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Murdoch v. Castro, No. 05-55665 (6-21-10) (en banc) (Tashima for plurality of Kleinfeld, Ikuta, Callahan, and N. Smith; Silverman concurrence; Kozinski dissents with W. Fletcher and Wardlaw; Thomas dissents with McKeown). The petitioner here was convicted of a murder 13 years before. The conviction was based on shaky eyewitness identifications and testimony by a co-defendant, who said he was pressured by the state. The co-defendant stated he had written a letter to the prosecutor saying he was coerced and that the petitioner was innocent. The letter was not disclosed to the defense because of attorney-client privilege. In this en banc decision, the 9th holds that no Supreme Court decision has held that the attorney-client privilege must give way under certain circumstances to the Confrontation Clause. Thus, the state's decision denying the challenge was not contrary to Supreme Court decisions. The state, moreover, and federal courts have held that any error was harmless. Silverman concurs, stating that the defense counsel erred by not moving to strike the testimony of the co-defendant for failure to be able to cross. Kozinski writes a blistering dissent, lambasting the state trial court for pressuring the co-defendant to testify at the petitioner's trial and he (the court) would give him a break at sentencing. Kozinski derides the state courts for missing the issue, and failing to address it as required; he attacks the majority for misreading AEDPA and for a crabbed view of precedents; and he laments the failure of the habeas system to address the wrong done. Thomas joins and dissents also for finding or error even if the state courts had addressed.

U.S. v. Batson, No. 09-50238 (6-21-10) (Canby with Hall and O'Scannlain). The 9th considers whether the court can order restitution for title 26 (IRS) offenses. The answer is "yes" but only for the count of conviction if it is not for a conspiracy or scheme. The defendant plead guilty to aiding and abetting one fraudulent tax return. She was fined and ordered to pay almost one million dollars in restitution. The restitution for the single count was around $12,500. The defendant appealed, arguing that the VWPA and the MVRA does not authorize such restitution. The VWPA is limited by Hughey to amounts arising from the count of conviction (except conspiracy) and the MVRA applies to crimes of violence or crimes against property. This is true, but the court, holds the 9th, can order restitution under probation and supervised release terms. The restitution, though, again is limited to just the count of conviction, and so the sentence is vacated and remanded.

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