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Ninth Circuit Blog 
Case Summaries and Commentary by Federal Defenders of the Ninth Circuit
Post Frequency: 23.7/day Last Entry: November 19, 2009 at 18:14:00 Recent Entries: 261
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U.S. v. Mahan, No. 08-30475 (11-16-09).
Posted on November 19, 2009U.S. v. Mahan, No. 08-30475 (11-16-09). An adult son staying in touch with his mother is commendable; calling her to assess market interest in stolen firearms says something else. In any event, defendant called mom to see if there was interest in the stolen weapons...
Case o' The Week: Raising a Ruckes Over Car Searches: Ruckes and "Inevitable Discovery" Post-Gant
Posted on November 14, 2009The Supreme Court's decision in Gant squelched the much-abused Belton rule, which gave the police carte blanche to search a car when a suspect within was arrested -- even if the suspect posed no danger, and was actually far away from the vehicle, in cuffs and safe in the back of a patrol car...
U.S. v. Ruckes, No. 08- 30088 (11-9-09).
Posted on November 10, 2009U.S. v. Ruckes, No. 08- 30088 (11-9-09). This is a Fourth Amendment "fall out" from Gant, and the new test for searches of cars. Police stopped defendant here for driving 15 miles over the speed limit. A records check indicated that he was also driving on a suspended license...
Case o' The Week: Ninth Adopts New Abuse of Discretion Standard, Hinkson
Posted on November 07, 2009One reporter described the Ninth Circuit's recent en banc decision in Hinkson thus: "Conservatives on the 9th U.S. Circuit Court of Appeals rode to the rescue of one of their own on Thursday, finding that Judge Richard Tallman didn't botch a bizarre murder-for-hire case in Idaho...
U.S. v. Hinkson, No. 065-30303
Posted on November 05, 2009U.S. v. Hinkson, No. 065-30303 (11-5-09) (en banc). The 9th, sitting en banc, recasts its "abuse of discretion" standard of review. The test for "abuse of discretion" is now as follows:Our newly stated "abuse of discretion" test requires us first to consider whether the district court identified the correct legal standard for decision of the issue before it...
U.S. v. Garcia-Villalba, No. 05-30506
Posted on November 04, 2009U.S. v. Garcia-Villalba, No. 05-30506 (11-2-09). The 9th affirms suppression of evidence gathered by a wiretap. The DEA undertook an investigation of a drug conspiracy operation in Washington state. A wiretap was sought when, according to the affidavit, other means of investigation, such as surveillence, trash, and undercover operatives, hit a dead end...
Case o' The Week: Obscene in Oshkosh? Perverse in Poughkeepsie? Kilbride and the National Obscenity Standard
Posted on October 31, 2009Federal obscenity statutes require the jury to determine whether the image at issue is "obscene" using "community standards." When there's no control over where the image is sent geographically, however, (like in a spam e-mail), what is the relevant "community" whose standards are to be used to identify "obscene" images? Even in the Ninth Circuit, there's a pretty wide range in "communities" between, say, San Francisco and San Diego, Missoula and Mill Valley...
U.S. v. Kilbride, No. 07-10528
Posted on October 29, 2009U.S. v. Kilbride, No. 07-10528 (10-28-09). Is the standard for obscenity the local community standard? Not when there is a federal statute involved, in which case the standard has to be a national one. In this case, the defendant was convicted of spam charges, obscenity charges, and money laundering...
U.S. v. Rivera-Alonzo, No. 08-10081
Posted on October 26, 2009U.S. v. Rivera-Alonzo, No. 08-10081 (10-26-09). The defendant was convicted of assault on a federal officer with a dangerous weapon. The incident arose when the defendant crossed into the United States near San Luis, Arizona. A Border Patrol Agent sought to stop the defendant...
Case o' The Week: Ninth Airs Supreme's Dirty Laundry (Money Laundry Analysis, that is): Van Alstyne
Posted on October 25, 2009Who has the temerity to call out the Supreme Court for a fractured decision that does far more to muddy money laundering cases, than to clarify them? Judge Marsha "Calls 'em Like She Sees 'em" Berzon, in United States v. Van Alstyne,__ F.3d __, No. 07-50105, 2009 WL 3381144 (9th Cir...
Tran-scending an En Banc Call
Posted on October 23, 2009United States v. Tran, __ F.3d __, No. 07-30270 (9th Cir. Oct. 23, 2009) (ord. denying rehearing en banc.)In June of 2009 we blogged that rarest of beasts: a good conspiracy decision. See blog here, discussing United States v. Tran__ F.3d __, No. 07-30270, 2009 WL 1773149 (9th Cir...
U.S. v. Van Alstyne, No. 07-50105
Posted on October 22, 2009U.S. v. Van Alstyne, No. 07-50105 (10-22-09). The 9th struggled to make precedential sense out of U.S. v. Santos, 128 S.Ct. 2020 (2008), which dealt with the meaning of the money laundering statute. The 9th (Berzon joined by Hawkins and Clifton) sought to the holding from the cobbling together of the plurality and Stevens concurrence...
U.S. vs. Todd, No. 08-30360 (10-20-09).
Posted on October 20, 2009U.S. vs. Todd, No. 08-30360 (10-20-09). The statute for the Trafficking Victim's Protection Act (TVPA) provides imprisonment of 15 years to life if the offense was "effected by fraud, force, or coercion." 18 USC 1591(b)(1). The punishment is 10 years to life if the offense was "not so effected" and the victim was 14 to 18...
U.S. v. Wesson, No. 08-30177 (10-19-09).
Posted on October 19, 2009U.S. v. Wesson, No. 08-30177 (10-19-09). What's worse than being sentenced for a crack offense? Being sentenced as a career offense. The 9th joins its sister circuits (1st, 2nd, 3rd, 6th, 7th, and 8th) in holding that because a defendant was sentenced as a career offender, he is thus not eligible for a reduction of his prior sentence under amendment 706...
Case o' The Week: FRE-dom's Just Another Word for Nothing Left to Lose -- Estrada-Eliverio
Posted on October 18, 2009Another slow week in the Ninth gives us a chance to reach back to the recent, and disappointing, illegal reentry decision in United States v. Estrada-Eliverio, __ F.3d __, No. 07-05191, 2009 WL 3163526 (9th Cir. Oct. 5, 2009), decision available here...
Search & Seizure Update
Posted on October 13, 2009For many years, our office has produced a search and seizure outline designed to cheer up those Eeyores of the criminal defense bar who believe the Fourth Amendment is a dead letter. While acknowledging the hits privacy rights have taken, the outline provides counterpoints demonstrating that judges have stood up for the Fourth Amendment even though ?the safeguards of liberty have frequently been forged in controversies involving not very nice people? (Judge Boochever quoting Justice Frankfurter in Munoz, 701 F...
Case o' The Week: The Rain in Spain Falls Mainly On the Plain (Error Review): Rex Harrison, Prosecutorial Misconduct, and Assault
Posted on October 12, 2009Rex Harrison (right), a charming gentlemen, a master of etiquette, infallibly polite in every respect, "the milk of human kindness by the quart in every vein." United States v. Rex Harrison, Slip. Op. 14403, 14407 (9th Cir. Oct. 9, 2009), decision available here...
U.S. v. Estrada-Eliverio, No. 07-50191
Posted on October 06, 2009U.S. v. Estrada-Eliverio, No. 07-50191 (10-5-09), decision available here. The mantra in evidence is "authenticate, authenticate, authenticate." The 9th made it a bit easier for the government to do so, at least with public documents in immigration cases, so long as the witness says the magic words of "it looks the same...
Case o' The Week: "A Masterpiece of Craftsmanship" - Paul, "Unreasonable" Guideline Sentences, and Mem Dispos
Posted on October 04, 2009The Ninth Circuit denies an en banc call for an opinion that is (in our view, if not Judge O'Scannlain's) a "masterpiece of craftsmanship" -- finding an in-guideline sentence "unreasonable" in one of the few post-Booker sentencing review cases to do so...
U.S. v. Ruehle, No. 09-50161 (9-30-09).
Posted on October 02, 2009U.S. v. Ruehle, No. 09-50161 (9-30-09). Defendant was the financial officer of a company that was accused of fraud via backdating stock options. The story broke in the Wall Street Journal, and the civil suits soon started being filed. The company's lawyers met with the board, and individually with officers...
Case o' The Week: The Maltese Falcon in San Diego, Fourth Amendment "Protective Sweeps"
Posted on September 27, 2009It was a dark night in the City that Never Sleeps. It looked like Lemus was still living there, see? But if the copper remembered right, other family lived there too. Could be just another Dashiell Hammett rag -- but it wasn't. It was United States v...
U.S. v. Bragg, No. 08-10221 (9-23-09).
Posted on September 24, 2009U.S. v. Bragg, No. 08-10221 (9-23-09). Is a remand for "making a better record" a form of reasonableness determination light? It sure looks that way in this case. The defendant had tax problems in the year 2000. Okay, a bit more severe than just tax problems because he ran a business that was supposed to take care of employment taxes for businesses that subscribed...
U.S. v. Lemus, No. 08-50403 (9-22-09).
Posted on September 22, 2009U.S. v. Lemus, No. 08-50403 (9-22-09). It was a room with a view. The question was whether the police could search it as adjacent to the site of arrest to protect themselves? The 9th said "yes." The police had an arrest warrant for the defendant. They drove to his apartment, which was in a small complex, where other family members lived...
Case o' The Week: Don't Trust Prison Cooks - Contreras and the Abuse of Trust Adjustment
Posted on September 21, 2009Do the cooks that make prison "food" enjoy a special "position of trust?" Not so much, says the Ninth in a good new sentencing case. United States v. Contreras,__ F.3d __, No. 08-50126, 2009 WL 2960623 (9th Cir. Sept. 17, 2009), decision available here...
Hamilton v. Ayers, No. 06-9908
Posted on September 18, 2009Hamilton v. Ayers, No. 06-9908 (9-18-09). The 9th grants sentencing relief in this pre-AEDPA petition. The petitioner killed his wife for the insurance money. His trial lawyer had little experience (none capital) and mitigation and sentencing preparation appeared to be an afterthought...
U.S. v. Contreras, No. 08-50126
Posted on September 17, 2009U.S. v. Contreras, No. 08-50126 (9-17-09). The 9th is over the Hill. That is, this panel has overruled U.S. v. Hill, 915 F.2d 502 (9th Cir. 1990), which required an adjustment for abuse of a position of trust if the defendant had "the freedom to commit an offense...
U.S. v. Chaney, No. 08-10298 (9-15-09).
Posted on September 15, 2009U.S. v. Chaney, No. 08-10298 (9-15-09). Defendant asked the district court for a reduced sentence based upon the change in crack guidelines. The defendant had received a 103 month sentence rather than a 235 month sentence based on cooperation. The plea was a stipulation, in which the government had argued for the sentence against a PSR that had higher guidelines because the government felt a 9-year sentence was appropriate...
Case o' The Week: No Acceptance for (Un)Appealing Decision, Johnson
Posted on September 14, 2009In 2003, a Republican Congress turned the Sentencing Guidelines system on its head with the PROTECT Act and the Feeney Amendment - an amendment sponsored by then-freshman Representative Tom Feeney, who is now under a corruption investigation.One of the most subtle, but insidious, aspects of the PROTECT Act was stripping the power to determine "acceptance of responsibility" from its traditional home with the judiciary...
Schad v. Ryan, No. 07-99005 (9-11-09).
Posted on September 14, 2009Schad v. Ryan, No. 07-99005 (9-11-09). The 9th (Schroeder and Reinhardt) remands a capital habeas for an evidentiary hearing to determine whether petitioner was diligent in his efforts to develop the state record during state post-conviction proceedings...
U.S. v. Bride, No. 08-30266 (9-8-09).
Posted on September 09, 2009U.S. v. Bride, No. 08-30266 (9-8-09). The defendant was sentenced in 2006 for crack offenses to a stipulated sentence under 11(c)(1)(C) of 19 years. His guideline range was at level 42 (360 to life), and the sentence was 11 years under the range because of 3553 factors...
