Opposition Brief — Delroy McLean, Petitioner v. United States

No. 18-6789

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

DELROY MCLEAN, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

BRIAN A. BENCZKOWSKI

Assistant Attorney General

AMANDA B. HARRIS

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTION PRESENTED

Whether an immigration judge is a “United States judge” for

purposes

of

18

U.S.C.

115(a)(1)(B)’s

prohibition

against

threatening to assault, kidnap, or murder such an official with

intent to impede, intimidate, or interfere with the official while

engaged in the performance of official duties.

(I)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 18-6789

DELROY MCLEAN, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1-5) is

reported at 891 F.3d 1308.

JURISDICTION

The judgment of the court of appeals was entered on June 8,

2018.

The petition for a writ of certiorari was filed on August

31, 2018.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court

for the Middle District of Georgia, petitioner was convicted of

2

threatening to assault a United States judge with intent to impede,

intimidate, or interfere with the judge while engaged in the

performance

of

official

duties,

115(a)(1)(B).

Judgment 1.

imprisonment.

Judgment 2.

in

violation

of

18

U.S.C.

He was sentenced to 41 months of

The court of appeals affirmed.

Pet.

App. 1-5.

1.

Petitioner,

a

Jamaican

citizen,

came

to

the

United

States in 1989 and was granted lawful permanent resident status.

Gov’t C.A. Br. 4.

In 2008, petitioner was convicted in Georgia

state court of second-degree criminal damage to property for

smashing the windshield and passenger window of a car with a tire

iron.

Presentence Investigation Report (PSR) ¶ 35.

served five years in prison.

Ibid.

Petitioner

After serving his prison

sentence, he was taken into immigration custody at the Stewart

Detention

Facility

deportation.

(SDC)

in

Lumpkin,

Georgia,

to

await

Gov’t C.A. Br. 5; PSR ¶ 3.

An immigration judge, Saundra Arrington-Dempsey, determined

that petitioner’s conviction for second-degree criminal damage to

property was an aggravated felony, which rendered him ineligible

for release from immigration custody on bond.

Tr. (Tr.) 3, 32-33, 35-36, 50.

Petitioner, however, continued to

request additional bond hearings.

Tr. 35-36.

SDC

to

guards

brought

See 10/4/16 Trial

petitioner

Judge

On June 30, 2016,

Arrington-Dempsey’s

courtroom for his third bond hearing. Tr. 34-35, 108-109. Because

3

petitioner

was

being

housed

in

a

restrictive

unit,

guards

transported him in hand restraints and leg irons and used a

wheelchair to bring him into the small courtroom at SDC.

At

the

hearing,

Judge

Arrington-Dempsey

denied

Tr. 109.

petitioner’s

request for bond, based on both her prior ruling that petitioner

had an aggravated felony conviction and the fact that petitioner

was by then under a final order of removal, which independently

rendered him ineligible for release on bond.

Tr. 36-37.

As the proceedings concluded, petitioner tried to get out of

his chair and began screaming profanities and threats at Judge

Arrington-Dempsey,

who

Tr. 37-39.

Arrington-Dempsey

audio

Judge

recording

was

device,

seated

which

about

15

to

activated

captured

20

the

feet

courtroom’s

petitioner’s

Tr. 39; see Gov’t Trial Ex. 1 (audio recording).

away.

tirade.

Petitioner

threatened to “fuck [her] up,” “bash [her] fucking head in,” and

“kill [her] if he could ever find [her].”

Tr. 39, 123.

He also

threatened “to have his father and family come in from Jamaica to

kill” her.

Tr. 39.

Judge Arrington-Dempsey “began to shake” in

fear when petitioner repeatedly threatened to kill her.

40.

Tr. 39-

After the hearing, Judge Arrington-Dempsey and the court

security officers contacted the local police.

Tr. 41-42.

Later that day, petitioner saw an SDC nurse and continued to

threaten harm to Judge Arrington-Dempsey and her family.

143.

Tr. 141-

Petitioner told the nurse “something like, ‘I bet by 3:00’

4

* * *

‘I’ll have [the judge’s] husband’s address, I’ll find out

who her husband is, and I’m going to send him a letter and let him

know that if you wish to see your wife you better tell her to learn

to respect me.’”

2.

Tr. 143.

A grand jury in the Middle District of Georgia returned

an indictment charging petitioner with “threaten[ing] to assault

Judge Sandra Arrington-Dempsey, an Immigration Judge at [SDC] in

Lumpkin, Georgia, with the intent to impede, intimidate, and

interfere with Judge Arrington-Dempsey while she was engaged in

the performance of her official duties,” in violation of 18 U.S.C.

