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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

Search And Seizure Update

Posted on September 29, 2010
Once more we have updated our outline entitled Developments In Federal Search And Seizure Law, which is available here. This document provides a general starting point for suppression motions with an emphasis on counterpoints: cases that favor an expansive view of Fourth Amendment protections...

U.S. v. Ruiz-Gaxiola, No. 08-10378

Posted on September 27, 2010
U.S. v. Ruiz-Gaxiola, No. 08-10378 (9-24-10) (Reinhardt with Kozinski and Timlin, D.J.). This is a Sell involuntary medication issue. (Note: this case is from the FPD Ariz. office). The conclusion summarizes the legal standard best:Ruiz suffers from a mental disorder that is extremely rare and difficult to treat...

U.S. v. Briggs, No. 09-30108 (9-27-10)

Posted on September 27, 2010
U.S. v. Briggs, No. 09-30108 (9-27-10) (Tashima with Fisher and Berzon). The defendant was caught up in plans to rob stash houses. Unfortunately for him, the "masterminds" were ATF operatives. The defendant was charged with drug, gun, conspiracy, and escape counts...

Case o' The Week: Ninth Doesn't Buy Government's Hard Sell -- Involuntary medication to restore comptency, Ruiz-Gaxiola

Posted on September 25, 2010
This week Judge Reinhardt writes, and CJ Kozinski joins, a great decision on Sell involuntary medication to restore competency. United States v. Ruiz-Gaxiola, Slip Op. 16275 (9th Cir. Sept. 24, 2010), decision available here. Players: Important victory by D...

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Towery v. Schriro, No. 08-99022

Posted on September 23, 2010
Towery v. Schriro, No. 08-99022 (9-22-10) (Fisher with Schroeder and N. Smith). A witness heard the petitioner say something to the effect that "he had trouble with the old man and had to hit him." Petitioner faced two trials: a preceding robbery and a subsequent robbery gone bad with murder...

U.S. v. Begay, No. 09-10249 (9-20-10)

Posted on September 21, 2010
U.S. v. Begay, No. 09-10249 (9-20-10) (Bybee with Schroeder and Gonzalez, D.J.). This is a SORNA case. Specifically, whether defendants who moved to the Navajo Indian Reservation still had to register as sex offenders with the State of Arizona. The defendants argue that the legislation made the Navajo Nation responsible, and because it had not yet established a sex offender registry, the defendant was unable to comply...

U.S. v. Bohn, No. 09-30397 (9-17-10)

Posted on September 20, 2010
U.S. v. Bohn, No. 09-30397 (9-17-10) (Graber with Paez and Burns, D.J.). The pro se defendant came upon two roads, diverging in a wood (in a national wildlife refuge). The one he took did not make a difference, because he was stopped by a National Parks Ranger for riding a motorcycle without a helmet (and things got nasty, in a CFR way, after that)...

Case o' The Week: One Shy - Search Guidelines Fall in C.D.T.

Posted on September 20, 2010
"[W]hat ever happened to the Fourth Amendment? Was it . . . repealed somehow?" United States v. Comprehensive Drug Testing, Inc., 2010 WL 352947 (9th Cir. Sept. 13, 2010) (Ord. amend. op. and denying rehearing en banc). at *13, order and amended opinion available here...

U.S. v. Waters, No. 08-30222 (9-15-10)

Posted on September 17, 2010
U.S. v. Waters, No. 08-30222 (9-15-10) (Tashima with Fisher and Berzon). The 9th reverses and remands arson convictions because the trial court let in anarchist literature that was of doubtful relevance and was not balanced under FRE 403. The 9th also reversed on the ground that the court failed to inquire or instruct the jury as to the publicity on the case...

U.S. v. Bennett, No. 06-50580 (9-10-10)

Posted on September 15, 2010
U.S. v. Bennett, No. 06-50580 (9-10-10) (Wardlaw with Kleinfeld; dissent by Callahan). It walks like a bank; it talks like a bank; it is a wholly owned subsidiary of a bank, it even issues mortgages like a bank; BUT it is not a bank, under 18 U.S.C. 1344 because it is not a financial institution as defined...