Case o' The Week: Deja Vu, All Over Again - Knight and Supervised Release Rules
Posted on September 05, 2009In the 1993 comedy, "Groundhog Day," the hero (played by Bill Murray) finds himself waking up every morning to the exact same day, in the exact same place, over and over again -- never breaking free of the endlessly repeating loop.Defendant Douglas Knight had a similar experience -- except his loop was supervised release and jail...
U.S. v. Knight, No. 08-30372 (9-2-09).
Posted on September 03, 2009U.S. v. Knight, No. 08-30372 (9-2-09). The Knight may be darkest before the dawn, but under this holding, the dawn, free of SR, will be a long time coming. Here, the 9th considers the 2003 amendment to the SR statute, 3583, and whether a court, upon SR revocation, must reduce the maximum term of imprisonment by prior terms of imprisonment...
U.S. v. Inzunza, No. 05-50902 (9-1-09).
Posted on September 02, 2009U.S. v. Inzunza, No. 05-50902 (9-1-09). This is an appeal from a conviction of a former San Diego City Council member, and a government's appeal from acquittals and a new trial for another Council member (Zucchiet). The 9th (Canby joined by Bybee and M...
U.S. v. Gallenardo, No. 07-30414
Posted on August 31, 2009U.S. v. Gallenardo, No. 07-30414 (8-28-09). The 9th affirmed a child porn conviction and sentence over challenges to the interstate jurisdiction nexus, reference to other acts, and the imposition of a mandatory life term. As to the last challenge,the sentence was imposed under 18 U...
Case o' The Week: Eating Crow, Comprehensive Drug Testing En Banc Decision
Posted on August 28, 2009On more than one occasion, we've bemoaned the irony that the Ninth Circuit is home to the most technologically-advanced industries (and arguably, users) in the world, yet its digital search law is bogged down in old and inapposite analogies to briefcases and filing cabinets...
U.S. v. Guzman-Mata, No. 08-10061
Posted on August 27, 2009U.S. v. Guzman-Mata, No. 08-10061 (8-27-09). The 9th (N. Smith joined by Noonan and Berzon) hold that alien smuggling under 8 U.S.C. 1324(a)(1)(A) is categorically an "alien smuggling offense" triggering a +16 level adjustment under the Guidelines, 2L1...
U.S. v. Comprehensive Drug Testing,
Posted on August 26, 2009U.S. v. Comprehensive Drug Testing, Inc., No. 05-10067 (8-26-09) (en banc). This is the en banc appeal related to the steroids in baseball litigation. The box score has a majority of this en banc (Kozinski writing) laying down new guidelines when it comes to search warrants for electronic information...
U.S. v. George, No. 08-30339 (8-25-09).
Posted on August 25, 2009U.S. v. George, No. 08-30339 (8-25-09). The 9th (Thompson joined by Canby and Callahan) rejects constitutional challenges to SORNA. The 9th held that a defendant convicted of a federal crime had to register, and could not argue that he did not have to register because his state had yet to implement SORNA...
Case o' The Week: Encore, Encore - Prosecutorial Misconduct Means Brocade Retrial (maybe), Reyes
Posted on August 24, 2009Just how many Ninth Circuit prosecutorial misconduct decisions must come down in one week to deter improper AUSA closing arguments?More than two, apparently. United States v. Reyes,_ F.3d __, No. 08-10047, 2009 WL 2501920 (9th Cir. Aug. 18, 2009), decision available here...
U.S. v. Harrison, No. 08-10391
Posted on August 19, 2009U.S. v. Harrison, No. 08-10391 (8-19-09). Is this a case about "My Fair Constitution?" The defendant -- named Rex Harrison -- thought it would be lovely if he parked somewhere, far away from the cold night air. He did so at a military beach on Oahu...
U.S. v. Thongsy, No. 08-30198 (8-17-09).
Posted on August 18, 2009U.S. v. Thongsy, No. 08-30198 (8-17-09). Just because one curls up with a loaded firearm, does it mean possession in furtherance of a drug crime? It sure does when the weapon is on the defendant's sleeping bag (between two others), in a tent, surrounded by the wilderness and a large scale marijuana growing operation...
Case o' The Week: Fourth Amendment Victory a Red "Herring?" - Monghur and Jail Calls
Posted on August 16, 2009Judge Tallman writes for the Ninth and creates a new Circuit rule, recognizing a privacy right in a closed container despite a suspicious jail call and reversing the denial of a Fourth Amendment motion. United States v. Monghur,__ F.3d __, No. 08-10351, 2009 WL 2434396 (9th Cir...
Richter v. Hickman, No. 06-15614
Posted on August 11, 2009Richter v. Hickman, No. 06-15614 (8-10-09)(en banc). In an en banc decision, the 9th (Reinhardt writing) granted petition's writ for IAC. The petitioner was alleged to have committed murder in a robbery gone bad. He alleged self defense. The case turned on circumstantial and forensic evidence...
Case o' The Week: Right Target, Wrong Number, No Problem: Title III and Reed
Posted on August 10, 2009The wiretap target is R--, but turns out that the line really belongs to J-- (and is, not surprisingly, primarily used by J--). Close enough, reassures the Ninth in a disappointing new Title III case. United States v. Reed, No. 06-50040, 2009 WL 2366556 (9th Cir...
U.S. v. Vanderwerfhorst, No. 07-30336
Posted on August 10, 2009U.S. v. Vanderwerfhorst, No. 07-30336 (8-6-09). In this sentencing appeal, the defendant argues that the court did not comply with the necessary procedures, such as Rule 32 notice, nor did the court make the necessary findings. The 9th (Tallman joined by Beezer and M...
U.S. v. Garcia-Villegas, No. 08-50503
Posted on August 04, 2009U.S. v. Garcia-Villegas, No. 08-50503 (8-4-09). This is an appeal from a 1325 misdemeanor conviction for attempted entry. The defendant was seen hopping the fence. He subsequently gave a statement that he was an alien. The question for the 9th was whether mode-of-entry evidence corroborated a defendant's admission of alienage...
Moore v. Czerniak, No. 04-15713
Posted on August 03, 2009Moore v. Czerniak, No. 04-15713 (7-28-09). The 9th issues an order and opinion that reaffirms its decision granting petitioner's habeas for IAC. The 9th denied en banc review, though over two voracious dissents. The petitioner confessed to a murder...
Case o' The Week: Failed Conspiracy Good Enough for Successful Prosecution, Mincoff
Posted on August 02, 2009Is a defendant guilty of conspiring to distribute cocaine when he never actually possessed the cocaine - indeed, when the cocaine sought was never actually delivered?Yep. United States v. Mincoff, No. 08-50058, 2009 WL 2342031 (9th Cir. July 31, 2009), decision available here...
Case o' The Week: Unauthorized Search Does Not Compute - Payton, the Fourth Amendment and Computer Searches
Posted on July 26, 2009We've often bemoaned the irony that the Ninth Circuit is home to so many cutting-edge technologies, yet the Ninth's Fourth Amendment jurisprudence on cyber searches lags years (or decades, or centuries) behind. See, e.g., Giberson blog here.Happily, this week Judge William Canby (above, back row, second from right) gets the Ninth back on track in an admirable new Fourth Amendment decision on computer searches, United States v...
U.S. v. Nobari, et al., No. 06-10465
Posted on July 24, 2009U.S. v. Nobari, et al., No. 06-10465 (7-24-09). So, in this drug conspiracy case, the 9th finds that the prosecution improperly argued racial stereotypes and ethnic generalizations, appealed to prejudice, and in argument asked the jury to send a message and not let the government down...
U.S. v. Colson, No. 08-10287 (7-23-09).
Posted on July 23, 2009U.S. v. Colson, No. 08-10287 (7-23-09). In an order, the 9th lowers the boom on Lowe, 136 F.3d 1231 (9th Cir. 1998). In Lowe, the 9th held that a district court's discretionary denial of a 18 U.S.C. 3582(c)(2) sentence reduction motion was unreviewable on appeal...
U.S. v. Payton, No. 07-10567 (7-21-09).
Posted on July 21, 2009U.S. v. Payton, No. 07-10567 (7-21-09). Searching the computer under a warrant to search for drugs was outside the scope, and thus child pornography evidence found on the computer must be suppressed. This is an important Fourth Amendment decision in that it recognizes that the search of a computer not expressly authorized is unreasonable...
Case o' The Week: Good win from Goodwin, Fourth Amendment and Hotel Searches, Young
Posted on July 19, 2009It seems that for our indigent clients, hotel rooms are a frequent important subject of Fourth Amendment litigation (particularly for meth, motels, and Montana). Thankfully, this week Judge Goodwin (left) gives us an important decision that emphasizes the privacy expectations of hotel guests...
U.S. v. Noster, No. 07-50391 (7-15-09).
Posted on July 16, 2009U.S. v. Noster, No. 07-50391 (7-15-09). Let's start with the dissent first. Written by a district judge sitting by designation, it is a warning against vigilantism, and a rebuke of law enforcement. The dissent acknowledges that the defendant was a bad guy, and that he indeed had stockpiles of pipe bombs and guns...
U.S. v. Young, No. 07-10541 (7-14-09).
Posted on July 14, 2009U.S. v. Young, No. 07-10541 (7-14-09). One has an expectation of privacy in one's hotel room, even when locked out. The defendant here was suspected of stealing from another guest's room. Security locked him out of his, and when searching his belongings, found a weapon...
Case o' The Week: Not "Must," But Maybe "Can:" State/Federal Sentencing Disparity as Variance Basis, Ringgold
Posted on July 12, 2009Must a district court consider the huge disparity between the maximum state exposure, and the federal guideline range, for identical conduct? No, explains Judge Thomas in United States v. Arnold Ringgold,__ F.3d __, No. 06-10492, 2009 WL 1927597 (9th Cir...
U.S. v., Gerritsen, No. 06-50552
Posted on July 10, 2009U.S. v., Gerritsen, No. 06-50552 (7-10-09). Defendant was a "pirate" in the sense of radio broadcasting. He kept interfering with official broadcasts, and when he interrupted a Homeland Security drill, the law came after him. He had other past state convictions, too...
U.S. v. Old Chief, No. 08-30317
Posted on July 08, 2009U.S. v. Old Chief, No. 08-30317 (7-6-09). In a drunken fight, defendants stabbed a victim. One defendant held the victim, while the other defendant stabbed him three times. Each got 120 months. The interesting issue on appeal was whether an adjustment should have been added for restraint of victim...
Case o' The Week: "During" means "During" . . . Unless "During" an Illegal Reentry Offense - Cruz-Gramajo
Posted on July 04, 2009"During" means a temporal relationship, when an event takes place while something else is going on -- unless you're an alien charged with illegal reentry. United States v. Cruz-Gramajo,__ F.3d __, No. 07-50381, 2009 WL 1813336 (9th Cir. June 26, 2009) (decision available here)...
Bible v. Ryan, No. 07-99017 (7-1-09).
Posted on July 02, 2009Bible v. Ryan, No. 07-99017 (7-1-09). The 9th (Gould joined by Clifton and Bybee) affirm the district court's denial of relief in this capital habeas. The 9th finds no IAC at the sentencing stage. The 9th stresses the nature of the crime (a child murder in a "heinious" fashion), and the speculative nature of the mitigation...
Case o' The Week: Tran's-mission Not Clear, Says Ninth in Conspiracy Case
Posted on June 29, 2009"Conspiracy is the darling of the prosecutor's nursery." Thankfully, the Hon. H.P. brings some well-deserved discipline to the little brat. United States v. Tran__ F.3d __, No. 07-30270, 2009 WL 1773149 (9th Cir. June 24, 2009) (decision available here)...
U.S. v. Garcia-Hernandez, No. 08-50190
Posted on June 29, 2009U.S. v. Garcia-Hernandez, No. 08-50190 (6-25-09). The 9th (Ikuta joined by Kleinfeld and Bea) affirm a conviction for 1326 against a challenge for insufficiency of the indictment and admission of the statement. The indictment failed to allege the prior felony conviction...
U.S. vs. Tran, No. 07-30270 (6-24-09).
Posted on June 25, 2009U.S. vs. Tran, No. 07-30270 (6-24-09). Conspiracy, the fair-haired and frankly spoiled child of the prosecutors' nursery, received welcomed discipline by the 9th. In an opinion by Pregerson joined by Canby, the 9th looked at the evidence of a marijuana conspiracy and possession with intent...