115(a)(1).

Indictment 1.

Petitioner proceeded to trial and, at

the close of trial, he moved for judgment of acquittal on the

grounds that Judge Arrington-Dempsey was not an Article III judge

and therefore was not a “United States judge” for purposes of

Section 115(a)(1)(B).

See Gov’t C.A. Br. 11.

The court denied

the motion, and the jury convicted petitioner. Ibid.; Pet. App. 3.

The

district

court

sentenced

petitioner

to

imprisonment and no term of supervised release.

3.

The court of appeals affirmed.

41

months

of

Judgment 2-3.

Pet. App. 1-5.

As

relevant here, the court rejected petitioner’s argument -- which

“present[ed] an issue of first impression for [the court] (and, as

far as [it could] tell, for the country),” id. at 3 -- that his

threats

against

prohibition

in

18

Judge

U.S.C.

Arrington-Dempsey

115(a)(1)(B)

fell

against

outside

the

threatening

to

5

assault a “United States judge” because she was an immigration

judge.

The

Id. at 3-4.

court

of

appeals

first

explained

that

petitioner’s

proposed limitation to Article III judges was inconsistent with

the definition of “United States Judge” in Section 115(c)(3). Pet.

App. 3.

Under that definition, “‘United States judge’ means any

judicial officer of the United States, and includes a justice of

the Supreme Court and a United States magistrate judge.”

(quoting 18 U.S.C. 115(c)(3)).

Ibid.

The court noted that a United

States magistrate judge is an “Article I federal judge,” so the

definition makes clear that “the terms ‘United States judge’ and

‘judicial officer of the United States’ are not limited to federal

judges with life tenure (i.e., Article III judges).”

Ibid.

The court of appeals also rejected petitioner’s argument that

Judge Arrington-Dempsey did not qualify as a “United States judge”

for purposes of Section 115(a)(1)(B) because she was appointed to

office and supervised by the Attorney General.

Pet. App. 3.

The

court noted that Black’s Law Dictionary defines the term “judicial

officer” to include a “hearing officer.” Id. at 4 (quoting Black’s

Law Dictionary 1257 (10th ed. 2014)).

The court also noted that

the statutory definition’s use of the word “includes” indicates

that the specific examples of judicial officers in the definition

-- a Justice of this Court and a magistrate judge -- are not

exhaustive. Ibid. The court also observed that immigration judges

6

“hear[] evidence and arguments, make[] findings of fact, issue[]

rulings

on

appealable.”

matters

Ibid.

of

law,

and

render[]

decisions

which

are

Finally, the court noted that other courts of

appeals “have characterized an immigration judge as a judicial

officer” for various other purposes.

Ibid. (citing examples).

ARGUMENT

Petitioner lists 12 questions presented (Pet. 1-2) 1 but the

only

one

developed

in

the

petition

(Pet.

10)

is

whether

an

immigration judge is a “United States judge” for purposes of

18 U.S.C. 115(a)(1)(B).

Court’s review.

That question does not warrant this

The court of appeals correctly determined that an

immigration judge qualifies as a “United States judge” for the

limited purposes of Section 115(a)(1)(B), that determination does

not conflict with any decision of this Court or any other court of

appeals, and it has no practical significance in this case or any

other.

1.

Accordingly, the petition should be denied.

a.

Section 115(a)(1)(B) prohibits “threaten[ing] to

assault, kidnap, or murder, a United States official, a United

States judge, a Federal law enforcement officer, or an official

whose killing would be a crime under” Section 1114 of Title 18, if

the

threats

are

made

“with

intent

to

impede,

intimidate,

or

interfere with such official, judge, or law enforcement officer

The petition is not paginated. This brief treats the

first page after the cover page as page 1.

1

7

while engaged in the performance of official duties.”

18 U.S.C.

115(a)(1)(B).

judge”

follows:

The

statute

defines

“United

“As used in this section, the term

States

* * *

as

‘United States

judges’ means any judicial officer of the United States, and

includes a justice of the Supreme Court and a United States

magistrate judge.”

18 U.S.C. 115(c)(3).

The court of appeals correctly determined that, in this

context, the term “judicial officer” is broad enough to include

immigration

judges,

who

are

executive

officials

that

perform

adjudicative functions. Pet. App. 5 (quoting 18 U.S.C. 115(c)(3)).

