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Federal Judiciary

Ninth Circuit Blog

Case Summaries and Commentary by Federal Defenders of the Ninth Circuit

Post Frequency: 3.6/day

Last Entry: June 17, 2013 at 14:04:00

US v. Gillenwater, No. 11-30363

Posted on June 17, 2013
US v. Gillenwater, No. 11-30363 (6-17-13)(Paez with Fisher and Gould). This is an important and interesting decision: Does a defendant have a right to testify at his competency hearing under 18 USC 4241 and 4247? Yes. Can the government use that testimony at trial? Only for impeachment...

Aleman v. Uribe, No. 09-55837

Posted on June 17, 2013
Aleman v. Uribe, No. 09-55837 (6-14-13)(Gould with Wardlaw and Wolf, Sr. D.J.) "Hey, it wasn't a Batson violation, it was a mistake" was the explanation of the prosecutor in striking a Hispanic. The prosecutor explained he meant to strike another, had been ill during voir dire, made bad notes, and attributed a comment made by another prospective juror to the struck juror...

US v. Needham, No. 12-50097 (6-14-13)(M.

Posted on June 17, 2013
US v. Needham, No. 12-50097 (6-14-13)(M. Smith with concurrence by Berzon and concurrence by Tallman). The defendant allegedly, inappropriately touched a young boy in the restroom. Some police work with a video and credit card from a nearby Jamba Juice stand, led police to the defendant...

Case o' The Week: Living with Leon -- Needham, Leon, and PC for Child Porn Search Warrants

Posted on June 16, 2013
In the great flick Leon, the hitman hero is a ?cleaner? who quickly and efficiently resolves messes -- and isn?t terribly interested in what the law actually requires. Required viewing before grappling with the Supreme?s line of Leon?good faith? jurisprudence...

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US v. Gonzalez-Aguilar, No. 12-50048

Posted on June 14, 2013
US v. Gonzalez-Aguilar, No. 12-50048 (6-13-13)(Tallman with Berzon and M. Smith). The government promised to recommend the low end of the guideline sentence. It did so, in a sentencing memo, which also pointed out the defendant's long criminal history...

US v. Muniz-Jaquez, No. 12-50056

Posted on June 10, 2013
US v. Muniz-Jaquez, No. 12-50056 (9th Cir. June 10, 2013)(Goodwin with Kleinfeld and Silverman).In the middle of a 1326 trial, where the defense was "official restraint," a testifying agent indicated that the were border patrol dispatch tapes. The prosecutor had not been aware of them...

Case o' The Week: Another Brick in the Wall - Morgan, Miranda and Confessions

Posted on June 09, 2013
Bricks of marijuana make a lovely green backdrop, for booking photographs of suspects accused of drug-smuggling. (Any subsequent confession is an inadvertent coincidence). United States v. Morgan,2013 WL 2380467 (9th Cir. June 3, 2013), decision available here...

Case o' The Week: Ninth Constrains Plain Bane -- Joseph and Plain Error Review for Sentencing Mistakes

Posted on June 02, 2013
Should an appellate court correct a sentencing error, when the mistake means our client is doing more jail time than necessary?The Hon. Richard Paez Sad to have to even ask the question ? but happy to tout the Ninth?s answer...

Case o' The Week: The Ninth Gets Petty -- Stanfill El, Petty Offenses, and Jury Trials

Posted on May 27, 2013
All over the country, interns are beginning their summer of service at federal courts, Defender offices, and various federal agencies. An opportune time to revisit Federal Intern Rule #1: keep the fistfights off of federal jurisdiction, please...

Case o' The Week: Ninth in a Speculative Mood - Ramirez and Sua Sponte "Don't Speculate" Instructions

Posted on May 19, 2013
Speculation by a jury is a dangerous thing. It can lead to questioning the government?s case, and ? if not kept in check ? reasonable doubt. United States v. Ramirez, 2013 WL 1789529 (9th Cir. Apr. 29. 2013), decision available here. Players: Decision by CJ Kozinski, joined by Judges McKeown and M...