U.S. vs. Lopez-Velasquez, No. 07-30241
Posted on June 24, 2009U.S. vs. Lopez-Velasquez, No. 07-30241 (6-23-09). The defendant was charged with 1326. He had been deported in 1994 but had not been informed of 212(c) discretionary relief. If he had been so informed, the district court believed he would not have waived his appeal because he had strong equities, including a citizen wife, and two citizen children...
Holley v. Yarborough, No. 08-15104
Posted on June 22, 2009Holley v. Yarborough, No. 08-15104 (6-16-09). The 9th issues habeas relief to a petitioner, vacating convictions for lewd acts with children. The 9th (Smith joined by Kleinfeld and T. Nelson) hold that petitioner's Sixth Amendment rights to confrontation were violated when the court prevented cross examination about a child's (11 years old) prior statements regarding sex and about how others had made sexual advances toward her...
Case o' The Week: Lacivious Is as Lacivious Does, Overton and Child Pornography
Posted on June 20, 2009"Bad facts make bad law," the chestnut goes. Pretty grim facts in this child porn case certainly don't help in an opinion that spawns a bevvy of new holdings in the field. United States v. Overton, __ F.3d __, No. 08-30075, 2009 WL 1694228 (9th Cir. June 18, 2009), decision available here...
Case o' The Week: Fond Adieu, Rule 32 -- Cruz-Perez and Notice Before Above-Guideline Sentences
Posted on June 15, 2009Notice anything odd about a district court doubling a guideline sentence without advance warning to the defense, or a continuance of the sentencing hearing? Judge Tallman doesn't (right), in United States v. Cruz-Perez__ F.3d __, No. 06-30343, 2009 WL 1607897 (9th Cir...
Nijhawan: Sixth Amendment Non-Event Based On Government Concession?
Posted on June 15, 2009The Supreme Court in Nijhawan held that ?aggravated felony? for civil immigration purposes includes statutes with ?circumstance-specific? characteristics, as opposed to statutes strictly defined by categorical elements. Because ?aggravated felony? has significance for immigration crimes, we need to be aware of the decision...
U.S. v. Cruz-Perez, No. 06-30343
Posted on June 11, 2009U.S. v. Cruz-Perez, No. 06-30343 (6-10-09). The court said that the sentence was going to be high, so what further notice do you need. That's the gist of this opinion authored by Tallman and joined by Beezer and M. Smith. The defendant plead to a 1326 charge...
Case o' The Week: Prior Too Old is Sentencing Gold, United States v. Amezcua-Vasquez
Posted on June 08, 2009A great decision by Judge William Canby (right) reverses an illegal reentry sentence as substantively unreasonable. United States v. Amezcua-Vasquez,__ F.3d __, No. 07-50239, 2009 WL 1508566 (9th Cir. June 1, 2009), decision available here.Players: Big victory by San Diego Assistant Federal Public Defender Janet Tung...
U.S. vs. Ensminger, No. 08-30183
Posted on June 04, 2009U.S. vs. Ensminger, No. 08-30183 (6-3-09). Defendant plead guilty to a sex offender registration (SORNA) charge. As sentencing approached, a district court in the M.D. Fla held that SORNA was unconstitutional because it was outside of congressional commerce clause authority...
Scott v. Schriro, No. 05-99012
Posted on June 03, 2009Scott v. Schriro, No. 05-99012 (6-2-09). The 9th (per curiam -- Kozinski, Farris and Bea) holds that petitioner's IAC claims were not procedurally defaulted and were in fact exhausted. Petitioner had been convicted of being an accessory in a child murder...
U.S. v. Amezcua-Vasquez, No. 07-50239
Posted on June 01, 2009U.S. v. Amezcua-Vasquez, No. 07-50239 (6-1-09). In an important sentencing decision, the 9th (Canby joined by Kleinfeld and Bybee) holds that the defendant's sentence for an illegal re-entry after deportation and enhanced by an aggravated felony was substantively unreasonable...
Case o' The Week: Key Date Is "Found In" Plea Agreement, Not in Case Facts -- Lomeli-Mences & Illegal Reentry Sentencing
Posted on May 31, 2009An undocumented alien is found by ICE agents in August of 2006. They promptly slap an immigration detainer on him. When was the alien "found in" the United States for the illegal reentry prosecution? April 2007, of course. United States v. Lomeli-Mences,__ F...
U.S. v. Medina-Villa, No. 07-50396
Posted on May 29, 2009U.S. v. Medina-Villa, No. 07-50396 (5-28-09). The 9th (Wardlaw joined by Pregerson and Graber) holds that California's penal code section 288(a) -- lewd and lascivious acts on a child under 14 -- is a crime of violence for aggravated felony purposes in 2L1...
U.S. v. Jefferson, No. 08-30067
Posted on May 28, 2009U.S. v. Jefferson, No. 08-30067 (5-26-09). The 4th amendment does not protect early delivery of mail. What is meant by that? Well, the defendant was expecting a postal package guaranteed to be delivered by 3:00 on April 7th. The package came in to the post office that morning, and the postal inspector was waiting for it...
Case o' The Week: The Price is Right --Discovery of Brady Materials in U.S. v. Price
Posted on May 25, 2009Judge Stephen Reinhardt (right) delivers a remarkable Brady decision in United States v. Price, __ F.3d __, No. 05-30323, 2009 WL 1408117 (9th Cir. May 21, 2009), decision available here.Players: Decision by Judge Reinhardt, joined by Judges Goodwin and Pregerson...
U.S. v. Maness, No. 06-30607 (5-19-09).
Posted on May 21, 2009U.S. v. Maness, No. 06-30607 (5-19-09). The 9th considers the issue of self representation at re-sentencing. The court should have allowed the defendant to represent himself at the re-sentencing. This was error. However, the 9th distinguishes between a structural error for the right to self-representation at the trial stage and at sentencing...
Case o' The Week: Like Nigel's "Up to 11" -- Alderman and the "Fourth Category" Of Commerce Clause Power
Posted on May 18, 2009Congress criminalized the possession of body armor by "violent felons." See 18 USC § 931. Within which of Supreme Court's three categories of federal Commerce Clause power does this statute fall?Trick question -- turns out that the body armor statute is authorized by that that elusive "fourth" category of Commerce Clause power, explains the Ninth in a disappointing decision (sparking a powerful Paez dissent)...
U.S. v. Nguyen, No. 07-30197 (5-15-09).
Posted on May 15, 2009U.S. v. Nguyen, No. 07-30197 (5-15-09). Crawford and confrontation are issues in this appeal involving conspiracy to transport stolen property, transportation of the property, and conspiracy for money laundering. The offenses arose from a scheme to misbrand ultrasound probes and to defraud the supplier...
U.S. v. Alderman, No. 07-30186
Posted on May 12, 2009U.S. v. Alderman, No. 07-30186 (5-12-09). The 9th holds that the sale of body armor in interstate commerce creates a sufficient nexus between possessing the body armor and commerce to allow for congressional commerce clause authority. The majority (McKeown joined by B...
Case o' The Week: Shutting the Door on "Opening the Door," Osazuwa and FRE 608 and 609
Posted on May 11, 2009Judge Graber (left) explains a new Ninth Circuit rule on the use of specific acts of conduct to impeach, in a great case untangling the interplay of Federal Rules of Evidence 608 and 609. United States v. Osazuwa,__ F.3d __, No. 08-50244, 2009 WL 1232107 (9th Cir...
U.S. v. Osazuwa, No. 08-50244 (5-7-09).
Posted on May 07, 2009U.S. v. Osazuwa, No. 08-50244 (5-7-09). This is an interesting opinion concerning the interplay between FRE 608 (specific instances of untruthfulness) and FRE 609 (prior convictions). That is, can the facts underlying 609 be used as instances in 608...
King v. Ryan, No. 06-55858 (5-5-09).
Posted on May 06, 2009King v. Ryan, No. 06-55858 (5-5-09). In habeas, the 9th deals with stays-and-abeyances of unexhausted claims (the so-called Kelly procedure). The 9th (Berzon joined by Hawkins and Clifton) concludes that Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002) survives Rhines v...
Case o' The Week: Jx, but Nixed: Godinez-Ortiz and "Dangerousness" Evaluations under 18 USC Section 4246
Posted on May 04, 2009Judge Steven Trott (left) has the defense singing the blues in a case delivering the battle to the hard-fighting San Diego Defenders, but ceding the war to the government in a Section 4246 "dangerousness" case. United States v. Godinez-Ortiz,__ F.3d __, No...
U.S. v. Godinez-Ortiz, No. 08-50337
Posted on May 04, 2009U.S. v. Godinez-Ortiz, No. 08-50337 (4-29-09). The 9th (Trott, Kleinfeld, Fisher) uphold the court's authority to send a defendant found incompetent, and nonrestorable, back to FCI-Butner for a dangerousness evaluation under 4246. The 9th did grant the interlocutory appeal of the order, finding that it evades review, and the issue presented will be resolved...
Case o' The Week: Breaking Up is Hard to Do, Mendez-Sanchez
Posted on April 25, 2009Appointed counsel -- be it CJA or FPD -- are getting fired in droves in the N.D. Cal., thanks to the "priors" policy of United States Attorney Joe Russoniello (left). Perfect timing for a new decision by the Ninth, discussing Faretta motions and motions for new counsel: now-frequent fare for the N...
U.S. v. Mendez-Sanchez, No. 08-30044
Posted on April 24, 2009U.S. v. Mendez-Sanchez, No. 08-30044 (4-23-09). Faretta vs preference for a different lawyer? Here, the defense counsel had a difficult relationship with the defendant facing drug charges: the defendant insisted there was no evidence because there were no photos of the drug dealing, and focused on trivial discrepancies (such as a date being crossed out on the warrant and initialed)...
McKnight v. Torres, No. 08-55459
Posted on April 22, 2009McKnight v. Torres, No. 08-55459 (4-20-09). Can a plea agreement be lost in translation? The defendant entered into a plea agreement with the US Atty regarding ecstasy trafficking. The defendant was also wanted by the French, and France requested extradition...
U.S. v. Felix, No. 07-50173 (4-13-09).
Posted on April 20, 2009U.S. v. Felix, No. 07-50173 (4-13-09). One criminal history point. That is what this appeal is about. And that one point separated the defendant from getting relief by the opening of the safety valve. Proof of the point was a computer print-out. The 9th first held that the appeal was not waived even though the plea agreement had waiver language because the district court had twice told defendant he could appeal, and the government did not object...
Case o' The Week: Brown Blues, Ninth Broadens Co-Occupant Consent Searches
Posted on April 18, 2009Handcuff a suspect at gunpoint outside of his house, throw him in a police car, whisk him away, never ask him if he consents to a search of his residence, and get another ('cuffed) occupant of the home to consent to a search.Surely, this is not valid Fourth Amendment "consent" to a warrantless search?It is is in the Ninth...
Case o' The Week: Defense shanked by Styrofoam "knife," Malik Smith
Posted on April 12, 2009A slow week in the Ninth for criminal decisions lets us stretch back a bit and discuss what may be one of Judge Michael Hawkins' (left) last en banc decisions: United States v. Malik Smith, No. 05-50375, 2009 WL 750279 (9th Cir. Mar. 24, 2009), decision available here...
Case o' The Week: Peanuts for Carter, Post-Booker Sentencing Review in the Ninth
Posted on April 05, 2009Post-Booker appellate review of sentencing is an "empty formality," complains dissenting Judge Tashima in a decision that reveals where the Apprendi revolution fell short. United States v. Carter,__ F.3d __, No. 05-50303, 2009 WL 805801 (9th Cir. Mar...
U.S. v. Paul, No. 08-30125 (4-2-09).
Posted on April 02, 2009U.S. v. Paul, No. 08-30125 (4-2-09). The defendant had embezzled some federal funds: it was her first offense, she returned the funds, she apologized profusely before charges were filed, and she explained that she had taken the funds because she felt, wrongly, that it was compensation for work she had done for the school district...
COTW: Fewer "Fools for a Client," Ferguson, Faretta, and Self-Representation
Posted on March 30, 2009Not crazy enough to be declared incompetent to face criminal charges, but too wacky to defend oneself at trial? The Ninth recites the new Supreme Court standard for this too-frequent situation, in United States v. Ferguson, No. 07-50096, 2009 WL 792485 (9th Cir...
