1. The Impact of Mellouli v. Lynch on Minnesota Drug Crimes April 1, 2016

2. Presenters  Ami Hutchinson (2L)  Kelley Keefer (2L)  Nicholas Anderson (3L)  Laura Heinrich, Hennepin County Public Defenders

3. Team Mellouli Goes to Washington

4. Controlled Substance Ground of Removability  INA 237(a)(2)(B)(i): –Any alien who at any time after admission has been convicted of a violation of... any law or regulation of a State... relating to a controlled substance (as defined in section 802 of title 21), other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deportable.

5. Moones Mellouli Comes Home

6. The Court Doubles Down on the Categorical Approach State Criminal Statute Federal Definition

7. Breakdown of Minnesota Drug Crimes under Mellouli Offenses that should not be removable under Mellouli Removable Offenses under Mellouli The Gray Zone Drug Paraphernalia First & Second degree violations (sale & possession) Third degree sale (but carries other risks!) Simulated SubstancesThird degree possessionFourth degree violations Fifth degree violations Other controlled substance violations

8. MINNESOTA CONTROLLED SUBSTANCES CRIMES REFERENCING DRUG PARAPHERNALIA >Possession of Drug Paraphernalia: Minn. Stat. § 152.092 –The crime of possession of drug paraphernalia criminalizes the knowing or intentional use or possession of drug paraphernalia. >Manufacture or Delivery of Drug Paraphernalia: Minn. Stat. § 152.093 –It is unlawful for any person knowingly or intentionally to deliver, possess, or manufacture drug paraphernalia for delivery.

9. What is Drug Paraphernalia? Drug paraphernalia. (a) Except as otherwise provided in paragraph (b), “drug paraphernalia” means all equipment, products, and materials of any kind, except those items used in conjunction with permitted uses of controlled substances under this chapter or the Uniform Controlled Substances Act, which are knowingly or intentionally used primarily in (1) manufacturing a controlled substance, (2) injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance, (3) testing the strength, effectiveness, or purity of a controlled substance, or (4) enhancing the effect of a controlled substance.

10. Simulated Controlled Substances >Minn. Stat. § 152.097 Minn. Stat. § 152.097 criminalizes the manufacture, sale, transfer, or attempt to sell, transfer or deliver a noncontrolled substance when that substance is (1) expressly represented as a controlled substance; (2) of such a nature or appearance that the recipient will be able to sell, transfer or deliver the substance as a controlled substance; (3) of such a nature that it would lead a reasonable person to believe the substance was a controlled substance.

11. Practice Tips >Criminal Defense Attorneys Try and keep the record clean by not identifying any specific controlled substance on the record of conviction. Stipulate only to “Minnesota Controlled Substance” >Immigration Attorneys:. –If no specific controlled substance is listed, the paraphernalia and simulated substance offenses are overbroad and not a categorical match to the list of federally controlled substances. –If a specific controlled substance is listed, look to see if the controlled substance listed is also listed on the list of federally controlled substances.

12. Minnesota Controlled Substance Crimes Referencing Specific Controlled Substances >First Degree Sale: Minn. Stat. § 152.021 Subd. 1 –The crime of First-Degree sale criminalizes sales of (1) ten grams or more of mixtures containing cocaine, heroin, or methamphetamine, (2) 50 grams or more of one or more mixtures containing a narcotic drug other than cocaine, heroin, or methamphetamine; (3) 50 grams or more of a mixture containing amphetamine, phencyclidine, or hallucinogen or 200 or more dosage units; or (4) 50 kilograms or more of a mixture containing marijuana or Tetrahydrocannabinols (reduced to 25 grams or more in a school zone, parks zone, public housing zone, or drug treatment facility). >First Degree Possession: Minn. Stat. § 152.021 Subd. 2  Second Degree Sale: Minn. Stat. § 152.022 Subd. 1  Second Degree Possession: Minn. Stat. 152.022 Subd. 2  Third Degree Possession: Minn. Stat. § 152.023

13. Practice Tips >Criminal Defense Attorneys Criminal attorneys should attempt to list only the category of drug, i.e. narcotic or hallucinogen when applicable. >Immigration Attorneys If only the category of drug is listed in the record of conviction, immigration attorneys should determine if the Minnesota definition of the category is overbroad.

14. Minnesota Drug Crimes that Reference Schedules not Substances Fifth-Degree Possession and Sale: Minn. Stat. § 152.025 Fourth-Degree Possession or Sale: Minn. Stat. § 152.024 Third-Degree Sale: Minn. Stat. § 152.023 Other Controlled Substance Offenses: Minn. Stat. § 152.027

15. Schedule-Based Offenses  Fifth-Degree Possession: unlawful possession of “... a controlled substance classified in Schedule I, II, III, or IV, except a small amount of marijuana.”

