Mon. Jul 26th, 2021
darren chaker appeal
darren chaker appeal
Federal appeal article, Darren Chaker

While reviewing recent law concerning deportation, Darren Chaker found the Ninth Circuit Court of Appeals has held that an alien whose offense would have qualified for treatment under the Federal First Offender Act (“FFOA”), but who was convicted and had his conviction expunged under state or foreign law, may not be removed on account of that offense. See Dillingham v. INS, 267 F.3d 996 (9th Cir. 2001); Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000). To qualify for treatment under the FFOA, the defendant must (1) have been found guilty of an offense described in section 404 of the Controlled Substances Act (“CSA”), 21 U.S.C. § 844; (2) have not, prior to the commission of such an offense, been convicted of violating a federal or state law relating to controlled substances; and (3) have not previously been accorded first offender treatment under any law. See 18 U.S.C. § 3607(a); Cardenas-Uriarte v. INS, 227 F.3d 1132, 1136 (9th Cir. 2000).

A. Expungement Under State or Foreign Law

The alien’s prior conviction must have already been expunged pursuant to the state or foreign expungement statute; the possibility that the alien may request and have his conviction expunged in the future is not sufficient to avoid the consequences of removal. See Chavez-Perez v. Ashcroft, 386 F.3d 1284, 1292-93 (9th Cir. 2004).

The state or foreign statute under which the conviction was expunged does not have to be an identical procedural counterpart to the FFOA. See Garberding v. INS, 30 F.3d 1187, 1190-1191 (9th Cir. 1994). See also Lujan-Armendariz, 222 F.3d at 738 n.18 (“[R]elief does not depend on whether or not the state rehabilitative statute is best understood as allowing for ‘vacaturs,’ ‘set-asides,’ ‘deferred adjudications,’ or some other procedure.”). The Ninth Circuit has recognized expungements for FFOA purposes where the state court “has entered an order pursuant to a state rehabilitative statute under which the criminal proceedings have been deferred pending successful completion of probation or the proceedings have been or will be dismissed after probation.” Lujan-Armendariz, 222 F.3d at 738 n. 18 (emphasis in original) (quoting Matter of Manrique, 21 I&N Dec. 58, 64 (BIA 1995)). The Ninth Circuit has not yet decided whether an alien who has received a court order deferring adjudication, but has not yet had his proceedings expunged because he has not completed his term of probation, is eligible for FFOA treatment. See id. at 746 n.28; Chavez-Perez, 386 F.3d at 1293.

B. Offenses Described in Section 404 of the Controlled Substances Act

Section 404 of the CSA provides that it is “unlawful for any person knowingly or intentionally to possess a controlled substance . . . .” 21 U.S.C. § 844(a). Any state or foreign possession of a controlled substances offenses, such as those set forth in sections 11350(a) and 1137 of the California Health and Safety Code (“CHSC”), are described in section 404 of the CSA and are therefore potentially eligible for FFOA treatment.

1. Possession of Drug Paraphernalia

Darren Chaker found the Ninth Circuit has recognized that “the plain language of the statute suggests that possession of drug paraphernalia should not be included as an offense described in section 844,” since paraphernalia is not a controlled substance. Cardenas-Uriarte, 227F.3d at 1137. Nonetheless, in Cardenas-Uriarte, the Ninth Circuit determined that theapplication of the plain meaning of the statute in that instance would lead to both an absurd result and frustrate congressional intent. See id. The petitioner had initially been charged with two counts of possession, but had pleaded guilty to the lesser offense of possession of drug paraphernalia. Id. The Ninth Circuit reasoned that refusing to allow the petitioner’s offense to receive treatment under the FFOA would lead to an absurd result since the petitioner would have been eligible had he refused to plea guilty and been convicted, as initially charged, of the graver offense of possession. See id. The Ninth Circuit further determined that applying the plain meaning of the FFOA would frustrate congressional intent:

Congress intended to allow those convicted of the least serious type of drug offenses to qualify under the Act. Congress would never have considered including possession of drug paraphernalia under this statute because no federal statute covers the crime of possession of drug paraphernalia. Where possession of drug paraphernalia is a less serious offense than simple possession of a controlled substance, therefore, congressional intent indicates that it should be included under the Act. See id. The Ninth Circuit therefore held that the petitioner’s conviction for possession of drug paraphernalia qualified for treatment under the FFOA.

