Rehaif May Mean a New Take on Reading Statutes, One that Could Call for Revisiting Old Perceptions of Mens Rea for Texas Statutory Rape

Last week, we discussed certain constitutional issues raised by the Texas statutory-rape provisions. Timing here seems especially fitting given the U.S. Supreme Court’s grant of certiorari in Rehaif v. United States, No. 17-9560, on January 11, 2019. As the petitioner in Rehaif couched the issue, that case involves the question of “Whether the ‘knowingly’ provision of § 924(a)(2) applies to both the possession and status elements of a § 922(g) crime, as has been urged by then-Judge, now Justice Gorsuch, or whether it applies only to the possession element, as has been held by the courts.”

The Rehaif case arose in the Eleventh Circuit and involved a UAE citizen losing his student (and thus immigration) status yet participating in activities at a shooting range in Florida. When police questioned him about an unrelated call, Mr. Rehaif admitted he’d been at a gun range. Authorities charged him with being an unlawfully present alien in possession of a firearm. After conviction at trial, Mr. Rehaif received an 18-month sentence.

In his petition for a writ of certiorari, Mr. Rehaif acknowledged that, so far, no circuit has required proof of a defendant’s knowledge of his or her prohibited status under any subsection of § 922(g). He suggested, however, that the better approach to the issue, one advocated by some judges, is that the government should have to prove the defendant knew about his or her prohibited status for a § 922(g) offense.

Mr. Rehaif quoted Judge Gorsuch for the proposition that, when a criminal statute introduces the elements of a crime with the word “knowingly,” this knowledge requirement applies to each element of the offense. For Mr. Rehaif, the issue could have made a difference with the jury. Had the trial court instructed the jury differently, the jury may not have found Mr. Rehaif guilty: He had a viable defense that he did not know of his prohibited status. His school had sent an email allegedly notifying him that he had been “academically dismissed” and that his “immigration status w[ould] be terminated,” but no one at the school attempted to confirm that Mr. Rehaif had received the emails. Nor did anyone try to talk to Mr. Rehaif, who did not respond to the emails.

As with shooting at a gun range, having sex is lawful. The only thing that would make it unlawful under the Texas provisions we have been discussing is the age of one of the participants—just as unlawful immigration status is the crux in Mr. Rehaif’s case. “Knowledge” requirements should apply to these statuses.

In its opposition to a grant of certiorari in Rehaif, the government cited case law holding that “knowledge” need only apply to possession of the firearm—not to the defendant’s immigration status. It pointed out that Congress has not revisited the issue, and it cited some legislative history. It also pointed to an alleged admission that Mr. Rehaif had known of his change in status. The government, however, didn’t truly reach the logic of Mr. Rehaif’s arguments, a logic Mr. Rehaif reemphasized in his reply, citing Justice Gorsuch’s pre-SCOTUS words on the matter.

Sections 922(g) and 924(a)(2) contain a mens rea requirement similar to that of Texas Penal Code §§ 22.011(a)(2) and (c)(1), which, as we posited last week, display constitutional infirmities. It will be interesting to watch Rehaif unfold.






Void for Vagueness: Constitutional Issues Raised by the Texas Statutory-Rape Sections

In the next few weeks, we will explore the constitutional infirmities of Texas Penal Code §§ 22.011(a)(2) and (c)(1), which are unconstitutionally vague on their face because they fail to specify the necessary mens rea. Under § 22.011(a)(2), it is a crime to “intentionally and knowingly” commit certain sexual acts with a “child.” Section 22.011(c)(1) defines “child” as anyone under 17 years old who is not the alleged actor’s spouse.

In 2014, the Texas Court of Criminal Appeals found that the “Texas Penal Code does not specify that mens rea as to the age of the victim is necessary.” Fleming v. State, 441 S.W.3d 253, 258 (Tex. Crim. App. 2014). Yet as just explained, § 22.011(a)(2) requires the accused to act “intentionally or knowingly,” and a year after the court ruled in Fleming, the Court of Criminal Appeals held that, in a circumstances-of-conduct offense, mens rea attaches to the circumstance making the act illegal. See Robinson v. State, 466 S.W.3d 166, 172 (Tex. Crim. App. 2015). A culpable mental state must attach to the circumstance that constitutes “the gravamen of the offense.” See id.