Case o' The Week: Ninth Hears Loud Hawk's Cry - Evidence Lost by Gov't and Adverse Inference Instructions

Posted on May 12, 2013
Kennedy is a critical swing vote, and his concurring opinions have a way of becoming the controlling law of the land. (Even back in ?79). United States v. Sivilla,2013 WL 1876649 (9th Cir. May 7, 2013), decision available here.Players:Decision by Judge Noonan, joined by Judges Pregerson and Paez...

McCullough v. Graber, No. 11-16920

Posted on May 10, 2013
McCullough v. Graber, No. 11-16920 (9th Cir. May 10, 2013) (Burgess, D.J., with Farris and N.R. Smith, JJ.)The Ninth Circuit dismissed as moot an appeal from an order denying a federal prisoner's � 2241 habeas petition challenging BOP's rejection of his application to the Second Chance Act's pilot program for elderly offenders, which no longer exists...

United States v. Sandoval-Orellana,

Posted on May 09, 2013
United States v. Sandoval-Orellana, No. 12-50095 (9th Cir. May 9, 2013) (Beistline, D.J., with Thomas and Hurwitz, JJ.) The Ninth Circuit affirmed a guilty-plea conviction and sentence for illegal reentry following deportation. The court held that the defendant's prior conviction under Cal...

US v. Mancuso, No. 12-30174 (5-1-13)(Bea

Posted on May 09, 2013
US v. Mancuso, No. 12-30174 (5-1-13)(Bea with Clifton and Mahan). As the opinion describes it: "Mancuso was a dentist who distributed a lot more than free toothbrushes to his friends and acquaintances in Billings, Montana." Indeed, his charges included cocaine, which lead to various federal charges of possession with intent to distribute, distribution, and maintaining a drug house...

[Ed. note -- I'm filling in for

Posted on May 08, 2013
[Ed. note -- I'm filling in for Jon for a couple of days while he's occupied with other business. As a reminder, I try to summarize the court's holding in the first paragraph, and give people enough information to decide whether to read on. And at the bottom is a link to the court's opinion...

DOJ?s Inspector General Finds The BOP?s Compassionate Release Program ?Poorly Managed? And ?Implemented Inconsistently?

Posted on May 02, 2013
Just over a year ago, we posted a video of an interview with our client and former federal prisoner, Phillip Smith, who had been denied access to the sentence reduction program known as compassionate release under 18 U.S.C. � 3582(c). Phillip had leukemia that was not responding to treatment, but the Bureau of Prisons (BOP) refused to allow the judge to determine whether these ?extraordinary and compelling reasons" (in the language of the statute) warranted a sentence reduction...

U.S. v. Ramirez, No. 11-50346 (04-29-13)

Posted on April 30, 2013
U.S. v. Ramirez, No. 11-50346 (04-29-13) (Kozinski with McKeown and M. Smith)The judge's sua sponte instruction to the jury that they should not speculate as to the government did not call a witness forbid the jury from doing something it should, indeed, was required to do...

Case o' The Week: Ninth Won't Dance Alaskan Two-Step -- Barnes and Seibert two-step interrogations

Posted on April 28, 2013
Who can resist the sweet allure of the Seibert two-step, an effective interrogation dance that leads to full confessions and meth convictions? The Ninth, thankfully. United States v. Barnes, 2013 WL 1668966 (9th Cir. Apr. 18, 2013), opinion available here...

Case o' The Week: Third & Sixth Muddle Ninth's Fourth - McClendon and Fourth Amendment Seizures

Posted on April 21, 2013
Sawed-off shotgun in the backpack, pistol in the waistband, ski mask and no snow to be seen. Bad facts make new law in the Ninth on Fourth Amendment seizure. United States v. McClendon, 2013 WL 1693958 (9th Cir. Apr. 19, 2013), decision available here...

U.S. v. Barnes, No. 11-30107 (4-18-13)(per

Posted on April 19, 2013
U.S. v. Barnes, No. 11-30107 (4-18-13)(per curiam with Hawkins, McKeown, and Bea)You know that a Miranda violation has to be pretty blatant to warrant a per curiam reversal of a drug conviction and suppression of the confession. The defendant here, while on probation, was suspected of engaging drug distribution, helped by a friendly CI...

