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Federal Judiciary

Ninth Circuit Blog

Case Summaries and Commentary by Federal Defenders of the Ninth Circuit

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

U.S. v. Lightfoot, No. 09-30063

Posted on November 30, 2010
U.S. v. Lightfoot, No. 09-30063 (11-30-10) (Fernandez with B. Fletcher and Bybee). The 9th holds that an appeal waiver does not bar reconsideration of a reduced guideline range as a result of a retroactive application. The defendant had plead guilty to felonies, one of which was distribution of crack...

U.S. v. Johnson, No. 09-50292 (11-29-10)

Posted on November 29, 2010
U.S. v. Johnson, No. 09-50292 (11-29-10) (Strom, Sr. D.J., D. Neb. with Fisher and Bybee). Defendant plead guilty to distributing crack cocaine. His guidelines were 57 to 71 months. His sentence, though, was for 120 months. Unfortunately, he waived his right of appeal...

Case o' The Week: Ninth Steel-s Interlocutory J/x from Defendant -- Steel, Double Jeopardy and Interlocutory Appeals

Posted on November 28, 2010
There's a very short list of permissible interlocutory appeals for the defense. Challenges to sufficiency of the evidence (on remand), it turns out, aren't on that list. United States v. William A. Steel, 2010 WL 4723187 (9th Cir. Nov. 23, 2010), decision available here...

Judge Smith, The Fourth Amendment, And Technological Innovations In Surveillance

Posted on November 24, 2010
Judge Stephen Smith from the Southern District of Texas filed an opinion on October 29th that continues his important role in engaging on the issues deferred by the Supreme Court in City of Ontario v. Quon, 130 S. Ct. 2610 (2010). In Quon, Justice Kennedy identified but ultimately avoided the big Fourth Amendment questions implicated by technological innovations in communications such as, in that case, examination of text messages on a government pager...

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Douglas v. Jacquez, No. 08-17478

Posted on November 24, 2010
Douglas v. Jacquez, No. 08-17478 (11-24-10) (Bea with Callahan; Graber dissenting).This is an interesting decision as to whether a court, granting habeas relief, can order the state court to enter judgment on a lesser included offense. This California state habeas was filed regarding a conviction for first-degree murder during a robbery and a conviction for arson of an inhabited structure...

Gollehon v. Mahoney, No. 09-99011

Posted on November 23, 2010
Gollehon v. Mahoney, No. 09-99011 (11-22-10) (O'Scannlain with Farris and Wardlaw). The petitioner was convicted and sentenced to death in a Montana prison murder. He was convicted of "deliberate homicide by accountability," as a way of the jury convicting him and a co-defendant without having to find who struck the victim with baseball bats...

U.S. v. Steel, No. 09-50335 (11-23-10)

Posted on November 23, 2010
U.S. v. Steel, No. 09-50335 (11-23-10) (Graber with Wallace and Mills, Sr. D.J., C.D.Ill)."Wait, wait, before retrial, I get an appeal on the sufficiency of evidence." That is essentially the position of the defendant, who got a remand for an Allen instruction error on his first appeal from a Hobbs Act conviction...

U.S. v. Spangle, No. 09-50508 (11-19-10)

Posted on November 22, 2010
U.S. v. Spangle, No. 09-50508 (11-19-10) (Tallman with Clifton and Bea). The 9th affirms the judgment and sentence in a SR proceeding. Of interest is that Kozinski, Chief Judge, sat by designation as a district court judge on this matter. The defendant, with prior bank robberies and mailing threatening letters, had a long history of SR violations...

Case o' The Week: Booker and the Bard - Todd and Mens Rea

Posted on November 20, 2010
"As William Shakespeare said of time in Sonnet 115, its 'million'd accidents creep in' and nothing is completely stable, no plan is beyond alteration." United States v. Todd, 2010 WL 4596380 (9th Cir. Nov. 15, 2010) (as amended on denial of rehearing and rehearing en banc), decision available here...