Section 22.011(a)(2) enumerates such a circumstances-of-conduct offense rather than a nature-of-conduct offense. In Fleming, Presiding Judge Sharon Keller dissented. She pointed out the substantive-due-process issues raised in this context by the U.S. Supreme Court’s decision in Lawrence v. Texas, 539 U.S. 558 (2003). The rationale for holding a defendant strictly liable because they should have at least realized that they were committing the illegal, immoral, or risky conduct of fornication with an adult has been negated entirely by the holding in Lawrence. Fleming, 441 S.W.3d at 281. (Keller, P.J., dissenting). In the wake of Lawrence, sexual activity between consenting adults is not subject to strict legislative regulation; “thus, a defendant does not necessarily act at his peril when he reasonably believes that he is having sexual relations with an adult.” Id. The Lawrence decision “led at least two law professors to contend in published law review articles that due process requires that a defense be available to an individual who engages in sexual intercourse with a person that he non-negligently believes is an adult.” Id.

Courts finding that Lawrence does not apply in cases involving minors “have missed the point,” as Presiding Judge Keller explained. Id. at 282. These courts have taken an overly narrow view of the rights at stake. See id. If a defendant non-negligently believed they were having consensual sex with an adult, they non-negligently believed in the existence of circumstances that would provide constitutional protections from liability under Lawrence. See id. “Such a non-negligent belief would negate the existence of even the most minimal sort of mental culpability.” Id.

Under this reasoning, fornication is no longer considered immoral under Lawrence, so a violation of § 22.011(a)(2) is not a nature-of-conduct offense. Rather, it is a circumstances-of-conduct offense, where the circumstance at issue is the age of the complainant. As such, the decision of the Court of Criminal Appeals in Robinson requires that the relevant mens rea attach to the age of the complainant.

This mens rea related to age, however, would not be apparent to any person reading §§ 22.011(a)(2) and (c)(1). Thus citizens, law-enforcement officers, and prosecutors lack the requisite guidance to comply with or enforce the law. The federal prohibition in 18 U.S.C § 2241(d) provides a useful comparison. Unlike §§ 22.011(a)(2) and (c)(1), § 2241(d) explicitly provides that, “[i]n a prosecution under subsection (c) of this section, the Government need not prove that the defendant knew that the other person engaging in the sexual act had not attained the age of 12 years.” Sections 22.011(a)(2) and (c)(1) simply fail to provide the same warning. Section 22.011 is unconstitutionally vague on its face.

First Steps of the First Step Act

Well, the First Step Act is taking effect. Matthew Charles’s case received attention in 2018, when his “erroneous” release from prison as a career offender under the retroactive crack-cocaine guideline changes and 18 U.S.C. § 3582(c)(2) led to a government appeal and the Sixth Circuit affirming reinstatement of his original 35-year sentence. He returned to prison after that decision, but now he is going home for good.

You can read about his journey here:

Despite affirming re-imposition of the original 35-year sentence, the Sixth Circuit recognized Charles’ extraordinary record of rehabilitation and good works and recommended he pursue an application for executive clemency. Now, the First Step Act is putting Mr. Charles back into his community to return to the volunteering and service he pursued during his ill-fated initial release. Judge Aleta Trauger, in the Middle District of Tennessee, signed an order on January 3, 2019, ordering immediate release.

Section 404 of the First Step Act broadens retroactive application of the provisions of the Fair Sentencing Act of 2010. We will be watching and posting as the effects of the First Step Act make themselves felt.

Plea Negotiations and Waivers: A Reminder

The Fifth Circuit started 2019 with a reminder to counsel.

In United States v. Hicks, No. 17-51101 (5th Cir. Jan. 2, 2019) (unpublished), the court cautioned counsel: “pursuing an appeal contrary to a valid waiver and without responding to the Government’s invocation of the waiver is a needless waste of judicial resources and could result in sanctions.” The defendant had appealed his 168-month, within guidelines sentence for a crack-cocaine offense. The government sought to enforce the waiver, which covered the defendant’s right to appeal “any” aspect of the defendant’s conviction or sentence. The court dismissed, finding the waiver applied.

Just another reminder for counsel to proceed with caution in negotiating plea agreements when waivers are on the table.