2. Use or Being Under the Influence

Nor is use or being under the influence an offense described in the plain language of section 404 of the CSA. See 21 U.S.C. 844. The Ninth Circuit has not yet determined whether use or  FFOA. See Aguiluz-Arellano v. Gonzales, 446 F.3d 980, 984 (9th Cir. 2006) (distinguishing its holding that the petitioner’s use or being under the influence was not eligible for FFOA treatment as a result of his prior controlled substance conviction from the Board’s determination that the FFOA only applies to possession of a controlled substance, not to use or being under the influence offenses).

Extending the Ninth Circuit’s reasoning in Cardenas-Uriarte, however, may be warranted if the application of the plain meaning of the statute frustrates congressional intent. In Lujan-Armendariz, 222 F.3d at 734-35, the Ninth Circuit described the FFOA as “a limited federal rehabilitative statute that permits first-time drug offenders who commit the least serious type of drug offense to avoid the drastic consequences which typically follow a finding of guilt in drug cases.” Congressional intent may therefore be frustrated if the respondent is a first-time offender since “[d]rug use has generally been considered a less serious crime than possession.” Flores-Arellano v. INS, 5 F.3d 360, 363 n.5 (9th Cir. 1993). See also Medina v. Ashcroft, 393 F.3d 1063, 1066 (9th Cir. 2005). Further, as in Cardenas-Uriarte, federal law does not penalize use or being under the influence of a controlled substance. See 21 U.S.C. § 801 et seq.