U.S. v. Comprehensive Drug Testing,

Posted on September 15, 2010
U.S. v. Comprehensive Drug Testing, Inc., No. 05-10067 (9-13-10)(en banc)(per curiam opinion with a concurrences by Kozinski, partial concurrences and dissents by Bea, Callahan, and a dissent by Ikuta). This en banc decision regards the seizure by warrant of the drug testing records in a highly publicized baseball steroid case and the district courts' suppression/return decisions...

Case o' The Week: BOA, FDIC, and J/x: Bennett and "Financial Institutions" for Bank Fraud Cases

Posted on September 11, 2010
Mortgage fraud is rife, the viability of lending institutions is put in jeopardy, investors may end up losing their entire stake -- who is the only person on earth delighted that a lender is not insured by the FDIC? James Davis Bennett. United States v...

Thompson v. Runnel, No. 08-16186

Posted on September 09, 2010
Thompson v. Runnel, No. 08-16186 (9-8-10) (Berzon with Goodwin; Ikuta dissenting). The police lie, cheat, and evade the Constitution -- interrogating the petitioner about a murder without Miranda warnings, lying to him, and then giving him the warnings after he is exhausted and emotionally distraught, and making him walk through the confession...

Case o' The Week: Ninth's Had its Fill of "Harmless" Sentencing Error - Munoz-Camarena

Posted on September 04, 2010
Judge Susan Graber has been an important figure in the Circuit's development of post-Booker sentencing law: first, with the very good Menyweather decision, and this week with the equally good Munoz-Camarena opinion (finding Menyweather overruled!) United States v...

U.S. v. Millis, No. 09-10134 (9-2-10)

Posted on September 03, 2010
U.S. v. Millis, No. 09-10134 (9-2-10) (Thomas with McKeown; dissent by Bybee).Here is no water but only rockRock and no water and the sandy roadThe road winding above among the mountainsWhich are mountains of rock without waterIf there were water we should stop and drinkAmongst the rock one cannot stop or thinkSweat is dry and feet are in the sandIf there were only water amongst the rockDead mountain mouth of carious teeth that cannot spitHere one can neither stand not lie nor sitThere is not even silence in the mountainsBut dry sterile thunder without rainT...

U.S. v. Munoz-Camarena, No. 09-50088

Posted on September 03, 2010
U.S. v. Munoz-Camarena, No. 09-50088 (9-3-10) (Per curiam with B. Fletcher, Pregerson, and Graber). The Supremes in Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010) held that a second or subsequent conviction for simple possession does not qualify as an aggravated felony when the state conviction is not based on the prior conviction...

U.S. v. Melchor-Meceno, No. 09-10012

Posted on September 01, 2010
U.S. v. Melchor-Meceno, No. 09-10012 (9-1-10)(N. Smith with Schroeder and Moody, D.J.). This is another case dealing with whether a prior Colorado conviction for "menacing" is a "crime of violence" for enhancement purposes under 2L1.2. The 9th holds that Colorado's felony menacing statute, C...

U.S. v. Armstrong, No. 09-30395

Posted on August 31, 2010
U.S. v. Armstrong, No. 09-30395 (8-31-10) (Berzon with Canby and Noonan). Can one adjust for hate? Yes, under the Guidelines. This appeal arose from a conviction for a racially motivated assault. Three men viciously beat an African-American simply because he was African-American...

U.S. v. Kloehn, No. 06-50456 (8-30-10)

Posted on August 30, 2010
U.S. v. Kloehn, No. 06-50456 (8-30-10) (Reinhardt with Wardlaw; dissent by Trott). In some instances, the trial must not go on. The defendant was on the stand for a fifth day in a complex and complicated tax evasion trial. The first trial had ended in a hung jury...

Case o' The Week: Ninth's Hurd Mentality - Good decision rejects use of post-Miranda Silence

Posted on August 29, 2010
"You have the right to remain silent. Your silence can and will be used against you at trial." Count on the California Court of Appeal to rewrite the Miranda warnings and permit a defendant's silence to be used against him at trial as evidence of guilt...