Case Analysis, by James McComas (a review)

James McComas has written an excellent short book that deserves to be on the shelf of every criminal defense attorney.
His core insight is that, in every case, only a few facts and circumstances determine the outcome for either side. Once these “outcome levers” are identified, our job as defense lawyers is to eliminate or minimize our opponent’s points and maximize ours.
To this end, McComas advocates a five step process:

1. Identify Legal and Factual Theories.

2.  Identify Outcome Levers. McComas defines an outcome lever as “anything — a fact, a piece of evidence, a psychological reality, a jury feeling, a current event, a cultural phenomenon, or other factor — that is capable, in and of itself, of determining the outcome for one side or the other.”

3.  Maximize or minimize outcome levers.
The most readily available means to maximize or minimize outcome levers include:
  • Investigation
  • Continuing Case Analysis
  • Pretrial motions litigation
  • Arranging expert testimony
  • Preparing to cross examine opposing witnesses
  • Preparing defense witnesses to testify
  • Well founded timely objections
  • Jury instructions
  • Voir Dire
  • etc.
4.  Choose the Best Theory of the Case
5.  Identify and Deal with Trapdoors. McComas defines trapdoors as “reasoning by which jurors can buy most of our position but still return a verdict against our client.”
McComas then goes on to describe what attributes he believes a theory of the case must have before it will be accepted by the jury. It must be:
  1. Productive of an acquittal.
  2. Possible
  3. Plausible
  4. Persuasive
  5. Playable, i.e. not too close to the reality our opponent seeks.
  6. Powerful
  7. Provable.
It is my belief that whether they do so deliberately or subconsciously, all great trial lawyers engage in some form of the process McComas advocates. Up until now, young lawyers had to discover these truths for themselves or be lucky enough to learn them from a mentor. Now they are available to all.


On UpJohn Warnings

In our practice we often work with counsel representing corporate clients. These engagements often involve Government investigations and parallel civil or regulatory litigation. One issue that arises frequently is what steps counsel for the corporation should take to inform employees of who she represents, what the attorney-client privilege is, and who gets to decide what communications are disclosed to the government.

This is an important topic because if counsel for the corporation fails to inform the employee that her loyalty is to the corporation and not to the employee, then the employee can claim that an attorney-client relationship was created between the employee and corporate counsel. This may have three negative effects: first, it can result in the lawyer and the lawyer’s law firm being disqualified from representing either the employee or the corporation; second, it can prevent the disclosure to the government of the communications between the attorney and the employee, even if such disclosure would be in the company’s best interest; and third, it can create the possibility of a malpractice lawsuit against the attorney and her firm.

To avoid these unintended consequences, corporate counsel must provide the employee with Upjohn warnings.  See Upjohn Co. v. United States, 101 S. Ct. 677 (1981).These warning consist of making the following disclosures to the company employee before the interview begins:

Explaining to the employee what role each participant (in house or outside counsel, investigator, etc.) is playing in the interview;

Explaining to the employee that the in-house or outside counsel represents the company and not the individual employee;

Explaining to the employee that the interview is being conducted under the  “umbrella” of the attorney-client privilege;

Confirming with the employee that she understands what the attorney-client privilege means and explaining it if necessary;

Explaining to the employee that the privilege belongs to the company, and not to the employee;

Explaining to the employee that the company considers the interview to be privileged and confidential and that the employee should not disclosed to anyone else what was said at the interview;

Explaining to the employee that because the privilege surrounding the interview belongs to the company, the company has the right to determine at some point in the future that will “waive” or give up that privilege, and that the company has the sole right to do that if it chooses;

Explaining to the employee that from time to time companies do waive privilege  on communications with employees and allow government agencies to have access to the contents of communications;

Explaining to the employee that such waivers of privilege are not done lightly, but that it is important for the employee to understand that the privilege belongs to the company and the company can waive it; and finally

Asking the employee if he or she has any questions about these issues.

The attorney whose standard pre-interview script covers these matters will have successfully avoided the pitfalls that can occur when an employee later claims an attorney-client relationship with in-house or outside counsel.

If you have any questions about  UpJohn warnings, or any other criminal law related matter, please don’t hesitate to call us at (713) 228-5900.