U.S. v. Bassignani, No. 07-10453
Posted on March 30, 2009U.S. v. Bassignani, No. 07-10453 (3-25-09). Defendant was suspected of getting child porn on his office computer. The investigators went to his place of work, and questioned him for over two hours in an office conference room. The question for the 9th was whether this was "in custody" because no Miranda warnings were given...
U.S. v. Gutierrez-Sanchez, No.
Posted on March 24, 2009U.S. v. Gutierrez-Sanchez, No. 08-50254 (3-23-09). Beware what you plead to. The defendant here was apprehended illegally in this country. Under a fast-track plea, he plead to making a false statement (1001), with a government recommendation to 9 months...
Case o' The Week: Potato Driggers, J/x, Mens Rea, and Jury Instructions
Posted on March 22, 2009The defense wins on the jurisdictional hook in federal jury instructions, and the relation of that jurisdictional element to the mens rea requirement. United States v, Driggers,__ F.3d __, No. 07-31090, 2009 WL 692003 (9th Cir. March 18, 2009), decision available here...
U.S. v. Driggers, No. 07-30190
Posted on March 20, 2009U.S. v. Driggers, No. 07-30190 (3-18-09). Defendant appealed his conviction for murder for hire, 18 U.S.C. 1958, and the 9th considered the issue of the jury instruction. The defendant had asked the hiree to come to Idaho to murder his ex-wife. The hiree crossed state lines...
Case o' The Week: Fish-er Cut Bait on the Fourth? Ninth Guts Warrant Requirement for Exigency Cases
Posted on March 15, 2009Writing for the majority in a very disappointing en banc decision, Judge Tallman (right) holds that a situation creating exigent circumstances -- once underway and if still on-going -- obviates the need for an arrest warrant, even if there is ample time and opportunity to get the warrant...
U.S. v. Hilgers, No. 08-30078 (3-11-09).
Posted on March 11, 2009U.S. v. Hilgers, No. 08-30078 (3-11-09). The 9th affirms an above-guidelines sentence as reasonable. The offense was mortgage fraud, and the defendant manipulated lendees and lenders as a mortgage broker. His guidelines were 33 to 41 months. The PSR painted an unflattering portrait of a manipulator, and questioned his sincerity...
Case 'o the Week: Ninth Heavy Hahn-ded on Rule 32(h) Notice Requirements
Posted on March 09, 2009Does a defendant have the right to know they're going to get hammered, before the gavel falls? In a disappointing decision, a per curiam panel of the Ninth holds that briefing and arguing a departure issue is enough "notice" under Federal Rule of Criminal Procedure 32(h) to permit an upward departure -- even if the district court hasn't given notice of its intent to do so...
U.S. v. Boulware, No. 05-10752
Posted on March 09, 2009U.S. v. Boulware, No. 05-10752 (3-9-09). The 9th affirms the district court's holding that the defendant failed to make a sufficient showing of proof to support a "return of capital" defense in a tax prosecution.U.S. v. McFall, No. 07-10034 (3-9-09)...
U.S. v. Hahn, No. 07-30324 (3-4-09).
Posted on March 06, 2009U.S. v. Hahn, No. 07-30324 (3-4-09). The defendant was serving a state sentence when he was convicted of being a felon in possession. At sentencing, the parties argued in memos about whether the sentence should run consecutive, or concurrently, or whether a departure was called for under 5G1...
U.S. v. Banks, No. 07-30130 (2-25-09).
Posted on February 25, 2009U.S. v. Banks, No. 07-30130 (2-25-09). This is a child porn case, where the interesting issue, and heated exchange, occurs between Rawlison joined by Graber and Alarcon dissenting over the issue of grandparents and marital privilege. Here, as one of several issues, the 9th found that the district court erred in allowing defendant's spouse to testify about communications, but it was harmless...
U.S. v. Kincaid-Chauncey, No. 06-10544
Posted on February 23, 2009U.S. v. Kincaid-Chauncey, No. 06-10544 (2-20-09). The defendant was a Clark County Commissioner in Nevada, who received benefits from a strip club owner wanting zoning concessions. A principal witness had credibility issues as to what he paid to whom...
Case o' The Week: Strip Club Honest Services, Kincaid-Chauncey
Posted on February 21, 2009Las Vegas strip clubs, "touching" legislation, cash bribes to politicians and federal wiretaps -- the salacious stuff of a new prime time miniseries? Nope: just another day in the Ninth. United States v. Kincaid-Chauncey, No. 06-10544, __ F.3d __, 2009 WL 415567 (9th Cir...
U.S. v. Garcia-Cardenas, No. 08-50117
Posted on February 18, 2009U.S. v. Garcia-Cardenas, No. 08-50117 (2-17-09). In a per curiam decision, the 9th again rebuffs arguments in 1326 cases that the use of a prior as an aggravated felony adjustment and as criminal history is double counting. The argument here was that such counting made for an unreasonable sentence...
Case o' The Week: "Cursing the Opacity of Guidance Received from Above," Autery and Post-Booker Sentencing review
Posted on February 16, 2009District and appellate courts after Booker and Gall are "like Hansel and Gretel, looking for the now-missing breadcrumbs that would lead us back to clarity in sentencing." United States v. Autery, __ F.3d __, No. 07-30424, 2008 WL 349801 (9th Cir. Feb...
U.S. v. Al Nasser, No. 05-10466
Posted on February 06, 2009U.S. v. Al Nasser, No. 05-10466 (2-4-09). Three Border Patrol cars were on the side of the road, and two other vehicles were stopped. The agents were processing smuggled illegal aliens for arrest. The defendant drove up, and stopped. The officers were not going to stop any more cars because of the safety issue, but this car had stopped...
Abraham Lincoln on Guantánamo
Posted on February 02, 2009As we approach the 200th anniversary of Abraham Lincoln?s birth, our sixteenth president provides what sounds like a call to action regarding the policies and injustices that resulted from the law-free zone in Guantánamo: ?To correct the evils, great and small, which spring from want of sympathy, and from positive enmity, among strangers, as nations, or as individuals, is one of the highest functions of civilization...
Case o' The Week: The Fourth, the Ninth, and the Tenth: New 4th Amendment Standing Rule in Ninth Circuit, SDI Future Health
Posted on January 31, 2009In a case that presents more Fourth Amendment issues than a CrimPro exam, the Ninth Circuit imports a Tenth Circuit test to create a new rule for gauging the standing of corporate employees to challenge a search within a business. United States v. SDI Future Health, Inc...
U.S. v. SDI Future Health, Inc.,
Posted on January 30, 2009U.S. v. SDI Future Health, Inc., No. 07-10261 (1-27-09). Can corporate executives challenge police searches on corprorate premises where the executives did not have exclusive use? In other words, it is time for another 4th Amendment "test." This case was on an interlocutory appeal, involved a Medicare scam (double billings, billings for services not rendered, etc...
Case o' The Week: Cal Burglary Convictions not "Violent" Felonies under USSG § 2L1.2, Aguila-Montes de Oca
Posted on January 24, 2009A big defense win by the San Diego Defender knocks California burglary convictions out as "violent" offenses triggering a sixteen offense level increase under USSG § 2L1.2. United States v. Aguila-Montes de Oca, __ F.3d __, No. 05-50170, 2009 WL (Jan...
U.S. v. Orlando, No. 07-50473 (1-23-09).
Posted on January 23, 2009U.S. v. Orlando, No. 07-50473 (1-23-09). This is a disappointing opinion that applies Irizarry, the Supreme Court case that held that notice for a sentencing variance is not required. The defendant faced a guideline range of 27 to 33 months for tax evasion...
U.S. v. Esparza, No. 07-50293 (1-20-09).
Posted on January 21, 2009U.S. v. Esparza, No. 07-50293 (1-20-09). This opinion deals with supervised release conditions in a child pornography case. Specifically,the failure of the sentencing court to make specific findings to support conditions that could mandate the taking of all prescribed medication, and physiological testing, and the delegation of the potential for inpatient treatment...
Case o' The Week: Judge Graber Urges a "Liberal" Reading in a Criminal Case, Awad and Sufficiency of the Indictment
Posted on January 18, 2009In Awad, Judge Susan Graber (left) urges a "liberal" approach in a criminal case. Honest. Unfortunately for Awad, however, Judge Graber is referring to a "liberal" reading of a deficient indictment; a reading which allows fraud convictions (and a 180 month sentence) to stand...
U.S. v. McCaleb, No. 06-50387 (1-13-09).
Posted on January 16, 2009U.S. v. McCaleb, No. 06-50387 (1-13-09). Verdict forms can be confusing. Defendant faced drug charges for running a clandestine meth lab. Defendant conceded count two (precursor drug possession) but argued for a lesser on the conspiracy charge. The jury returned a verdict form that checked both the greater charge and lesser...
U.S. v. Kaczynski, No. 06-10514
Posted on January 13, 2009U.S. v. Kaczynski, No. 06-10514 (1-9-09). This case involves the Unabomber, and the sale of seized property to satisfy restitution. The victim restitution statute survives the defendant's facial challenges, and as applied arguments. His First Amendment rights are not curtailed, and by getting copies of his papers, which will be sold, he still can express his ideas...
Case o' The Week: Ninth's blow to Kimbrough, Gonzalez-Zotelo and fast-track disparities
Posted on January 11, 2009A disappointing decision authored by Judge Barry Silverman (left) deepens a circuit split on the scope of a district court's sentencing discretion after Kimbrough. See United States v. Gonzalez-Zotelo, __ F.3d __, 2009 WL 37144 (9th Cir. Jan. 8, 2009), decision available here...
U.S. v. Gonzalez-Zotello, No. 08-50010
Posted on January 08, 2009U.S. v. Gonzalez-Zotello, No. 08-50010 (1-8-09). This is a disappointing decision regarding 3553(a)(6) factors, "fast-track," and variances to correct unwarranted fast-track disparities. The defendant was not given a fast-track plea because of a prior sex offense...
U.S. v. Collins, No. 06-50339 (1-7-09).
Posted on January 07, 2009U.S. v. Collins, No. 06-50339 (1-7-09). Batson comes to the 9th again. This was a drug conviction, in which the government struck the only remaining African American. The defendant asked for justification, arguing that a prima facie Batson showing was made...
Case o' The Week: Duncan Do-Nots: 28 years for Sex Registration Offense Grossly Disproportionate
Posted on January 03, 2009Judge Bybee, (right) joined by Judges Kleinfeld and Canby, end 2008 with a bang: with an Eighth Amendment habeas reversal of a California sex-registration sentence. See Gonzalez v. Duncan, __ F.3d __, No. 06-56523, 2008 WL 5399079 (9th Cir. Dec. 30, 2008), decision available here...
Case o' The Week: Sausage Carver, Mem Dispos and "final" Decisions
Posted on December 25, 2008"To retain respect for sausages and laws, one must not watch them in the making." Otto von Bismark. Judge Stephen Reinhardt (left) takes us deep into to the sausage factory in a fascinating decision that illustrates just how much difference one judge can make ...
Case o' The Week: The Real Deal, United States v. Augustine Murillo & Suspended Sentences
Posted on December 21, 2008The Ninth continues its holiday break from criminal decisions, with the second straight week of civil cases filling its plate. This gives us a chance to reach back a bit and look a little decision with a big (unwritten) sub-context: United States v. Augustine Garcia Murillo, __ F...
Case o' The Week: Ninth Reverses Death Penalty for Prosecutorial Misconduct, Sechrest
Posted on December 07, 2008Pregerson, Berzon, and Fletcher: oh my. What happens when a death penalty case involving "flagrant" prosecutorial misconduct comes before this panel of the former -- and future -- Lions of the Left?Sechrest v. Ignacio, __ F.3d __, 2008 WL 5101988 (9th Cir...
U.S. v. Murillo, No. 07-50462 (12-1-08).
Posted on December 05, 2008U.S. v. Murillo, No. 07-50462 (12-1-08). Many state sentencing schemes allow for suspension of sentence with imprisonement for a year as a condition of probation. That was done here. This was a no-no. The Federal Sentencing Reform Act, and the Guidelines, do not allow for such a suspension...