16. Schedule-Based Offenses  The identity of a substance is not a required statutory element.  Elements: –(1) knowing –(2) possession of a controlled substance –(3) within the schedule(s) listed in the statute.

17. Applying Mellouli  State schedule overbroad?  There should not be immigration consequences. Federally Controlled Substances Schedule I, II, III, or IV

18. How Do We Define “Element”?  Defined by state law sources –State court precedent –Statutory language –Jury instructions and other authoritative forms

19. Jury Instructions  Fifth-degree possession: First, the defendant unlawfully possessed one or more mixtures containing __________ (A Schedule I, II, III or IV controlled substance except a small amount of marijuana).

20. Jury Instructions  First-degree possession: one or more mixtures of a total weight of five hundred grams or more of __________ (the narcotic charged in the complaint).

21. Making Sense of Minn. Caselaw  “Knowing” mens rea  actual ID not required  Substance ID may be required in specific situations –Sufficiency of evidence –Burden of proof  Not universally required

22. The Battle for Facts FactsElements Consistency Avoid duplicative litigation Fairness Preserve Pleas Need to reach removable conduct

23. The Modified-Categorical Approach Statute Offense A (any object with Kansas C.S.) Offense B (Adderall socks)

24. The Modified-Categorical Approach  The “record of conviction” –The Charging Documents –Written Plea Agreements –Plea Colloquies –A Judge’s Explicit Factual Findings

25. Applying the Modified Categorical Approach to Fifth-Degree Possession STEP ONE  Fifth-degree controlled substance crimes are divisible between possession and sale: –Subdiv 1: Sale crimes; or –Subdiv 2: Possession crimes

26. Applying the Modified Categorical Approach to Fifth-Degree Possession STEP TWO  Fifth-degree possession is divisible by: –(a)(1)Unlawful possession of a Schedule I, II, III, or IV substance, except a small amount of marijuana; –(a)(2)Unlawful procurement or possession of a controlled substance by fraudulent means

27. Applying the Modified Categorical Approach to Fifth-Degree Possession Federal Controlled Substances Schedule I, II, III, or IV

29. The Modified Categorical Approach in the Eighth Circuit STEP THREE(?)  Schedule I;  Schedule II;  Schedule III; or  Schedule IV;

30. The Modified Categorical Approach in the Eighth Circuit Federally Controlled Substances Minn. Schedule I

31. The Modified Categorical Approach in the Eighth Circuit STEP FOUR(?)  Review of the record of conviction to determine what specific substance a defendant actually possessed.

32. The Modified Categorical Approach in the Eighth Circuit

33. Federally Controlled Substances The Modified Categorical Approach in the Eighth Circuit Alphamethadol

34. Immigration Practice Tips  Oppose divisibility beyond the statutory language that lists schedule(s) –Emphasize jury instructions/case law  At a minimum, try to contain divisibility to a specific schedule if the schedule involved in your client’s conviction is overbroad

35. An Added Layer of Protection: Scrub the Record of Substance ID  Whenever possible, remove mention of the substance from: –The Charging Documents –Written Plea Agreements –Plea Colloquies –A Judge’s Explicit Factual Findings

36. Strategies in Criminal Court

37. Low-Level Marijuana Crimes = Different Set of Rules  One-time exception for “personal use” marijuana possession. –Requires a circumstance-specific approach. –NOT categorical.  SCOTUS  30-grams is a useful guideline.

38. Underlying Facts are NOT Off Limits  Bring on the Facts –Police Reports –Witness Statements –Trial Transcripts –Other Relevant Evidence

39. The Removal Exception and Minnesota Marijuana Convictions  Possession of >1.4 grams in a Motor Vehicle: Minn. Stat. § 152.027(3).  Possession of ≤ 42.5 grams: Minn. Stat. § 152.027(4).

40. Immigration Practice Tips  Weight <30 grams? –EMPHASIZE IT.  Weight >30 Grams? –CONTEST EVIDENCE. –DHS has clear and convincing burden.  Petty possession + Marijuana in MV = categorically personal use offenses. –30-gram suggested limit is not binding.

41. Practice Tips for Defense Attorneys  Negotiate a non-drug charge  Include weight in plea agreement or complaint if below 30g  Exclude weight from the record if over 30g

42. Available Resources Resource 1: Mellouli Settlement Agreement Resource 4: Matter of Martinez-Espinoza 2015 case that was live and in our jurisdiction at the time Mellouli went to trial. Specifically notes that the Minnesota list of controlled substances are overbroad. Extends Mellouli to inadmissibility. Resource 3: Evolution of Minnesota Controlled Substances Schedules Provides a list of all substances on the Minnesota controlled substances schedules for any given year. Additions to the previous schedules are highlighted in yellow. Resource 4: Federally Controlled Substances (Schedules I-V) 1970-2015 Spreadsheet of the list of federally controlled substances from 1970-2015 (prepared by Harvard’s Immigration and Refugee Clinical Program)