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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

Case o' The Week: Fraud loss of $245,126 is not over $10,000, Kawashima and Taylor Categorical Analysis

Posted on July 13, 2008
A 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, 2008
The 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, 2008
U.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, 2008
Edwin 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...

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U.S. v. Davis, No. 07-30219 (6-30-08).

Posted on July 01, 2008
U.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, 2008
U.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, 2008
Ever 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, 2008
Butler 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, 2008
Looking 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, 2008
Wiretap 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, 2008
U.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, 2008
Senior 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, 2008
The 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, 2008
U.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, 2008
U.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, 2008
Finding 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, 2008
We 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, 2008
U.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, 2008
The 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, 2008
U.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. Crandall, No. 06-50592

Posted on May 16, 2008
U.S. v. Crandall, No. 06-50592 (5-13-08). The convictions for fraud were affirmed in this instance real estate scheme of fraudulent converting apartments to condos. The 9th though (Holland joined by Farris and Smith) vacated the sentence because the guidelines for loss were misapplied...

U.S. v. Caruto, No. 07-50041 (5-12-08).

Posted on May 12, 2008
U.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, 2008
Can 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, 2008
U.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, 2008
Brown 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, 2008
In 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, 2008
U.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, 2008
U.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, 2008
U.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, 2008
It 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...

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