In particular, immigration judges are attorneys appointed by the

Attorney General to serve as “administrative judge[s] within the

Executive Office for Immigration Review” in the Department of

Justice.

8 U.S.C. 1101(b)(4).

Immigration judges preside over

hearings in which they are authorized to “administer oaths, receive

evidence, and interrogate, examine, and cross-examine the alien

and any witnesses,” to “issue subpoenas for the attendance of

witnesses

and

presentation

litigants for “contempt.”

of

evidence,”

and

“to

sanction”

8 U.S.C. 1229a(b)(1); see 8 C.F.R.

1003.10(b). At the conclusion of such hearings, immigration judges

make findings of fact and conclusions of law, see, e.g., 8 U.S.C.

1229a(c)(1)(A), and their decisions can be reviewed on appeal,

see, e.g., 8 U.S.C. 1252(a)(1); 8 C.F.R. 1003.1(b).

Immigration

judges

immigration

thus

function

as

“hearing

officer[s]”

for

8

proceedings.

Pet. App. 4 (quoting the definition of “judicial

officer” in Black’s Law Dictionary, supra).

As the court of appeals also correctly observed, the text of

Section

115(c)(3)

indicates

that

the

term

“judicial

officer”

should not be limited to Article III judges in this particular

context.

Pet.

App.

4.

The

court

explained

that

Section

115(c)(3)’s use of the word “includes” to identify two examples of

a “judicial officer” demonstrates that the list of examples is

“not exhaustive.”

Pet. App. 4 (citing Federal Land Bank of St.

Paul v. Bismarck Lumber Co., 314 U.S. 95, 100 (1941)).

One of

those examples, “a United States magistrate judge,” 18 U.S.C.

115(c)(3), is not an Article III judge.

See 28 U.S.C. 631 et seq.

(appointment and powers of magistrate judges).

The definition

also states that the term “‘United States judge’” includes “any

judicial officer,” 18 U.S.C. 115(c)(3) (emphasis added), and “the

word

‘any’

has

an

expansive

meaning,

that

is,

‘one

or

some

indiscriminately of whatever kind,’” Ali v. Federal Bureau of

Prisons,

552

U.S.

214,

219

(2008)

Gonzales, 520 U.S. 1, 5 (1997)).

(quoting

United

States

v.

The term “any judicial officer”

as used in this particular context is therefore broad enough to

include executive officials who perform adjudicative functions,

such as immigration judges.

Finally,

numerous

the

judicial

court

of

decisions

appeals

refer

correctly

to

observed

immigration

that

judges

as

9

judicial officers.

Pet. App. 4; see, e.g., Samirah v. Holder, 627

F.3d 652, 658 (7th Cir. 2010) (“[A]n immigration judge is a

judicial officer[.]”); Jorgji v. Mukasey, 514 F.3d 53, 59 (1st

Cir. 2008) (“An immigration judge, like all judicial officers,

possesses broad but not unfettered discretion over the conduct of

evidentiary proceedings.”); Islam v. Gonzales, 469 F.3d 53, 55 (2d

Cir. 2006) (“[A]s a judicial officer, an immigration judge has a

responsibility to function as a neutral, impartial arbiter and

must be careful to refrain from assuming the role of advocate for

either party.”); Wang v. Attorney Gen., 423 F.3d 260, 261 (3d Cir.

2005) (“We have stressed previously that as judicial officers,

immigration judges have a responsibility to function as neutral

and

impartial

arbiters.”)

(brackets,

citation,

and

internal

quotation marks omitted); cf. Reno v. Flores, 507 U.S. 292, 308

(1993)

(describing

an

immigration

judge

as

a

“quasi-judicial

officer”). 2

b.

The court of appeals’ decision does not conflict with

any decision of this Court or any other court of appeals.

Indeed,

Petitioner also suggests that Section 115 “protect[s]

members of the official[’s] family and not the official” herself.

Pet. 1 (capitalization omitted).

That contention, however,

conflates Section 115(a)(1)(A), which protects an official’s

family, and Section 115(a)(1)(B), which protects the official

herself. Petitioner was charged and convicted of violating Section

115(a)(1)(B) based on his threats against Judge Arrington-Dempsey,

not her family. Indictment 1. And in any event, the evidence at

trial showed that petitioner also threatened Judge ArringtonDempsey’s husband. See Gov’t C.A. Br. 7.

2

10

the court itself observed that the decision “presents an issue of

first impression for us (and, as far as we can tell, for the

country).”

Pet. App. 3.