Gallagher v. U.S. District Court,
Posted on November 13, 2008Gallagher v. U.S. District Court, No. 07-74593 (11-13-08). "[The Defendant] Can't Get No Satisfaction." Instead, the 9th (McKeown) begins the opinion with the Rolling Stones "classic" lyrics "You can't always get what you want." Okay, so what is this about? "A defendant who chooses to take a conditional plea cannot always assume the court will grant its consent...
U.S. v. Youssef, No. 07-10335 (11-5-08).
Posted on November 06, 2008U.S. v. Youssef, No. 07-10335 (11-5-08). The defendant checked "no" to the question of whether he had ever been arrested or convicted of an offense on the I-495 immigration form to adjust status. He had, in fact, been convicted of resisting or disobeying a court order...
Case o' The Week: One Minute (Order) Means Years, Snellenberger
Posted on November 02, 2008Only in California can one burgle an outhouse (though why one would remains a mystery). United States v. Snellenberger, __ F.3d __, 2008 WL 4717190, *1 (9th Cir. Oct. 28, 2008) (en banc), decision available here. California Penal Code § 459 burglary is broader than the federal "generic" definition (limited to residences), so it is a frequent question as to whether a prior burglary conviction qualifies as a "crime of violence" for federal sentencing enhancements (like Career Offender)...
U.S. v. Snellenberger, No. 06-50169
Posted on October 28, 2008U.S. v. Snellenberger, No. 06-50169 (10-28-08) (en banc). Defendant challenges a prior conviction that renders him a career offender. The prior was a burglary, but the issue was whether it fit under a Taylor analysis (California's burglary statute is overbroad)...
Case o' The Week: Ninth Uses Federal Statute for Federal Definition - and Government Objects, Estrada-Espinoza
Posted on October 25, 2008Judge Sidney Thomas (left) authors a characteristically thoughtful opinion in an important en banc decision on the jurisprudential goo of the categorical / modified categorical sentencing analysis: United States v. Estrada-Espinoza v. Mukasey, __ F.3d __, 2008 WL 4615681 (9th Cir...
U.S. v. Seljan, No. 05-50236 (10-23-08)
Posted on October 24, 2008U.S. v. Seljan, No. 05-50236 (10-23-08) (en banc). The short holding: letters can be read at POEs. This case involved border agents at an airport checking a FedEx package for currency. Letters were opened, some with small currency, and a few lines of the letter were scanned that indicated an interest in little girls...
U.S. v. McTiernan, No. 07-50430
Posted on October 21, 2008U.S. v. McTiernan, No. 07-50430 (10-21-08). What is a "fair and just" reason for withdrawing from a plea? Here, it is because the defendant alleges that he was not adequately advised that a key piece of evidence -- a recording -- might be suppressible for violating the wiretap statute...
Case o' The Week: Good Dictum on Victims, Armstead and 2B1.1 Victim Enhancements
Posted on October 19, 2008Judge Tashima writes for a very good panel, and gives us welcome new rules on identifying "victims" for fraud and theft cases under USSG § 2B1.1. United States v. Armstead, __ F.3d __, 2008 WL 4570608 (9th Cir. Oct. 15, 2008), decision available here...
U.S. v. Armstead, No. 06-30550
Posted on October 17, 2008U.S. v. Armstead, No. 06-30550 (10-15-08). What about a new TV series called "Loss," where a group of defendants, marooned in federal court, have to confront mysterious numbers of victims as they await sentencing and try to gather restitution? Oh wait, the 9th has already come up with that idea in a series of cases, this being the latest...
Case o' The Week: Right on Cue, Bybee Gets Confrontational
Posted on October 13, 2008In a very good decision, Judge Bybee explains the application of the Confrontation Clause -- and mulls over the differences between cue balls and pool balls along the way. Slovik v. Yates, __ F.3d __, 2008 WL 4459083 (9th Cir. Oct. 6, 2008), decision available here...
U.S. v. Delgado, No. 07-50238 (10-7-08).
Posted on October 07, 2008U.S. v. Delgado, No. 07-50238 (10-7-08). "Sometimes the lights all shinin' on me / Other times I can barely see / lately it occurs to me what a long strange trip its been." The Grateful Dead might not have been surprised to discover that Truckin' was commercial, and that commercial trucking is a pervasively regulated industry that supports warrantless searches...
Case o' The Week: A "Real" Defense Victory, Waknine
Posted on September 20, 2008A slow week in the Ninth means we can stretch back a bit to the interesting decision of United States v. Waknine, __ F.3d __, 2008 WL 4149666 (9th Cir. Sept. 10, 2008), opinion available here. In this appeal from the Honorable Manuel Real (left), the Ninth Circuit rejects defense complaints that the government did not get a full chance to speak at sentencing...
Hebner v. McGrath, No. 06-16533
Posted on September 19, 2008Hebner v. McGrath, No. 06-16533 (9-16-08). What does it take for a new argument to relate back to a claim previously filed in habeas? Under the Supremes's decision in Mayle v. Felix, 545 US 644 (2005), the claim has to arise from the operative facts so as to avoid a statute of limitations bar...
U.S. v. Drake, No. 06-10073 (9-15-08).
Posted on September 17, 2008U.S. v. Drake, No. 06-10073 (9-15-08). The 9th (O'Scannlain) considered whether indictment on local Guam counts but convicted on different charges in federal court violated Speedy Trial rights? The 9th answered "no." The charges were a local Guam robbery and gun counts; the indictment was dismissed and then reindicted, and then transferred to federal court, where he was convicted on Hobbs Act...
Case o' The Week: New Ninth Rule Tolerates Meddling -- er, "Involved" -- Trial Judges, U.S. v. Lopez-Martinez
Posted on September 14, 2008A pretty good panel gives us a pretty disappointing decision, in United States v. Lopez-Martinez, 2008 WL 4149658 (9th Cir. Sept. 10, 2008), decision available here. In Lopez-Martinez, the Ninth decides -- for the first time -- that a trial court who actively suggests questions to attorneys (read, "AUSAs") doesn't abuse the neutral role of the presiding judge...
U.S. v. Weyharauch, No. 07-30339
Posted on September 11, 2008U.S. v. Weyharauch, No. 07-30339 (9-8-08). To file an interlocutory appeal from a suppression order, the government has to properly certify that the evidence is material and the appeal is not for delay under 18 USC 3731. The U.S. Attorney has to so certify...
Case o' The Week: Government Uses Trial Acceptance Guideline to Coerce Appeal Waivers, Medina-Beltran and Third "Acceptance" Level
Posted on September 06, 2008This innocous little case, where one offense level (a handful of months) was at issue, is (respectfully) a leading contender for the worst Ninth Circuit decision of 2008. See United States v. Medina-Beltran, No. 06-10181, 2008 WL 4093611 (9th Cir. Sept...
U.S. v. Bendtzen, No. 07-50249
Posted on September 05, 2008U.S. v. Bendtzen, No. 07-50249 (9-5-08). The 9th (Wardlaw joined by Ikuta and Fogel) hold that a fake bomb used in a bank robbery can trigger the Guidelines adjustment for brandishing (+3) or use (+4). The Guidelines commentary includes fake weapons, and the focus is on appearing to cause death or serious bodily injury...
Paulino v. Harrison, No. 07-55429
Posted on September 04, 2008Paulino v. Harrison, No. 07-55429 (9-4-08). The 9th affirms the granting of a petition for a Batson violation. The court had previously remanded for an evidentiary hearing, and the record indicates that the state prosecutor had no recollection now why African-American prospective jurors were struck except that it was not for racial reasons...
U.S. v. Easterday, No. 07-10347
Posted on September 03, 2008U.S. v. Easterday, No. 07-10347 (8-22-08). The 9th (Schroeder joined by Fairbank, dissent by N. Smith) finds that circuit precedent has been effectively overruled by the Supreme Court. The precedent was U.S. v. Poll, 521 F.2d 329 (9th Cir. 1975), which requires, in a failure to pay payroll tax under 26 USC 7202, that the government prove the defendant could pay taxes, and the defendant could argue, as part of "wilful" failure that he did not have the funds...
Case o' The Week: 9th + § 211 = +16, Becerril-Lopez and Categorical analysis
Posted on August 30, 2008An order amending a June decision (and, unfortunately, denying rehearing en banc) gives us an opportunity to reach back a bit in this slow August week in the Ninth Circuit. See United States v. Becerril-Lopez, __ F.3d __, 2008 WL 3982507, ord. (9th Cir...
Case o' The Week: Bybee, Redux - Great Fifth Amendment Decision on "Custodial" Interrogation in the Home, Craighead
Posted on August 24, 2008To the left of Judge Tallman, and to the left of Judge Wallace, is a smiling W. Bush appointee, Judge Jay Bybee.Literally, too.This week's excellent opinion in Craighead means great back-to-back decisions by Judge Bybee, with the Straub immunity case delivered last week...
U.S. v. Jaeger, No. 06-30621 (8-18-08).
Posted on August 22, 2008U.S. v. Jaeger, No. 06-30621 (8-18-08). Let me not to the marriage of true minds admit impediments, but, said the court, you really should think about the Fifth Amendment consequences. The wife, who was going to testify on defendant's behalf, and who had entered into a plea agreement in the same conspiracy and was awaiting sentencing, then changed her mind...
U.S. v. Straub, No. 07-30182 (8-15-08).We
Posted on August 15, 2008U.S. v. Straub, No. 07-30182 (8-15-08).We now hold that for a defendant to compel use immunity the defendant must show that:(1) the defense witness's testimony was relevant; and (2) either (a) the prosecution intentionally caused the defense witness to invoke the Fifth Amendment right against self-incrimination with the purpose of distorting the fact-finding process; or (b) the prosecution granted immunity to a government witness in order to obtain that witness's testimony but denied immunity to a defense witness, with the effect of so distorting the fact-finding process that the defendant was denied his due process right to a fundamentally fair trial...
Case o' The Week: Bybee Boosts Immunity, Straub
Posted on August 15, 2008Judge Bybee (left) gives a big boost to defense immunity in an important decision that elaborates on the Williams test -- permitting the effects of the government's immunity decisions to establish a constitutional violation. See United States v. Straub, 2008 WL 3547541, (Aug...
U.S. v. Goddard, No. 07-50402 (8-11-08).
Posted on August 12, 2008U.S. v. Goddard, No. 07-50402 (8-11-08). Defendants on SR after a child porn case need to be monitored; but what extent do you monitor the computer monitors? The 9th takes this up, where the conditions absolutely forbade any software change, or upgrade without express approval...
Case o' The Week: The Ten Most Terrifying Words in the English Language: "I'm From the Government and I'm Here to Help You," Garcia-Aguilar
Posted on August 09, 2008The government developed a sudden concern for defendants' rights to proper plea advisements in Garcia-Aguilar -- and Chief Judge Kozinski ain't buying it. Garcia-Aguilar v. United States District Court for the Southern District of California, 2008 WL 3009680 (9th Cir...
Garcia-Aguilar v. U.S. District
Posted on August 06, 2008Garcia-Aguilar v. U.S. District Court for So. Calif , et al., No. 07-70293 (8-6-08). The 9th held that the Court must accept unconditional guilty pleas. This is a mandamus with consolidated cases. The defendants were charged with 1326, but the government had not specifically charged that they had been removed after conviction of a felony under 1326(b)(2)...
Case o' The Week: Ruff Case for the Government, Big Sentencing Win for the Defense
Posted on August 02, 2008In an important decision that has real-world impact for our clients, Judge Fisher (left) emphasizes the discretion of a district court to fashion a sentence that avoids full custodial confinement. See United States v. Ruff, 2008 WL 2940535(9th Cir. Aug...
U.S. v. Ruff, No. 07-30213 (8-1-08).
Posted on August 01, 2008U.S. v. Ruff, No. 07-30213 (8-1-08). The court sentenced Defendant to a year and a day with recommendations that he serve the sentence in a specific facility to allow work release. The facility, however, could only accept someone if he was on SR. Less than a week later, the court held another hearing and amended its judgment to be one day imprisonment and three years SR, with a condition that he stay at the facility for a year and a day...
U.S. v. Jimenez, No. 07-10399 (7-23-08).
Posted on July 29, 2008U.S. v. Jimenez, No. 07-10399 (7-23-08). The 9th dialed "T" for drug trafficking when it comes to a prior conviction for unlawful use of communication facility under 21 USC 843(b). The defendant was convicted of a 1326, and given a 16-level enhancement for prior drug trafficking offenses...
