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Federal Judiciary

Ninth Circuit Blog

Case Summaries and Commentary by Federal Defenders of the Ninth Circuit

Post Frequency: 1.3/day

Last Entry: November 01, 2020 at 14:48:00

U.S. v. Bays, Jr., 09-30124 (12-17-09).

Posted on December 17, 2009
U.S. v. Bays, Jr., 09-30124 (12-17-09). "Pardon me," asked the defendant on appeal from a drug and gun sentence, "but shouldn't a pardon of a state conviction not count for criminal history?" A pardon, answers the 9th, only does not count if it removes the conviction completely and treats it like it never occurred...

Case o' The Week: Stop Invasive Herring -- Amended Monghur Decision and Fourth Amendment Exclusionary Rule

Posted on December 13, 2009
Nothing is worse than Herring gone bad. Happily, this week the Ninth takes out some bad Herring bits from an otherwise admirable opinion. United States v. Monghur, __ F.3d __, 2009 WL 4432567 (9th Cir. Dec. 4, 2009) (Ord. & Amend. Op.), decision available here...

Cox v. Ayers, No. 07-99010 (12-10-09).

Posted on December 11, 2009
Cox v. Ayers, No. 07-99010 (12-10-09). Recently, in Pinholster v. Ayers, No. 03-99003, an en banc 9th granted habeas relief due to IAC for failure to develop evidence of excruciating childhood abuse. Now, in this case, the 9th (Graber joined by Wardlaw with a dissent by Pregerson) affirm the denial of habeas relief on IAC during sentencing...

Pinholster v. Ayers, No. 03-99003

Posted on December 09, 2009
Pinholster v. Ayers, No. 03-99003 (12-9-09) (en banc). Sitting en banc, the 9th affirms the district court?s granting of habeas relief because of IAC in the sentencing phase of this capital case. The 9th majority opinion was written by M. Smith (joined by Pregerson, Reinhardt, Wardlaw, Paez, Berzon and Bybee)...

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Case o' The Week: Eleven is Better, Macinas-Flores

Posted on December 06, 2009
Like Nigel Tufnel, the Arizona Federal Public Defender likes Eleven. Rule Eleven of the Federal Rules of Criminal Procedure, to be precise -- the Rule that brought that office two big victories in the Ninth this week. See United States v. Macinas-Flores, 2009 WL 4282018 (9th Cir...

U.S. v. Curtin, No. 08-10394 (12-4-09).

Posted on December 04, 2009
U.S. v. Curtin, No. 08-10394 (12-4-09). On a retrial, the 9th brings the curtain down on defendant's conviction of travel to engage in a sexual act and coercion. In an en banc decision, the 9th kept out salacious stories of adult sexual misbehavior with juveniles found on the defendant's PDA...

U.S. v. Thompson, No. 07-50351

Posted on December 03, 2009
U.S. v. Thompson, No. 07-50351 (12-3-09). The defendant, charged with drug crimes and being a prohibited possessor of a firearm, wanted counsel, did not want counsel, wanted stand-by counsel, and then wanted to represent himself. There were trips to the psychiatric wards for delusions, the MCC for competency, and a report about malingering...

Two decisions concerning Fed. R.

Posted on December 03, 2009
Two decisions concerning Fed. R. Crim. P. 11 (changes of plea) and due process. Both arise from Arizona. The first concerns en masse changes of plea in Operation Streamline and the second the extent of explanation necessary in exercising discretion in rejecting a plea...

U.S. v. Truong, No. 08-10446 (12-1-09).

Posted on December 01, 2009
U.S. v. Truong, No. 08-10446 (12-1-09). Just in time for the holiday gift-giving season, the 9th holds that stolen retail gift cards can be considered an "access device" under 1029(e)(1) because it gives access to an account. The defendant here stole gift cards, duplicated them, and then replaced them back on the store's shelves, but he kept the PINs so that he could subsequently access the accounts when the cards were activated...

U.S. v. Berger, No. 08-50171 (11-30-09).

Posted on November 30, 2009
U.S. v. Berger, No. 08-50171 (11-30-09). This is an appeal after a remand for resentencing on securities fraud. There are two interesting issues: (1) calculation of loss; and (2) standard of proof for such loss. The defendant was convicted of securities fraud...

Case o' The Week: From Bad to Worse - Mohsen and Mid-Deliberation Contact with Jury (Without Counsel)

Posted on November 29, 2009
To have the federal judge presiding over your civil case refer you to the USAO for perjury prosecution is bad news. To get caught planning your escape to the Caymans on the eve of your trial is worse. And then, when a jailhouse snitch accuses of you plotting to kill the judge: well, it is all downhill from there...

U.S. v. Mohsen, No. 07-10059 (11-25-09).

Posted on November 25, 2009
U.S. v. Mohsen, No. 07-10059 (11-25-09). At trial, defendant was convicted of conspiracy, fraud, perjury, subornation of perjury, obstruction of justice, and contempt of court. On appeal, he raised numerous issues attacking the sufficiency of evidence, jury instruction error, prosecutorial misconduct, and sufficiency of the evidence...

U.S. v. Tupuola, No. 08-10422 (11-24-09).

Posted on November 25, 2009
U.S. v. Tupuola, No. 08-10422 (11-24-09). Defendant was convicted of selling crack, but in 2000 was sentenced as a career offender under USSG 4B1.1. He had argued for a downward departure based on the disparity between the crack guidelines (51 to 63 months) and the career offender guidelines (188 to 235 months)...

Case o' The Week: Five Federal Circuits, Jumping on a Bed, Three Fell Off and Bumped Their Heads - Mahan

Posted on November 23, 2009
In Mahan, the Ninth creates a new rule and joins five other federal circuits that have held exchanging guns for drugs is using firearms "in furtherance" of drug trafficking, in violation of 18 USC � 924(c). United States v.William Mahan, __ F.3d __, 2009 WL 3807100 (9th Cir...

U.S. v. Mahan, No. 08-30475 (11-16-09).

Posted on November 19, 2009
U.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, 2009
The 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. Ambriz-Ambriz, No. 08-30431

Posted on November 10, 2009
U.S. v. Ambriz-Ambriz, No. 08-30431 (11-10-09). Defendant tried to go to Canada for a medical procedure. Unfortunately for him, he was not allowed in, and when he tried to return to the United States, he was discovered to have been a previously-removed alien...

U.S. v. Ruckes, No. 08- 30088 (11-9-09).

Posted on November 10, 2009
U.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, 2009
One 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, 2009
U.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, 2009
U.S. v. Garcia-Villalba, No. 05-30506 (11-2-09). The 9th affirms the denial of 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, 2009
Federal 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, 2009
U.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, 2009
U.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, 2009
Who 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, 2009
United 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, 2009
U.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, 2009
U.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, 2009
U.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, 2009
Another 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...

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