U.S. v. Trujillo, No. 11-50353

Posted on April 17, 2013
U.S. v. Trujillo, No. 11-50353 (04-16-13) (Canby with Reinhardt and Wardlaw)There is no jurisdictional bar to a second bite of the 3582(c)(2) apple (retroactive guidelines amendment). The defendant, in 1993, was sentenced to 30 years. The Commission subsequently lowered the guidelines range and Defendant moved for a reduction, which was denied...

U.S. v. Garrido, No. 06-50717 (4-15-13)(Pregerson

Posted on April 16, 2013
U.S. v. Garrido, No. 06-50717 (4-15-13)(Pregerson with Noonan and Paez)The opinion is long, the counts numerous, and the crimes white collar. Bottom line is that in this bribery, kickback, and money laundering scheme, the convictions for "honest services" are reversed pursuant to Skilling's overbroadness holding...

Case o' The Week: Bad Facts Make Good Law -- Yuman-Hernandez and Sentencing Entrapment

Posted on April 14, 2013
The Ninth delivers an opinion that has everything we could want: thoughtful clarification of a defense theory that helps ease our burden, rejection of a government approach that would make a defense functionally impossible, and a stern warning that the Circuit takes a ?hard look? at a particularly troubling category of cases...

U.S. v. Yuman-Hernandez, No. 11-50219

Posted on April 09, 2013
U.S. v. Yuman-Hernandez, No. 11-50219 (04-08-13) (Goodwin with Fletcher and Korman, Sr. DJ)It seemed like such an easy way to make a lot of money: knock over a stash house. There were 20 to 25 kilos of cocaine inside, and it promised to be an easy in and out...

Case o' The Week: A Taxing Decision - Jennings and Sophisticated Means

Posted on April 07, 2013
With the Judiciary battered by reduced federal funding, on the eve of the April 15 filing deadline, in a case submitted without oral argument, will the government prevail when tax evaders appeal a guideline enhancement? As sure as death and taxes...

U.S. v. Augustine, No. 12-50061

Posted on April 04, 2013
U.S. v. Augustine, No. 12-50061 (04-03-13) (Hurwitz with Callahan and Ikuta)In the Fair Sentencing Act, Congress finally addressed, somewhat, the inequitable disparity between the sentences for crack and the sentences for powder cocaine. The defendant here was sentenced before the FSA went into effect, and his sentence, both mandatory minimum and guidelines, was higher than he would have gotten under the FSA...

U.S. v. LKAV, Juvenile Male, No.

Posted on April 03, 2013
U.S. v. LKAV, Juvenile Male, No. 12-10483 (04-02-13) (N. Smith with Farris and Burgess, D.J. Alaska)(Note: This is an Az FPD case)Defendant, a juvenile male, was charged with murder under the Federal Juvenile Delinquency Act, 18 U.S.C. 5031-42. He was 17 at the time (now 21)...

U.S. v. Reyes-Ceja, No. 11-50167

Posted on April 01, 2013
U.S. v. Reyes-Ceja, No. 11-50167 (04-01-13)An undocumented previously deported defendant is serving a state sentence. The feds find him, and charge him with a 1326 (re-entry). To add insult to injury, and more important, criminal history points, he gets two extra points for being under a criminal justice sentence when he "committed" this offense by being "found in" in the United States...

Case o' The Week: "Must Be Lying" Must Be Error (But Harmless!) - Ruiz and Closing Arguments

Posted on March 30, 2013
Not content to merely allude to improper arguments, an AUSA emphasizes them in a Powerpoint presentation during closing. The result? ?Sadly condoned by the incantation: ?harmless error review.? United States v. Ruiz, 2013 WL 1197945 (9th Cir...

U.S. v. Jinian, No. 11-10593 (03-26-13)

Posted on March 27, 2013
U.S. v. Jinian, No. 11-10593 (03-26-13) (Murguia with Nelson; concurrence by Christen)When the cat's away, the mice will play...or defraud. Here, the board of directors was in Europe; the defendant was the CEO. He authorized the cutting of checks from one company under his control in excess of his salary, and to get advances...

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