Case o' The Week: The Fourth Reappears in Car Searches, Caseres
Posted on July 27, 2008Did the subject of a warrantless car search have the skill of Houdini and the strength of Hercules? See decision at *20.The Ninth ain't buying it, in a wonderful decision that restores some of the battered Fourth Amendment protections associated with car searches...
U.S. v. Caseres, No. 06-50546 (7-21-08).
Posted on July 22, 2008U.S. v. Caseres, No. 06-50546 (7-21-08). The 9th drew a line when it comes to car searches. The police were patrolling in an unmarked car when defendant (oops) made a right hand turn without signalling and the police thought that his passenger windows were tinted too dark...
Case o' The Week: Great Miranda Decision Involves No Confession - Miranda-Lopez and Aggravated Identity Theft
Posted on July 20, 2008In a great decision invoking our beloved "rule of lenity," Judge Silverman holds that the aggravated identity theft statute - 18 USC Section 1028A -- requires proof that the defendant knew that the card used came from a real person. United States v. Miranda-Lopez, __ F...
U.S. v. Gonzalez, No. 06-50461
Posted on July 18, 2008U.S. v. Gonzalez, No. 06-50461 (7-18-08). The 9th affirmed the convictions of the defendant who, as a police officer, allegedly used his badge and uniform to sexually assault women. Charged federally with acting under color of authority to deprive women of their bodily integrity pursuant to 18 U...
U.S. v. Singh, No. 07-30150 (7-17-08).
Posted on July 17, 2008U.S. v. Singh, No. 07-30150 (7-17-08). In an alien smuggling case, the defendant was convicted of aiding and abetting a "brings to" the U.S. offense under 8 USC 1324. The defendant argued, under plain error review, that there was insufficient evidence to support the conviction of aiding and abetting bringing an alien to the U...
U.S. v. Whitehead, No. 05-50458
Posted on July 15, 2008U.S. v. Whitehead, No. 05-50458 (7-14-08). In an appropriate Bastille Day opinion, the 9th (per curiam -- Kozinski and O'Scannlain) affirm a variance sentence. Defendant was accused of pirating one million dollars of DirectTV access. He went to trial and was convicted...
Case o' The Week: Fraud loss of $245,126 is not over $10,000, Kawashima and Taylor Categorical Analysis
Posted on July 13, 2008A slow week in the Ninth has us stretching back a bit to the intriguing July 1st decision of Kawashima v. Mukasey, __ F.3d __, 2008 WL 2579212 (9th Cir. July 1, 2008), decision available here. Though technically an immigration case, Kawashima is an important decision in the criminal context as well -- particularly in fraud cases involving non-citizens...
Alternatives To Incarceration: The Sentencing Commission Looks At How Sentences Are Being Implemented
Posted on July 10, 2008The Sentencing Commission has invited federal defenders to participate in its Symposium on Alternatives to Incarceration in Washington, D.C., on July 14 and 15, 2008. In preparation for the symposium, we have prepared an article entitled The Sentencing Commission, The Bureau of Prisons, And The Need For Full Implementation Of Existing Ameliorative Statutes To Address Unwarranted And Unauthorized Over-Incarceration, which is available here...
U.S. v. Salman, No. 05-10093 (7-7-08).
Posted on July 08, 2008U.S. v. Salman, No. 05-10093 (7-7-08). Defendant said "the check's in the mail" to the IRS, and actually submitted a "sight draft." Never heard of it? Well, the IRS wasn't too keen on this type of instrument that is non-negotiable and is essentially an instrument paid only between two parties and, well, it was fictitious...
Case o' The Week: Warr - huh - What is it Good For? (Absolutely Nothing).
Posted on July 05, 2008Edwin Starr's classic tune, "War" isn't quite the apt fit suggested in the title of this blog entry: the Ninth's recent sentencing decision in Warr is "good for" a little something -- though it takes a close read to find the silver lining in this dark cloud...
U.S. v. Davis, No. 07-30219 (6-30-08).
Posted on July 01, 2008U.S. v. Davis, No. 07-30219 (6-30-08). The 9th (N. Smith joined by Tallman and Clifton) address curtilage in a remote rural homestead in Oregon growing marijuana. Applying the Supremes test (been there, "Dunn" that) for curtilage, the 9th holds that the facts that lead to probable cause (smell of green growing marijuana, humid air coming from a remote pipe, unprotected space), all weighed against the observations made by law enforcement being in the curtilage...
U.S. v. Gonzalez, No. 07-10326
Posted on June 27, 2008U.S. v. Gonzalez, No. 07-10326 (6-19-08). This was a case of making "bale." The bale was marijuana, and the defendant, a Border Patrol agent, took one bale out of 30 when he was left to guard a pick-up. He placed the bale in his vehicle, and acted none the wiser...
Case o' The Week: Bad Cops Make Good Law, Quon -- Fourth Amendment Privacy Interests in Text Content
Posted on June 22, 2008Ever notice that cops behaving badly create the best defense decisions? For example, cops beat the daylights out of Rodney King, get convicted, and generate the Supreme Court's seminal case on sentencing departures. Koon v. United States, 518 U.S. 81 (1996)...
Butler v. Curry, No. 07-56204 (6-9-08).
Posted on June 19, 2008Butler v. Curry, No. 07-56204 (6-9-08). Under Teague, the state argued what is old is really new, especially when it comes to Cunningham. In Cunningham, the Supremes applied Blakely to California's guideline sentencing scheme. The petitioner here received an aggravated sentence based on judicial fact-finding...
Case o' The Week: Ninth Checks Attempts to Limit Loss Amounts, Santos
Posted on June 13, 2008Looking for cheap witticisms at the Ninth's expense, gleaned from last week's headlines? Ain't nothin' here. Y'all best be movin' on, compadre.We instead focus on the interesting, though disappointing, decision on loss calculations from Judge Reinhardt (right)...
Case o' The Week: Title III Rivera is Wide, But Not Deep
Posted on June 08, 2008Wiretap guru Judge Betty Fletcher (left) brings us a disappointing Title III decision this week in United States v. Rivera, __ F.3d __, 2008 WL 2229944 (9th Cir. June 2, 2008), decision available here.Though we're not big fans of the opinion, we're huge fans of the Judge: here's hoping for a very speedy recovery...
U.S. v. Rivera, No. 06-30474 (6-2-08).
Posted on June 06, 2008U.S. v. Rivera, No. 06-30474 (6-2-08). Necessity is the mother of all wiretaps, or so the statute would require. Here, defendant argues that the wiretap was unnecessary because there were other means, and that the wiretap failed to minimize. The 9th (B...
Case o' The Week: Computer "Containers" Theory No Longer Contained, Giberson
Posted on June 01, 2008Senior Judge Wallace (left) authors a devastating opinion on the Fourth Amendment and computers. United States v. Giberson, __ F.3d __, 2008 WL 2221008 (9th Cir. May 30, 2008), decision available here.The opinion's casual extension of the "open container" Fourth Amendment exception to computers merits en banc review...
Case o' The Week: Better Late Than Never, OK in Santana
Posted on May 31, 2008The Ninth zinged us. In a rare show of efficiency, we had the following Santana memo finished last Thursday. The Court, of course, then issued the important Giberson decision on Friday (blogged above). It pays to procrastinate. Here is the bonus Case o' The Week memo on Santana and a prisoner's long wait (left) to be picked up for a supervised release violation...
U.S. v. Marler, No. 07-30181 (5-29-08).
Posted on May 30, 2008U.S. v. Marler, No. 07-30181 (5-29-08). Defendant escaped from state custody, and six days later was arrested for conspiring to commit a robbery. He got 2 years state for the escape and 30 years state for the conspiracy. The feds then prosecuted him for being a felon in possession, and he gets a guideline adjustment because he was on escape status...
U.S. v. Fernandez, No. 06-50595
Posted on May 28, 2008U.S. v. Fernandez, No. 06-50595 ( 5-27-08). Will an alias a day keep the wiretap away? "No," says the 9th. Here, the government got a wiretap on the defendant under one name. He then switched to a different name. The government recognized him as the same person, and in subsequent wiretap applications, used both names...
Medellin: a useful case for reining in executive over-reaching?
Posted on May 26, 2008Finding something positive in the Medellin decision is a challenge: the Supreme Court rejected a state death row prisoner?s claim under the Vienna Convention because the consulate-notification treaty provisions are non-self-executing, so state procedural default rules governed, despite the judgment of the International Court of Justice that the case should have been reviewed to determine whether the violation was prejudicial regardless of procedural default...
Case o' The Week: How Much Hurt from Condo Convert? Crandall
Posted on May 26, 2008We cheat this week and reach back a bit to discuss the very interesting decision in United States v. Crandall, __ F.3d. __ , 2008 WL 2025071 (9th Cir. May 13, 2008), decision available here. While Crandall is a "condo conversion" case, it is destined to become one of the Ninth's leading cases for the tsunami of federal mortgage fraud prosecutions on the horizon...
U.S. v. Dallman, No. 05-30349 (5-19-08).
Posted on May 21, 2008U.S. v. Dallman, No. 05-30349 (5-19-08). This is a relevant conduct case. The defendant came across the Canadian-US border with a duffel bags of marijuana tied together, and with two other co-defendants also with duffel bags. The border patrol spotted the defendant, and he got tangled up in the bags and was arrested, as were his two companions...
Case o' The Week: Amazing Grace Restores Discovery Powers to District Courts
Posted on May 18, 2008The Ninth's en banc decision in W.R. Grace is the most important criminal decision to be issued in -- a week. See United States v. W.R. Grace, __ F.3d __, 2008 WL 2052204 (9th Cir. May 15, 2008) (en banc), decision available here. Coming hard on the heels of the equally excellent Chapman decision, W...
U.S. v. Perez, No. 07-10289 (5-16-08).
Posted on May 16, 2008U.S. v. Perez, No. 07-10289 (5-16-08). The defendant was on SR and was drug tested. It was the second test in as many days. This test was "positive" for cocaine. Defendant protested vigorously. Watched while she gave the sample, the sample, when tested, registered "diluted"...
U.S. v. Caruto, No. 07-50041 (5-12-08).
Posted on May 12, 2008U.S. v. Caruto, No. 07-50041 (5-12-08). The Supremes in Doyle found a due process violation if the prosecutor commented on the defendant's silence. The question here is whether the prosecutor could argue omissions in defendant's post-arrest statement before invoking her Miranda rights...
Case o' The Week: It Pays to Discover, Chapman
Posted on May 11, 2008Can an AUSA's reckless disregard for his or her constitutional discovery obligations serve as a basis for a dismissal of an indictment -- with prejudice? Yep, after a great discovery decision last week by Judge Kim Wardlaw (left). United States v. Chapman __ F...
U.S. v. Mendoza, No. 06-50447 (5-8-08).
Posted on May 09, 2008U.S. v. Mendoza, No. 06-50447 (5-8-08). This is a new opinion relating to a dismissal for a Sixth Amendment speedy trial violation (eight year delay between the indictment and arrest). The original opinion was withdrawn and this one issued. The 9th (T...
Brown v. Farwell, No. 07-15592
Posted on May 06, 2008Brown v. Farwell, No. 07-15592 (5-5-08). "The prosecutor's fallacy" occurs when the prosecutor confuses source probability of DNA with random match probability. That is, a 1 in 10,000 probability of a random DNA match is NOT equated to a 1 in 10,000 chance that the sample did not come from the defendant...
Case o' The Week: Bad facts make bad law, Stoterau and Conditions of Supervised Release for Sex Crimes
Posted on May 02, 2008In a very disappointing decision, Judge Ikuta upholds a laundry-list of supervised release conditions for child porn cases; and, specifically, polygraphs and Abel screening. See United States v. Stoterau, __ F.3d __, 2008 WL 1868997 (9th Cir. Apr. 29, 2008), decision available here...
U.S. v. Tapia-Romero, No. 05-50121
Posted on May 02, 2008U.S. v. Tapia-Romero, No. 05-50121 (5-1-08). The 9th (T. Nelson joined by Beezer and Gould) hold that the "cost of imprisonment" is not a 3553 factor to be considered in sentencing. Defendant argued that cost was a factor to be considered; the court hedged, stating that it was not for an Article III to decide to save the system money...
