United States v. Michael L. Montalvo

KOZINSKI, Circuit Judge,

concurring.

I agree that Montalvo’s conviction should be affirmed, but on different grounds: I do not believe Richardson v. United States, 526 U.S. 813 , 119 S.Ct. 1707 , 143 L.Ed.2d 985 (1999), established a new substantive rule of criminal law; it is, rather, a rule of criminal procedure and therefore Teague-barred as to cases that had become final before Richardson was decided. While the majority’s approach is supported by every circuit that has considered the issue, I believe it is wrong as a matter of theory and further blurs the *1060 already fuzzy line between substance and procedure under Teague.

The confusion stems, in no small measure, from the shorthand labels “substantive” and “procedural.” Because Richardson involves interpretation of a criminal statute — with the Supreme Court deciding whether the phrase “series of violations” refers to one element or several elements — it might seem that the new rule must be “substantive.” After all, the Supreme Court has said that because Teag-ue’s anti-retroactivity principle “applies only to procedural rules[,] it is inapplicable to the situation in which this Court decides the meaning of a criminal statute enacted by Congress.” Bousley v. United States, 523 U.S. 614, 620 , 118 S.Ct. 1604 , 140 L.Ed.2d 828 (1998) (emphasis added).

But Bousley’s language must not be taken out of context. Bousley considered whether the Supreme Court’s interpretation of the firearms statute in Bailey v. United States, 516 U.S. 137 , 116 S.Ct. 501 , 133 L.Ed.2d 472 (1995), is retroactively applicable to criminal convictions that had become final. Bailey held that the word “use” in the statute requires more than mere possession; it requires the government to show “active employment of the firearm.” 516 U.S. at 143 , 116 S.Ct. 501 (emphasis omitted). Bousley characterized the Bailey rule as substantive and, therefore, not Teague-barred. The reason for the conclusion, however, is not only that “[the] Court [was] deciding] the meaning of a criminal statute enacted by Congress.” Bousley, 523 U.S. at 620 , 118 S.Ct. 1604 . Much more importantly, it’s because the Court’s “holding that a substantive federal criminal statute does not reach certain conduct, like decisions placing conduct beyond the power of the criminal law-making authority to proscribe, necessarily carries] a significant risk that a defendant stands convicted of an act that the law does not make criminal.” Id. (internal quotation marks and citation omitted). “Accordingly,” the Court held, “it would be inconsistent with the doctrinal underpinnings of habeas review to preclude petitioner from relying on ... Bailey in support of his claim that his guilty plea was constitutionally invalid.” Id. at 621, 118 S.Ct. 1604 .

Hence, “substantive” in this context means the new rule places certain real-life conduct beyond the power of the criminal law—either because the statute, properly interpreted, doesn’t reach it, or because constitutional constraints do not allow the state to prohibit it. See id. at 620 , 118 S.Ct. 1604 ; Teague v. Lane, 489 U.S. 288, 311 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989) (plurality opinion) (“[A] new rule should be applied retroactively if it places certain kinds of primary, private individual conduct beyond the power of the criminal lawmaking authority to proscribe.” (internal quotation marks omitted)); Mackey v. United States, 401 U.S. 667, 692 , 91 S.Ct. 1160 , 28 L.Ed.2d 404 (1971) (Harlan, J., concurring in part, dissenting in part) (“New ‘substantive due process’ rules, that is, those that place, as a matter of constitutional interpretation, certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe, must, in my view, be placed on a different footing.” (footnote omitted)).

The other cases cited by the majority are to the same effect: The new rules were held to be substantive and retroactive because the conduct could not be proscribed under a correct interpretation of the statute. See McNally v. United States, 483 U.S. 350, 356-60 , 107 S.Ct. 2875 , 97 L.Ed.2d 292 (1987) (narrowing the federal mail fraud statute to protect only property rights); United States v. Bordallo, 857 F.2d 519, 524 (9th Cir.1988) (holding that the bribery statute does not ex *1061 tend to conduct in Guam); United States v. Aguon, 851 F.2d 1158 (9th Cir.1988) (en banc) (holding that inducement is an essential element of the extortion statute).

In contrast to these cases, Richardson does not place any previously illegal conduct beyond the reach of the state’s penal authority. Before and after Richardson , a person could be convicted of CCE if he committed at least three drug felonies, if he supervised at least five individuals and if he derived substantial income from his illegal activities. The only difference post- Richardson is how the jury goes about performing its functions: They may convict only if all twelve members unanimously agree on three specific predicate felonies that make up the “continuing series.” Because this affects conduct in the courthouse and not in the world at large, it is a matter of procedure.

Were we writing on a blank slate, we might be able to call even this type of change in the law “substantive.” But the slate is not clean. Recently, in United States v. Sanchez-Cervantes, 282 F.3d 664, 668 (9th Cir.2002), we held that the rule announced in Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000) (holding that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt), was procedural. We arrived at this conclusion even though every application of the constitutional rule requires distinguishing between the statute’s “elements” and “sentencing factors,” and even though it’s almost certain, as a simple matter of mathematical probability, that some defendants would not have been convicted had the statutory elements been submitted to a jury of twelve, instead of decided by a judge alone. There may well be a plausible argument that, because Apprendi narrows the class of persons who is likely to be convicted, the rule is substantive. But we have already rejected this argument. Instead, we characterized the rule as procedural because Apprendi affects only the identity of the decisionmaker and the burden of proof, but does not place conspiracies beyond the reach of the drug laws. See also McCoy v. United States, 266 F.3d 1245, 1256-57 (11th Cir.2001) (holding that because Apprendi does not place drug conspiracies beyond the scope of the state’s authority to proscribe, Teague’s exception for substantive rules does not apply); United States v. Moss, 252 F.3d 993 , 997 n. 3 (8th Cir.2001) (same); United States v. Sanders, 247 F.3d 139, 148 (4th Cir.2001); cf. Bilzerian v. United States, 127 F.3d 237, 241 (2d Cir.1997) (holding that claims based on United States v. Gaudin, 515 U.S. 506 , 115 S.Ct. 2310 , 132 L.Ed.2d 444 (1995), which requires the materiality element in the federal false statement statute be decided by the jury, are Teague-barred); United States v. Shunk, 113 F.3d 31, 35 (5th Cir.1997) (same); United States v. Swindall, 107 F.3d 831, 835 (11th Cir.1997) (same).

Our cases on standards of proof point to the same conclusion. Altering the standard of proof is almost certain to change the outcome in at least some cases. But questions about standards of proof have long been recognized as procedural, not substantive, across a broad range of legal fields. See, e.g., In re Winship, 397 U.S. 358, 362 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970); Chow v. INS, 641 F.2d 1384 , 1391 n. 4 (9th Cir.1981). This is so even if the standard is derived from an interpretation of a statute or, in Bousley’s words, when the “Court decides the meaning of a ... statute enacted by Congress.” Bousley, 523 U.S. at 620 , 118 S.Ct. 1604 ; see, e.g., Melton v. Moore, 964 F.2d 880, 882 (9th Cir.1992) (holding that a Supreme Court decision that changed the standard of proof from “clear and convincing” to “pre *1062 ponderance of the evidence” under 11 U.S.C. § 523 (a) “did not establish a new evidentiary or substantive rule of law; however, it announced a procedural change”).

Hence, the mere fact that Richardson involves an interpretation of a statute and that convictions would henceforth be more difficult to obtain does not make the new rule substantive. The dispositive question is whether the decision places certain previously illegal conduct beyond the reach of the criminal law in effect. Because the answer is clearly no, Teague applies, and Montalvo’s Richardson claim cannot be asserted on habeas.