U.S. v. Anderson, No. 09-50559

Posted on November 16, 2010
U.S. v. Anderson, No. 09-50559 (11-16-10) (Per curiam with Pregerson, Ripple from the 7th Cir., Graber). "Hey, I only plead nolo...I didn't say I was guilty." How many times has a defendant said that when faced with a past conviction being used against him? In this case, the district court dismissed an indictment for being a prohibited possessor of a firearm because the defendant's two predicate California felonies were each a result of a nolo contendere plea...

Case o' The Week: Detrimental, reliance - Schafer and Equitable Estoppel

Posted on November 13, 2010
What will repeated assurances by two California law enforcement officers that your grow is legal, get you? Federal charges and five years in a federal prison. United States v. Schafer, 2010 WL 4400052 (9th Cir. Nov. 8, 2010), opinion available here.Players: Hard-fought case argued by our ND Cal CJA comrade Barry Morris...

U.S. v. Diaz-Lopez, No. 09-50604

Posted on November 10, 2010
U.S. v. Diaz-Lopez, No. 09-50604 (11-9-10) (Gould with O'Scannlain and M. Smith). It is not every day we come across an extended discussion of "the best evidence" in a criminal prosecution. We do here, along with an interesting foray into foundation, arising from a 1326 (illegal reentry) appeal...

Case o' The Week: The Ninth Gets it Wright -- Federal Jurisdiction in Child Pornography Cases

Posted on November 07, 2010
Does a statute that makes it a federal crime to transport child pornography across state lines, require that the images actually cross state lines? Um, yes. United States v. Wright, 2010 WL 4345670 (9th Cir. Nov. 4, 2010), decision available here...

Smith v. Mitchell, No. 04-55831

Posted on November 04, 2010
Smith v. Mitchell, No. 04-55831 (10-29-10) (per curiam: Pregerson, Canby and Reed, D.J. D. Nev.). This is a remand (again) from the Supremes asking the 9th to reconsider its holding that, under Jackson, no rational trier of fact could have found the defendant guilty in this shaken baby prosecution...

U.S. v. Leal-Felix, No. 09-50426

Posted on November 04, 2010
U.S. v. Leal-Felix, No. 09-50426 (11-1-10) (Goodwin with Rawlison; dissent by Bennett, D.J., N. D. Iowa). What is a "citation"? Use of a legal precedent? A very fast horse? An award or commendation? A minor civil infraction? What about a reason to add two criminal points? The latter is the case here, where the 9th considers whether a citation for a traffic violation is akin to an arrest countable for criminal history under the guidelines...

U.S. v. Wright, No. 08-10525 (11-4-10)

Posted on November 04, 2010
U.S. v. Wright, No. 08-10525 (11-4-10) (M. Smith with Hogan, Sr. D.J. for DC; concurrence by Hug). This is a child porn case that went to trial and is now appealed. Defendant was arrested and charged with numerous counts related to child porn. Defendant said he did not know it was on his computer and pointed at his roommate, whom had motive, opportunity, and intent...

Case o' The Week: Defense Appeals Acquittal - and Loses; Vela and NGI appeals

Posted on October 31, 2010
Judge Canby's decision in Vela, complains dissenting Judge N. Randy Smith (right), will allow the defense to "have its cake and eat it too," and to get a "do over" when a defense strategy does not pan out at trial. Works for us. United States v...

U.S. v. Redlightning, No. 09-30122

Posted on October 27, 2010
U.S. v. Redlightning, No. 09-30122 (10-25-10) (Gould with Wardlaw and Mill, D.J.). This appeal has an extensive discussion on what it takes to get in expert testimony of false confessions. The case arises from a murder and sexual assault over 20 years ago...

U.S. v. Berry, No. 08-35002 (10-22-10)

Posted on October 25, 2010
U.S. v. Berry, No. 08-35002 (10-22-10) (Tashima with Kleinfeld and Tallman). The 9th takes this opinion to clarify that a district court may treat a 2255 motion as a Rule 33 motion for new trial. However, the 2255 must be timely; that is, with newly discovered evidence, within three years of the conviction...

Case o' The Week: Goodwin Finds Gold in Corner of Seventh Circuit - Mitchell and Kimbrough Policy Variances

Posted on October 24, 2010
A district judge looks at a guideline range, and knows in his or her gut that it is unfair -- it is based on bad policy, and would create unwarranted disparities in sentencing. Can that judge vary from the guideline under Section 3553(a), after Kimbrough? Yep, if the guideline in question is Career Offender...