U.S. v. Stoterau, No. 07-50124
Posted on April 30, 2008U.S. v. Stoterau, No. 07-50124 (4-29-08). Can mind control be a condition of supervised release. It seems that courts are requiring it in sex cases, especially child pornography, when it comes to supervised release conditions. In this case, defendant plead to transporting child pornography after an investigation and charges revolving around pandering and internet sex photos of an underage boy...
U.S. v. Arnold, No. 06-50581 (4-21-08).
Posted on April 29, 2008U.S. v. Arnold, No. 06-50581 (4-21-08). The 9th decides whether offices at LAX may examine the electronic contents of a passenger's laptop without reasonable suspicion. The district court said "no." The 9th (O'Scannlain joined by Smith and Mosman) reverse and permit the search...
Case o' The Week: The First Plus the Fourth Plus the Fourth Plus the Ninth = 0, Arnold
Posted on April 27, 2008It was a grim week for the Fourth Amendment. In Virginia v. Moore, __ S. Ct. __, 2008 WL 1805745 (Apr. 23, 2008), the Supreme Court held that "warrantless arrests for crimes committed in the presence of an arresting officer are reasonable under the Constitution, and that while States are free to regulate such arrests however they desire, state restrictions do not alter the Fourth Amendment's protections...
Counsel Required For Fair And Efficient Implementation Of The Retroactive Crack Amendment
Posted on April 22, 2008The first step to fair and efficient implementation of the retroactive amendment to the crack drug quantity guidelines is appointment of counsel, as has occurred in most Districts. Professor Berman reports this morning here that some judges are refusing to appoint counsel for prisoners sentenced for crack crimes, leaving them to litigate for themselves against the Department of Justice?s cramped view of the sentencing judges? discretion under 18 U...
Case o' The Week: Government takes a "crack" at Judge Patel, Grissom
Posted on April 20, 2008Northern District of California Judge Marilyn H. Patel (right) Did The Right Thing in Grissom: departed downwards from Career Offender guidelines, and focused on crack drug amounts in the count of conviction, instead of the discharged counts, at sentencing...
U.S. v. Reveles-Espinoza, No. 05-50905
Posted on April 17, 2008U.S. v. Reveles-Espinoza, No. 05-50905 (4-15-08). Defendant cultivated marijuana. The government used this as an aggravated felony to deport him. He came back, was caught, and now argues that cultivation is not an aggravated felony because the state statute (California) lists such things as cultivating, planting, harvesting, drying and processing...
U.S. v. Ibrahim, No. 07-50153 (4-14-08).
Posted on April 14, 2008U.S. v. Ibrahim, No. 07-50153 (4-14-08). Defendant was convicted of conspiracy in regards to ecstasy. He got 188 mos. in prison, fined $4.5 million, and ordered to pay $4.5 million in restitution. One little hitch in the government's charges against him, which included forfeiture of $489,829...
Case o' The Week: Beware of the Swedish Drop, Stringer
Posted on April 05, 2008Portland Chief District Judge Ancer Haggerty (left) writes a compelling decision detailing how the Oregon United States Attorney's Office abused civil SEC proceedings while it really developed its criminal case, and dismisses the indictment. Great stuff; brims with righteous indignation and a cause for much celebration -- until it was reversed in a very disappointing decision from the Ninth...
U.S. v. Smith, No. 05-50375 (3-31-08).
Posted on April 04, 2008U.S. v. Smith, No. 05-50375 (3-31-08). Defendant argued that the evidence did not cut both ways because of the jury instruction. The 9th held it did. Defendant was charged with assault with a dangerous weapon. The charge arose from a prison fight...
Case o' The Week: If We Won, Why is He So Happy? Zavala / Carty En Banc
Posted on March 31, 2008Chief Judge Alex Kozinski (right) loses, but wins; the defense wins, but loses. Over two years after oral argument, an en banc panel of the Ninth Circuit declines to adopt a (formal) appellate presumption of reasonableness for an in-guideline sentence...
U.S. v. Crawford, No. 06-30205
Posted on March 31, 2008U.S. v. Crawford, No. 06-30205 (3-28-08). The aftermath of Rita, Gall, and Kimbrough is being played out in the 9th. After the en banc in Carty/Zavala held that there was no presumption of reasonableness in a guideline sentence, and after it wiped clean sentencing precedent in its footnotes, the 9th now is going about affirming guideline sentences as, of course, reasonable...
Harvest v. Castro, No. 05-16879
Posted on March 28, 2008Harvest v. Castro, No. 05-16879 (3-27-09). A district court can modify a conditional grant of a writ, even after the time for its relief has lapsed, but it must be done under Fed R Civ P. 60. Here, the petitioner was granted relief from his first degree murder conviction...
U.S. v. Carty , No. 05-10200 (3-24-08)
Posted on March 25, 2008U.S. v. Carty , No. 05-10200 (3-24-08) (en banc). In an important en banc decision, the 9th (Rymer) considers whether there should be a presumption of reasonableness for a guidelines sentence in the wake of Rita, Gall, and Kimbrough. Considering the sentencing framework after those cases, the advisory nature of the Guidelines, and the fact that no 3553(e) sentencing factor outweighs any other, the 9th declines to embrace a presumption...
Case o' The Week: Child Porn Conviction in (Double) Jeopardy, Davenport
Posted on March 22, 2008Judge Gould (right) delivers a doubly-interesting decision for the defense. See United States v. Winston Davenport, __ F.3d __, 2008 WL 732491 (9th Cir. Mar. 20, 2008), decision available here. First, Judge Gould explains that possession of child pornography is a lesser-included offense of receipt of child pornography: it violates Double Jeopardy to be convicted of both...
U.S. v. Rodriguez, No. 07-10217
Posted on March 11, 2008U.S. v. Rodriguez, No. 07-10217 (3-10-08). "I'm good for [this opinion]. "What does that mean? Lets change it to a response to Miranda warnings, "I'm good for tonight." Is it a waiver? Is it an invocation? It is ambiguous. As such, the police should have clarified rather than keep on questioning the defendant about a gun and silencer found in his car during a DUI stop, and to which defendant eventually admitted ownership...
Case o' The Week: Unto the Breach, Urges Clifton in Cannel
Posted on March 09, 2008Argue with the prosecutor or P.O., lose your third acceptance point. The rule isn't, thankfully, quite that stark in this plain error case, but that'll be the lesson bad AUSAs will take from it. See United States v. Cannel, __ F.3d __, 2008 WL 553742 (9th Cir...
U.S. v. Mendoza, No. 06-50447 (3-3-08).
Posted on March 05, 2008U.S. v. Mendoza, No. 06-50447 (3-3-08). The government waited 8 years between indictment and arrest. Although the defendant was in the Philippines for a good part of that time, the government failed to notify him, or make any attempt to contact him about the tax charges...
Case o' The Week: Ninth Makes Up its Mind on Inability to Make Up its Mind, Bradley and Plurality Decisions
Posted on March 01, 2008Win on one theory, win on two theories -- no matter how you slice it, still a win for the Bay Area's appellate powerhouse Dennis Riordan (left). The Ninth's recent order limiting the holding of a plurality opinion illustrates a trend in the Supremes and Ninth...
U.S. v. Garro, No. 06-50513 (2-28-08).
Posted on February 29, 2008U.S. v. Garro, No. 06-50513 (2-28-08). Sometimes you have to be shocked by the greed, and not the defendant's. Investers were promised a 100% return on their investments, and then 200%. It was like a hedge fund on steroids. If it seemed too good to be true, it was...
Thoughts On The Watson Concurrence And Statutory Construction
Posted on February 26, 2008Federal defenders frequently need to brief statutory construction, pushing back against attempts to expand crimes and punishments beyond the words used in statutes and guidelines. Following threads from a recent concurrence, we can benefit from structural hints on how to brief questions of statutory interpretation...
U.S. v. Turvin, No. 06-30551 (2-26-08).
Posted on February 26, 2008U.S. v. Turvin, No. 06-30551 (2-26-08). For about 14 minutes, it is a lawful traffic stop, and then the police ask an unrelated question: not about the speed limit, but about possible speed in the car. Is this a bad stop? The district court said, "yes," but the 9th (Wallace and Noonan) reverse, holding that asking unrelated questions did not extend the traffic stop unreasonably...
Case o' The Week: Ninth Knocks BOP Rule Denying Year Break for 922(g) RDAP Grads, Arrington
Posted on February 23, 2008Public Defender Hero and fellow blogger Stephen Sady earns a big victory against the BOP, when the Ninth rejects a rule that denies the one-year reduction for § 922(g) inmates (and others) who successfully complete the 500-hour residential drug treatment program (RDAP)...
Raj v. Daniels, No. 07-35090 (2-20-08).
Posted on February 20, 2008Raj v. Daniels, No. 07-35090 (2-20-08). The BOP strikes out again in its efforts to restrict early release to certain prisoners who completed a special inmate drug abuse program. The program was for prisoners convicted of non-violent offenses. For 12 years, the BOP tried to exclude inmates who had used or possessed a firearm as being violent...
Case o' The Week: Fifth Lives In Ninth, Anderson
Posted on February 16, 2008"What about the words 'I plead the Fifth" is unclear, ambiguous, or confusing to a reasonable officer? Nothing."The Honorable M. Margaret McKeown authors a great habeas en banc decision this week, that strongly reaffirms the Fifth Amendment right to counsel -- despite the restrictions of AEDPA...
Harris v. Carter, No. 06-35313
Posted on February 13, 2008Harris v. Carter, No. 06-35313 (2-8-08). "Come on," says the 9th, "give the petitioner a break when he relied on our precedent in not filing sooner." Petitioner is serving a state LWOP sentence for a murder. He appealed his sentence, and when that became final, filed a timely state petition, and then subsequently untimely ones...
Rogue Footnote Creates Need For Cert To Address Expansion Of Almendarez-Torres
Posted on February 12, 2008In three Ninth Circuit cases, stare decisis became a dead letter for those advocating that Sixth Amendment rights should apply to the characteristics, sequence, and existence of prior convictions that increase statutory maximums. Defenders have been arguing that the Armed Career Criminal Act must be construed to avoid constitutional doubts regarding pleading and proof that the defendant has qualifying prior convictions and they occurred on ?occasions different from one another...
Case o' The Week: Ninth Categorically Opposed (Sort of) to Expansion of Categorical Analysis, Jennings
Posted on February 10, 2008An important decision on the categorical/modified categorical analysis reminds us again why we hated to see the Honorable Wallace Tashima take senior status. United States v. Jennings, __ F.3d __, 2008 WL 282366 (9th Cir. Feb. 4, 2008), decision available here...
Ninth Circuit Practitioners: Time To Sign Up For Electronic Notifications
Posted on February 06, 2008It?s time for all appellate practioners to join the Ninth Circuit as it strides into the 20th Century by taking the first step toward electronic case management and filings. On January 25, 2008, the Clerk?s office provided registration instructions for a new system starting on March 3, 2008, that will provide electronic notification by email ? ?Notice of Docket Activity? ? of any actions the Ninth Circuit takes in your case...
U.S. v. Jennings, No. 06-30190
Posted on February 06, 2008U.S. v. Jennings, No. 06-30190 (2-4-08). Does the rationale behind the whole categorization of prior convictions "elude" you? Blame Taylor, Shepard, and progeny. Here, defendant was convicted of being a prohibited possessor of a firearm. He has three priors, and was AACA-fied (yes, a new term just coined)...
Case o' The Week: Ninth Falls for Government's Snipe Hunt, New Fourth Rule
Posted on February 03, 2008Do folks really still fall for the "snipe hunt" gag? The Ninth does here. Judge Bybee creates a new rule -- and a bad one, at that -- for the "emergency" exception to the Fourth Amendment warrant requirement. United States v. Sonny Snipe, __ F.3d __, 2008 WL 216996 (9th Cir...
U.S. v. Snipe, No. 06-30215 (1-28-08).
Posted on January 31, 2008U.S. v. Snipe, No. 06-30215 (1-28-08). Home decorating/entertainment tips for criminal suspects: if the police pop over for a quick visit, it is not necessarily rude to hide the drugs. Here, the police received a call from a man screaming that he needed emergency help, he was hurt, and then the call was disconnected...