U.S. v. Havelock, No. 08-10472

Posted on August 25, 2010
U.S. v. Havelock, No. 08-10472 (8-23-10) (Canby with B. Fletcher; dissent by Graber). The 9th reversed convictions under 18 U.S.C. 876(c), mailing threats, because the threats have to be addressed to an individual person, as reflected in the address on the mailed item...

U.S. v. Langer, No. 09-50399 (8-20-10)

Posted on August 23, 2010
U.S. v. Langer, No. 09-50399 (8-20-10) (Breyer, D.J. with Trott and W. Fletcher). The 9th decides that a rap sheet, even in the absence of corroborating evidence, is still sufficiently reliable to establish by a preponderance of evidence the timing and length of the resulting sentence...

Case o' The Week: Ninth Deals with Retainer Problems, Rivera-Corona and Firing Retained Counsel

Posted on August 22, 2010
What is the standard for relieving retained counsel and getting a public defender appointed? Surprisingly, the Ninth didn't have a test for this situation (though concurring Judge Fisher would beg to differ). Never one to shrink from a challenge, Judge Berzon creates the rule for the Ninth in an interesting new case that will be important for indigent defense...

U.S. vs. Withers, No. 05-56795

Posted on August 19, 2010
U.S. vs. Withers, No. 05-56795 (8-19-10) (Pregerson with Paez; dissent by Noonan). The 9th vacates and remands the denial of petitioner's 2255 appeal. The 9th also reassigns the case from the district court (Real). The petitioner had a 30-year sentence, imposed more than 12 years ago...

U.S. v. Maddox, No. 09-30284 (8-12-10)

Posted on August 19, 2010
U.S. v. Maddox, No. 09-30284 (8-12-10) (Hawkins with Lucero; dissent by N. Smith). The defendant was pulled over for traffic violations. He became belligerent (note: asking the officer "Why the f * * k are you stopping me!" is not a good way to start the conversation), and was found to be driving on a suspended license and had other problems with the car (expired tags), and he ended up being arrested...

U.S. vs. Rivera-Corona, No. 08-30286

Posted on August 19, 2010
U.S. vs. Rivera-Corona, No. 08-30286 (8-18-10) (Berzon with Tashima; concurrence by Fisher). Defendant has retained counsel. The retainer is depleted, and now the defendant wishes to change counsel -- and asks the court to appoint counsel. What is the standard? This issue is a recurring one, and yet there is sparse precedent on it...

U.S. v. Alvarez, No. 08-50345 (8-17-10)

Posted on August 18, 2010
U.S. v. Alvarez, No. 08-50345 (8-17-10) (M. Smith with T. Nelson; dissent by Bybee). This is a fascinating opinion. The 9th holds unconstitutional as violating the First Amendment the statute, 18 U.S.C. 704, that criminalizes falsely claiming one has won the Medal of Honor...

Case o' The Week: Azalea Micturition - GPS Tracking, Pineda-Moreno

Posted on August 14, 2010
"This is precisely the wrong time for a court covering one-fifth of the country's population to say that the Fourth Amendment has no role to play in mediating the voracious appetites of law enforcement." United States v. Pineda-Moreno, 2010 WL 3169573 (9th Cir...

U.S. v. Pineda-Duval, No. 08-10240

Posted on August 11, 2010
U.S. v. Pineda-Duval, No. 08-10240 (8-10-10) (B. Fletcher with Canby and Graber). This is an appeal from a 10-count alien smuggling conviction in which death resulted due to a roll-over. The district court refused a causation jury instruction, which would let the defendant argue that he had not proximately caused the deaths but rather the border patrol did in its negligent employment of the spike strips used to stop the car, resulting in its roll-over...

Case o' The Week: Tracking the Fourth Amendment - DC's Maynard and GPS Tracking

Posted on August 07, 2010
We've bemoaned the irony before: the Ninth Circuit is home to the world's most-innovative technology pioneers, yet often trails the nation in its Fourth Amendment jurisprudence on electronic surveillance. A slow week for cases in the Ninth lets us turn East to illustrate the point...

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