U.S. v. Mitchell, No. 08-50429

Posted on October 21, 2010
U.S. v. Mitchell, No. 08-50429 (10-20-10) (Goodwin with Canby; concurrence by O'Scannlain). The 9th clarifies that "even in cases where a defendant is being sentenced under the Guidelines as a career offender, the sentencing court may depart downward to account for the disparity between treatment of crack cocaine and powder cocaine in the Guidelines...

Sipai And Administrative Law In The Criminal Context

Posted on October 21, 2010
On September 30th in Sipai, the Ninth Circuit amended an earlier opinion that had found the district court lacked jurisdiction to reduce a sentence based on crack retroactivity. Although the amendment is an improvement, both opinions are based on a simple mistake of administrative fact, presenting a case study on the importance of administrative law in criminal cases...

Earp v. Cullen, No. 08-99005 (10-19-10)

Posted on October 19, 2010
Earp v. Cullen, No. 08-99005 (10-19-10) (Tallman with Farris and Nelson). In this death penalty case, the 9th remands on the issue of prosecutorial misconduct. The district court had the case back on a remand to hold an evidentiary hearing on the matter of misconduct and IAC...

U.S. v. Lozano, No. 09-30151 (10-18-10)

Posted on October 18, 2010
U.S. v. Lozano, No. 09-30151 (10-18-10) (Per curiam with Schroeder, O'Scannlain, and Clifton; concurrence by O'Scannlain).Things NOT to ask the postmaster: (1) whether postal workers screened mail?; (2) whether detection dogs were brought into the post office?; and (3) whether postal workers could open packages to look for drugs? It is better just to ask if the new stamps have been issued yet...

Case o' The Week: Ninth Suffers from Weakened Immunity -- Flores-Blanco and Court-Ordered Use Immunity

Posted on October 17, 2010
A slow week for criminal decisions in the Ninth (as new clerks hit their stride?) lets us reach back a bit and consider the interesting, though disappointing, use-immunity decision in United States v. Flores-Blanco, 2010 WL 3835220 (9th Cir. Oct. 4, 2010), decision available here...

Case o' The Week: Timing is Everything - "Paper" and "Recency" Points in Garcia-Jimenez

Posted on October 10, 2010
Deferential "clear error" review, a low preponderance standard, and a crabbed application of the "rule of lenity" combine for a disappointing decision in the context of Section 1326 sentencing. United States v. Garcia-Jimenez, 2010 WL 3895696 (9th Cir...

U.S. v. Garcia-Jimenez, No. 09-50304

Posted on October 07, 2010
U.S. v. Garcia-Jimenez, No. 09-50304 (10-6-10) (Bybee with Noonan and Clifton). The defendant was sentenced under 1326 for illegal re-entry. The appeal concerns the criminal history calculation. The defendant, who was in and out of California prison because of parole violations (he was remarkably unlucky when it came to his burglary attempts), argues that he should not get +2 for committing this offense while under parole...

U.S. v. Flores-Blanco, No. 09-50040

Posted on October 05, 2010
U.S. v. Flores-Blanco, No. 09-50040 (10-4-10) (Canby with Hall and O'Scannlain). Fences may make good neighbors, but they are obstacles when it comes to alien smuggling. Here, the defendant was convicted of alien smuggling for gain, conspiracy, and encouraging an alien to come across...

Case o' The Week: The Webster Definition - Money Laundering Proceeds in US v. Webster

Posted on October 03, 2010
Q: What is the most frustrating thing about the "rule of lenity," where a defendant catches a rare break thanks to an ambiguous term in a statute? A: The courts' and Congress' eagerness to limit and clean up the ambiguity as quickly as humanly possible (in ways that never help the defense)...

U.S. v. Webster, No. 09-30173 (9-30-10)

Posted on September 30, 2010
U.S. v. Webster, No. 09-30173 (9-30-10) (Thompson with Hall and McKeown). The 9th affirms convictions on drug, conspiracy, money laundering, and fraud counts. Numerous grounds were raised, the two most interesting dealing with money laundering instructions regarding profits and business record hearsay...

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