Case o' The Week: Paris is Worth a Mass, Cherer
Posted on January 26, 2008The Guidelines have no clothes -- and Gall and Kimbrough give experienced federal jurists just the platform they need to bluntly point this out. The latest broadside fired at the guideline edifice comes in a great dissent by Judge Noonan in United States v...
U.S. v. Cherer, No. 06-10642 (1-25-08).
Posted on January 25, 2008U.S. v. Cherer, No. 06-10642 (1-25-08). "Be careful what you wish for." The defendant was caught in a sting operation traveling to visit what he thought was a 14-year old girl. That "girl" was a middle-aged FBI agent. At trial (yes, trial), the defendant argued that he did not know the girl was 14, and there was some role-playing...
Jackson v. Brown, No. 04-99006
Posted on January 23, 2008Jackson v. Brown, No. 04-99006 (1-23-08). "A promise made is a debt unpaid." The state's promise to jailhouse informants was made, paid, but not disclosed. Moreover, the state prosecutor stayed silent when the informant, under oath, testified that no promises were made of any kind...
U.S. v. Lowry, No. 06-10469 (1-16-08).
Posted on January 22, 2008U.S. v. Lowry, No. 06-10469 (1-16-08). If a tree falls in a forest, and only an aboriginal hears it, does the Forest Service care? You betcha. The 9th tackles the issue of whether an Indian, laying claim to Forest Service land, bears the burden of proving she has individual aboriginal title or does the Forest Service have to prove it as an element...
Case o' The Week: A Cure for "Guidelinitus", Castendada
Posted on January 20, 2008Sixth Circuit Senior Judge Gilbert S. Merritt (right) had nothing to do with the Ninth's Case o' The Week in United States v. Castenada, __ F.3d __, 2008 WL 126641 (9th Cir. Jan. 15, 2008), decision available here. Judge Merritt's recent dissent on guideline practice after Gall and Kimbrough, however, is such an honest and candid assessment of federal sentencing that it deserves national recognition (and heavy citation in sentencing memoranda)...
U.S. v. Castenada, No. 05-10372
Posted on January 15, 2008U.S. v. Castenada, No. 05-10372 (1-15-08). In one of the first post-Kimbrough decisions, the 9th remands a crack conspiracy conviction for resentencing. At sentencing, the district court acknowledged that the crack penalties may be "out of whack": but it was not for the district court to change them; that was up to Congress...
Case o' The Week: Ninth Sputters About Loss Amount, Tulaner
Posted on January 14, 2008Know much about platinum sputtering disks? Neither do we, except that they're wicked expensive - $200,000 a pop. In an important (though brief) new case on loss amount in fraud cases, Judge Tallman upholds hitting a defendant with twelve of these disks for sentencing (a loss of $2...
U.S. v. Calderon-Segura, No. 05-50820
Posted on January 11, 2008U.S. v. Calderon-Segura, No. 05-50820 (1-9-08). This an appeal from a 1326 conviction and failure to allege prior conviction and removal. The 9th noted that, under Salazar-Lopez, the indictment should have alleged, in addition to facts of the prior removal and subsequent reentry, the date of the prior removal or that it occurred after a qualifying conviction...
Case o' The Week: Ninth Salehs Forth with Bad Miranda Decision
Posted on January 06, 2008A disappointing habeas loss tolerates a non-Mirandized phone interview by a cop, of an inmate in custody -- when the inmate initiates the call. Saleh v. Fleming, __ F.3d __, 2008 WL 43719 (9th Cir. Jan. 3, 2007), decision available herePlayers: Hard-fought appeal by Seattle FPD R&W Attorney Corey Endo...
David v. Silva, No. 05-16821 (1-2-08).
Posted on January 03, 2008David v. Silva, No. 05-16821 (1-2-08). The state cannot use a "failure to exhaust" bar in this petitioner's appeal. The petitioner was serving a 9-year sentence when a guard messed with his food. A food fight ensued, and the petitioner was docked 150 days good time...
U.S. v. Lococo et al, No. 05-50550
Posted on January 02, 2008U.S. v. Lococo et al, No. 05-50550 (12-27-07). This appeal challenged wiretap evidence, and an assortment of sentencing issues. The 9th gave the issues short shrift in this per curiam opinion. The 9th found that the government's wiretap application adequately described the various steps it tried to take in investigating the offense, including seeking cooperators, hidden and direct surveillance, trash pick-up, and so forth...
Case o' The Week: Ninth Gets "Cheek"-y with Tax Evasion Defendant, Cohen
Posted on December 30, 2007One of the last decisions of '07 is a very good Tallman opinion emphasizing the right to a defense expert, and explaining the mens rea requirements in tax evasion cases. United States v. Lawrence Cohen, __ F.3d __, 2007 WL 4485629 (9th Cir. Dec. 26, 2007), decision available here...
U.S. v. Cohen et al, No. 06-10145
Posted on December 26, 2007U.S. v. Cohen et al, No. 06-10145 (12-26-07). Tax protestors were convicted, and the lead protestor, Schiff, also was pro se, where he managed to get himself cited numerous times for summary criminal contempt. On appeal, the 9th (Tallman joined by Thomas and Ikuta) addressed mental condition testimony of codefendant Cohen and the contempt convictions of Schiff...
Case o' The Week: Catholic, Buddist Zimmerman - and that's OK, in the Ninth
Posted on December 21, 2007Merry Christmas. Happy Hanukkah. Joyous Kwanzaa. Blessed solstice (left). The Ninth doesn't care if your beliefs fit neatly into any particular religion: if your convictions are sincerely held, the Ninth (and the Religious Freedom Restoration Act) has your back...
U.S. v. Biagon, No. 06-10479 (12-17-07).
Posted on December 21, 2007U.S. v. Biagon, No. 06-10479 (12-17-07). The court acknowledged the "elephant in the room" at sentencing, but when the defendant asked that the court be cleared and sealed so he could address "the elephant," the court said "no." Acknowledgement was enough...
Byrd v. Lewis, No. 06-15977 (12-11-07).
Posted on December 17, 2007Byrd v. Lewis, No. 06-15977 (12-11-07). Petitioner, serving 25- to life for stealing a car under California's three strike law, gets relief from the 9th (Rawlison and Restani). The petitioner argued that he had "consent" to borrow a friend's car for several days, and when stopped, the radio was gone, belongings were gone, it would not go in reverse, and later, could not move forward...
Case o' The Week: AFPD wins Betts Against AUSA with Ninth's Approval
Posted on December 15, 2007In a good decision on conditions of supervised release, Judge Kleinfeld reaffirms the frequently-invoked liberty interest of having a beer in your recliner while watching a ball game. United States v. Brandon Betts, __ F.3d __, 2007 WL 4355365 (9th Cir...
Crater v. Galaza, No. 05-17027
Posted on December 10, 2007Crater v. Galaza, No. 05-17027 (12-6-07). The 9th denies rehearing en banc in this case, but there is a spirited dissent by Reinhardt, joined by Pregerson, Gould, Paez, and Berzon, arguing that AEDPA violates the separation of powers doctrine. It does so by prohibiting the ordinary principles of stare decisis in habeas cases, thereby interfering with the federal judiciary's judicial process...
Case o' The Week: Ninth Could Use a (Learned) Hand in Conspiracy Cases, Macias-Valencia
Posted on December 09, 2007You have to actually possess sufficient amounts of specific drugs to get a mandatory minimum sentence under federal drug law. See 21 USC Section 841(a). (Unless, of course, you're charged with conspiring to violate those laws . . . in which case, no actual drugs need to be involved at all, to earn a ten year mandatory minimum sentence...
Cooper v. Brown, No. 05-99004 (12-4-07).
Posted on December 06, 2007Cooper v. Brown, No. 05-99004 (12-4-07). The 9th affirms the denial of a habeas petition. The petitioner asks for various tests to be conducted, and they were, with the result that innocence was not established. The 9th (Rymer joined by Gould and with a concurrence by McKeown) holds that neither the actual innocence "gateway" nor AEDPA standards were meet for the claims...
Case o' The Week: Snitch Golden Despite Vouching, US v. Brooks
Posted on December 02, 2007A disappointing loss on plain error review still offers some very useful language to fend off prosecutorial vouching. United States v. Brooks, __ F.3d __, 2007 WL 4198177 (9th Cir. Nov. 29, 2007), decision available here. The decision is particularly helpful in cases involving snitches, and wiretaps...
Guantánamo Book Club II
Posted on December 01, 2007Last fall, I posted a list of ten readings recommended for those interested in the representation of Guantánamo prisoners (here). On the eve of the Supreme Court argument in Boumediene, I have six additions to the list. 1. Clive Stafford Smith, Eight O'Clock Ferry To The Windward Side: This is a wonderful book by one of the leading lawyers for Guantánamo prisoners, a former death penalty defender and current attorney for the human rights organization Reprieve...
U.S. v. Brooks, No. 05-30261 (11-29-07).
Posted on November 30, 2007U.S. v. Brooks, No. 05-30261 (11-29-07). Vouching is bad. The 9th counts the ways in this opinion, although it finds such bolstering ultimately harmless. Still, this is an interesting and useful opinion. The 9th (Guilford joined by Kozinski and Fischer) unequivocally states that the usual questions of a cooperating witness about why they have to tell the truth (i...
Doe v. Woodford, No. 06-16154 (11-27-07).
Posted on November 28, 2007Doe v. Woodford, No. 06-16154 (11-27-07). This habeas concerned a plea to a sentence of 25 to life for a planned murder. The petitioner, a juvenile, alleges IAC because his lawyer did not undertake additional mental health investigation and that he allowed detectives to interview petitioner...
Case o' The Week: Congress isn't bad enough -- Ninth Limits its Own j/x (Again), United States v. Garcia
Posted on November 25, 2007Hard to tell, sometimes, who is more eager to strip the Ninth of its jurisdiction to hear criminal appeals -- Congress, or the Ninth itself. See United States v. Adrian Garcia, __ F.3d __, 2007 WL 4096184 (9th Cir. Nov. 19, 2007), decision available here...
Search and Seizure Update
Posted on November 21, 2007The November 2007 version of Developments in Federal Search and Seizure Law is now available on the Oregon Federal Public Defender website here. We have been collecting Fourth Amendment cases for over ten years, integrating defense wins into an outline that provides counterpoints to the trends away from protection of individual rights...
U.S. v. Garcia et al, No. 05-30356
Posted on November 21, 2007U.S. v. Garcia et al, No. 05-30356 (11-19-07). A promise made is the sentence to be paid. A specific stipulated sentence generally is a jurisdictional bar. Defendants here were sentenced pursuant to a stipulated sentencing range under Rule 11(c)(1)(C)...
Case o' The Week: Ninth Bows to State Secrets Privilege (even though Feds blew disclosure), Al-Haramain
Posted on November 18, 2007A slow week for criminal opinions allows a look at an interesting new case of national importance: Al-Haramain Islamic Foundation, Inc. v. Bush, __ F.3d __, 2007 WL 3407182 (9th Cir. Nov. 16, 2007), decision available here. In Al-Haramain, a very good panel of Hawkins, Pregerson and McKeown (pictured during argument, above) still defers to the government, and uphold the government?s reliance on the ?state secrets? privilege...
Case o' The Week: Ninth Can't Cope with Forced Meds on Supervised Release,
Posted on November 09, 2007Forced medication (like chemical castration) to discourage criminal behavior and ensure good citizenship? Sound like A Clockwork Orange? Judge Thomas and the Ninth thinks so too -- in a particularly thoughtful decision that discusses the important liberty interests implicated by mandatory medication as a condition of supervised release...
U.S. v. Gamboa-Cardenas, No. 05-50151
Posted on November 08, 2007U.S. v. Gamboa-Cardenas, No. 05-50151 (11-8-07). The "safety valve" sinks in the jurisdictional Maritime waters. Defendants were convicted of drug crimes under the Maritime Drug Law Enforcement Act. The sentencing court applied the safety valve to the mandatory minimums, then codified at 46 USC 1903...
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What are the differences in the jurisdictions of State and Federal Courts?
U.S. Supreme Court cases must be followed by all courts nationwide. State Suprem...
Is it libel to write blog posts and/or online reviews about a local business that defames one's reputation?
Libel is the form of defamation expressed in fixed-- usually written form. Sland...
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