Petitioner errs in suggesting (Pet. 10) that the decision

below conflicts with the Ninth Circuit’s decision in Lopez-Telles

v. INS, 564 F.2d 1302 (1977) (per curiam).

In that case, the Ninth

Circuit affirmed an immigration judge’s determination that the

judge lacked the authority to “terminate deportation proceedings

for ‘humanitarian reasons.’”

Id. at 1303.

The court explained

that the relevant statutes and regulations did not confer on

immigration judges a freestanding power to terminate proceedings

for humanitarian reasons, see id. at 1304, and that immigration

judges could not, as the alien argued, exercise “the ‘inherent’

powers of the [federal] judiciary,” ibid.

The Ninth Circuit’s decision Lopez-Telles did not address the

terms “United States judge” or “judicial officer” as used in

18 U.S.C. 115(a)(1)(B) and (c)(3).

Indeed, Lopez-Telles predates

the 1984 enactment of 18 U.S.C. 115.

See Comprehensive Crime

Control Act of 1984, Pub. L. No. 98-473, Tit. II, § 1008(a),

98 Stat. 2140.

Nor does the Ninth Circuit’s observation that

immigration judges are “distinct” from “those judges ordinarily

deemed the federal judiciary,” Lopez-Telles, 564 F.2d at 1304,

suggest that the Ninth Circuit would reach a different result in

a future case involving Section 115 than the result the Eleventh

11

Circuit reached in this case.

By using the phrase “any judicial

officer” and the example of a magistrate judge, Congress clearly

indicated in Section 115(c)(3) that it intended the statute to

sweep beyond Article III judges.

c.

In any event, certiorari is unwarranted for the further

reason that the question whether an immigration judge qualifies as

a “United States judge” for purposes of Section 115 is of no

practical significance.

Even if an immigration judge is not a

“United States judge,” threats against an immigration judge would

be independently encompassed by other language in the statute.

In

particular,

“an

Section

115(a)(1)(B)

prohibits

threatening

official whose killing would be a crime under” section 1114 of

title

18.

18

U.S.C.

115(a)(1)(B).

Section

1114,

in

turn,

prohibits killing “any officer or employee of the United States

* * *

while such officer or employee is engaged in or on account

of the performance of official duties.”

18 U.S.C. 1114.

An

immigration judge is plainly an “officer or employee of the United

States,” and petitioner threatened Judge Arrington-Dempsey while

she was engaged in the performance of her official duties.

See

Gov’t C.A. Br. 26-28 (arguing, in the alternative, that Judge

Arrington-Dempsey is an “official whose killing would be a crime

under section 1114”) (citation omitted); see also United States v.

Bankoff, 613 F.3d 358, 369 (3d Cir.) (“Congress used ‘official’ in

§ 115 as a general term to incorporate by reference all the

12

‘officers,’ ‘employees,’ ‘members,’ and ‘agents’ of the federal

departments and agencies listed in § 1114.”), cert. denied, 562

U.S. 1086 (2010).

And the jury in this case was instructed to

determine whether the defendant threatened “a judge or official.”

D. Ct. Doc. 47, at 6 (Oct. 5, 2016) (emphasis added).

2.

Petitioner

lists

numerous

other

(Pet. 1-2) that do not concern 18 U.S.C. 115.

questions

presented

Petitioner does not

develop any of those questions in the petition, and they were

neither pressed nor passed on below. 3

This Court’s usual practice

is to “refrain from addressing issues not raised in the [c]ourt of

[a]ppeals,” EEOC v. Federal Labor Relations Auth., 476 U.S. 19, 24

(1986) (per curiam), and petitioner identifies no reason to depart

from that practice here.

See United States v. Williams, 504 U.S.

36, 41 (1992) (“Our traditional rule

certiorari

* * *

* * *

precludes a grant of

when ‘the question presented was not pressed or

passed upon below.’”) (citation omitted).

Petitioner identifies one challenge to the district

court’s calculation of his advisory Sentencing Guidelines range.

Pet. 2 (question 12). Although petitioner objected to some aspects

of his Guidelines calculation in the lower courts, see Sentencing

Tr. 47-48; Pet. C.A. Br. 31-47, he did not raise his current

objection to the six-level enhancement under Section 3A1.2(a) and

(b) of the Guidelines, which applies when the victim is a

government officer or employee and the conviction was motivated by

the officer’s status.

3

13

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

BRIAN A. BENCZKOWSKI

Assistant Attorney General

AMANDA B. HARRIS

Attorney

FEBRUARY 2019