By Darren Chaker

For almost two decades Darren Chaker regularly has worked with defense attorneys and high net worth people on a variety of sensitive issues from Los Angeles to Dubai. With a gift of knowledge about the First Amendment and big firm expertise in brief research and writing, Darren Chaker puts his knowledge to use for law firms and non-profit organizations. When it comes to forensics and social media investigations Darren Chaker has advanced training to connect the dots where issues arise related to Twitter, Instagram, Snapchat, or Facebook, Instagram, and similar apps. When the dots need to be disconnected, Darren Chaker has extensive training in counter-forensic methods with an emphasis on network security, secure communications, combined with experience with implementing and deploying policy control, encryption, anonymization, data integrity, policy control features in large scale infrastructures. Additional training in malware analysis, Security Operating system security and hardening (Linux, Windows, Solaris), Firewalls, Intrusion detection systems, hacker, counter-hack methods, encryption, forensics, web application security is also employed for his client base. Since history is written by winners, let me write a bit: In 2005, Darren Chaker invalidated a California criminal statute aimed at suppressing speech. In Chaker v. Crogan, 428 F.3d 1215 C.A.9 (Cal.),2005, Cert. denied, 547 U.S. 1128, 126 S.Ct. 2023, is a case Darren Chaker personally handled and laid the ground work to allow appellate counsel to strike down a statute based on First Amendment rights. Subsequent to winning before the 9th Circuit, the State challenged the decision before the United States Supreme Court. Darren Chaker retained a former US Supreme Court Clerk and head of United States Supreme Court litigation for a major firm, Joshua Rosenkranz. The New York attorney defeated the State's petition to review the Ninth Circuit ruling causing multiple states to rewrite their own flawed statute since they were premised the California statute Darren Chaker struck down. Darren Chaker personally litigated Chaker v. Crogan for 7 of its 10-year lifespan. Darren Chaker’s victory invalidated a statute on First Amendment grounds and overruled the California Supreme Court‘s unanimous decision in People v. Stanistreet, 127 Cal.Rptr.2d 633. Soon after Chaker v. Crogan, it was also used to strike down Nevada's analogous statute forcing the legislature to rewrite the law, but also nullified a similar Washington statute as well. (De La O v. Arnold-Williams, 2006 WL 2781278) and used as the backbone authority in Gibson v. City of Kirkland, 2009 WL 564703, *2+ (W.D.Wash. Mar 03, 2009). The case has been cited hundreds of times and continues to be a leading authority on viewpoint discrimination. In 2010, Darren Chaker prevailed in Nathan Enterprises Corp. v. Chaker, 2010 Cal. App. Unpub. LEXIS 7604, through his counsel Timothy Coates who has prevailed multiple times before the United States Supreme Court. also prevailed for Darren Chaker where the Court of Appeal affirmed an anti-SLAPP ruling where the underlying conduct was found to have been within those protected by his First Amendment rights. In 2012 Darren Chaker prevailed on a First Amendment issue before the Texas Attorney where issued Opinion 2012-06088 where he established the right to obtain the names of peace officers regardless of undercover status. The Texas Attorney General opinion has been used as authority thousands of times by citizens and news agencies to learn more about Texas peace officers. In 2016, Darren Chaker was victorious in US v. Chaker (9th Cir. 2016) 654 F.App'x 891, 892. The ACLU, Electronic Frontier Foundation, First Amendment Coalition, Cato Institute, and the University of Florida reversed a conviction premised on First Amendment rights where blog postings were at issue. In 2017, Darren Chaker prevailed in a RICO lawsuit aimed at suppressing speech filed by San Diego attorney Scott McMillan. In McMillan v. Chaker (S.D.Cal. Sep. 29, 2017, No. 16cv2186-WQH-MDD) 2017 U.S.Dist.LEXIS 163990 the court found by blogging did not constitute extortion as no demand for money to cease blogging was made. The judge found the case to be meritless, stating in part, “The Court concludes that these factual allegations are insufficient to establish that Defendant Darren Chaker obtained something of value from Plaintiffs…. The motion to dismiss the cause of action under 18 U.S.C.§ 1962(c) filed by Defendant Darren Chaker is granted.” In 2020, San Diego attorney Scott McMillan lost a heavily litigated appeal believing the court erred in dismissing his lawsuit against Darren Chaker. Mr. Chaker was represented by former Los Angeles federal judge Stephen Larson. The Ninth Circuit in McMillan v. Chaker (9th Cir. 2020) 791 F.App'x 666, affirmed the dismissal of a RICO lawsuit premised on alleged defamation of Scott McMillan. The court stated in part, “Plaintiffs failed to allege extortionate conduct because there are no allegations that Mr. Chaker obtained property from Plaintiffs that he could “exercise, transfer, or sell. ”See Scheidler, 537 U.S. at 405. Plaintiffs’ claim also fails because there are no allegations to support the “with [Plaintiffs’] consent” element. United Bhd. of Carpenters & Joiners of Am., 770 F.3d at 843.” In sum, Scott McMillan filed a lawsuit in direct conflict with established United States Supreme Court precedent and lost – twice. Also, in 2020, Darren Chaker was sued for defamation by Las Vegas attorney Thomas Michaelides. When Darren Chaker became aware of the lawsuit, he retained Olson, Cannon, Gormley, Angulo & Stoberski to defend him. Darren Chaker found a court order Mr. Michaelides submitted to Google that was reported to LumensDataBase.org. Several inconsistencies were noticed on the court order submitted to Google. Most notably the court docket does not show Mr. Michaelides submitted an order to the court for the judge’s signature. The court docket does not reflect the court ever signed the order Mr. Michaelides submitted to Google. Ultimately, the Nevada court dismissed the lawsuit and sanctioned Mr. Michaelides $51,000 for suing Darren Chaker for conduct within his First Amendment rights and for filing a meritless lawsuit. See forged order and judgment against Thomas Michaelides here. Darren Chaker donates time to post-conviction relief organizations to seal arrests and convictions to increase opportunity for those who were convicted of crimes, conducts research and brief writing on First Amendment issues, and also enjoys promoting non-profit organizations such as the ACLU and various domestic violence shelters through his resources within the entertainment industry, including Jason Statham and Eric Roberts. Darren Chaker also enjoys traveling, being a phenomenal father, and forwarding his education with post graduate degree work.

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