, the judgment of the BIA was reversed.