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Public Defense

Ninth Circuit Blog

Case Summaries and Commentary by Federal Defenders of the Ninth Circuit

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Last Entry: September 30, 2020 at 12:50:00

Ford v. Peery, No. 18-15498 (9-28-20)(Fletcher

Posted on September 30, 2020
Ford v. Peery, No. 18-15498 (9-28-20)(Fletcher w/Molloy; dissent by R. Nelson). The 9th grants a writ. In a first-degree murder case, the state prosecutor, in rebuttal closing, argued that the presumption of evidence no longer applies: the defendant had a fair trial, got to cross examine, and could present evidence...

Case o' The Week: Oh What Busts We Do Unweave, When Special Agents First Deceive - Ramirez, Ruses, and Deceit

Posted on September 27, 2020
?[A] private person has the right to expect that the government, when acting in its own name, will behave honorably. When a government agent presents himself to a private individual, and seeks that individual's cooperation based on his status as a government agent, the individual should be able to rely on the agent?s representations...

Case o' The Week: Qazi like fox - Qazi and Du Bo Challenges to the Indictment

Posted on September 20, 2020
Du Bo shot with pro se spin earns defense nice Rehaif win. United States v. Qazi, 2020 WL 5553323 (9th Cir. Sept. 17, 2020), decision available here. Players: Decision by Judge Hunsaker, joined by Judge Wardlaw and visiting CJ Cook. Nice win for former CD Cal AFPD Michael Tanaka...

US v. Qazi, No. 18-10483 (9-17-20)(Hunsaker

Posted on September 17, 2020
US v. Qazi, No. 18-10483 (9-17-20)(Hunsaker w/Cook & Wardlaw). The defendant, pro se, challenges the indictment charging him as a prohibited possessor of a firearm for failure to contain an essential element. The 9thagrees that under Rehaif v US, 139 S...

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Von Tobel v. Benedetti, No. 18-15892

Posted on September 17, 2020
Von Tobel v. Benedetti, No. 18-15892 (9-14-20)(Siler w/Bybee & R. Nelson). The 9th affirms denial of a petitioner?s claim involving juror misconduct. Misconduct there was: the juror, before deliberations, conversed with a neighbor ? a police officer ? who said that the defendant wouldn?t be there if he hadn?t done something wrong...

US v. Garcia, No. 19-10073 (9-10-20)(Wardlaw

Posted on September 17, 2020
US v. Garcia, No. 19-10073 (9-10-20)(Wardlaw w/Siler & M. Smith). The 9th suppresses evidence. The police conducted a warrantless search of a home, handcuffed the defendant, took him outside, and then ran his record. The police then learned he was in SR...

US v. Herrera, No. 19-50181 (9-9-20)(Hunsaker

Posted on September 17, 2020
US v. Herrera, No. 19-50181 (9-9-20)(Hunsaker w/Wardlaw & Cook). This opinion considers an issue of first impression: Is the State counted as a victim for the number of victims fraud enhancement? The answer is ?yes,? so long as the loss was counted in the relevant conduct...

US v. Asuncion, No. 18-30130 (9-4-20)(Chhabria

Posted on September 17, 2020
US v. Asuncion, No. 18-30130 (9-4-20)(Chhabria w/Fletcher & Rawlinson). This is a sad case, illustrating that timing can be everything. The 9th affirms a mandatory life sentence under 841(b)(1)(A) as the defendant was found to have two prior ?felony drug sentences? under 802(44)...

Case o' The Week: Footnotes Matter - Garcia and Fourth Amendment Attenuation (Intervening Circumstances)

Posted on September 13, 2020
"Recent events have reminded us of the devastating consequences that can follow when armed officers take the residents of a home by surprise. See Darcy Costello & Tessa Duvall, Minute by Minute: What Happened the Night Louisville Police Fatally Shot Breonna Taylor, Louisville Courier J...

Case o' The Week: If not found we can rely, reverse conviction and re-try! - Valencia-Lopez, FRE 702, Daubert, and gov't "expert" reliability

Posted on September 06, 2020
Pick a peck of pot and peppers . . . . and try the case again. United States v. Valencia-Lopez, 2020 WL 4814139 (9th Cir. Aug. 19, 2020), decision available here. Players:Decision by Judge Bennett, joined by Judge Hawkins. Dissent by Judge Owens...

US v. Moalin, No. 13-50572 (9-2-20)(Berzon

Posted on September 02, 2020
US v. Moalin, No. 13-50572 (9-2-20)(Berzon w/Nguyen & Zouhary). In a FISA metadata case, the 9th affirmed the convictions against 4th Amendment challenges. The case involved collection of metadata from US citizens and others derived from foreign intelligence surveillance...

Case o' The Week: Ninth Axes Conviction after Juror Dismissed - Litwin, Sixth Amendment and Dismissals of Deliberating Jurors

Posted on August 30, 2020
Axes to grind . . . on Ninth?s mind. United States v. Litwin, 2020 WL 5050383 (9th Cir. Aug. 27, 2020), decision available here. Players:Decision by Judge Bress, joined by Judges Gould and Christen. Facts:Medical Assistant Litwin and his co-D, Dr...

1. US v. Rodriguez-Gamboa, No.

Posted on August 27, 2020
1. US v. Rodriguez-Gamboa, No. 19-50014 (Hurwitz w/Wardlaw & Bataillon). In a ?categorical approach? opinion, the 9th considers whether California?s statute prohibiting sale of both ?geometric and optical isomers of methamphetamine is not a categorical match with the federal statute that prohibits only ?optical isomers...

US v. Hussain, No. 19-10168 (8-26-20)(Bress

Posted on August 27, 2020
US v. Hussain, No. 19-10168 (8-26-20)(Bress w/R. Nelson & Gwin). It was a con in the boardroom. The scheme, involving complex fraudulent transactions, deception, misleading statements, and hoodwinking ? conned Hewlitt-Packard into buying a startup, Autonomy Corporation, a British company, at a grossly inflated value...

US v. Lusby, No. 18-10368 (8-25-20)(Wallace

Posted on August 25, 2020
US v. Lusby, No. 18-10368 (8-25-20)(Wallace w/Friedland & Lasnik). This is an interesting SORNA case. The 9th affirms the conviction but deals with (1) double jeopardy; and (2) ?compelled travel.? To set the stage, the defendant was released from confinement in Arizona and ordered to appear at a hallway house in Las Vegas...

Case o' The Week: Of Form 12s and Aggravated Mopery - Cate and Challenges to Convictions via Supervised Release

Posted on August 23, 2020
Q: Is it a federal crime to possess a gun with a felony prior, after having been convicted of a state offense carrying a max term of three months? A: Close enough for government work (and a fifteen month supervised release violation sentence!) United States v...

US v. Cate, No. 19-30161 (8-21-20)(Tashima

Posted on August 21, 2020
US v. Cate, No. 19-30161 (8-21-20)(Tashima w/Fletcher & Rawlinson). The 9th reconfirms that the validity of an underlying conviction cannot be challenged in a SR proceeding. This holds even when the defendant may well be no longer guilty of the underlying offense...

1. US v. Rodriguez, No. 16-50213

Posted on August 21, 2020
1. US v. Rodriguez, No. 16-50213 (8-20-20)(Nguyen w/Thomas & Wardlaw). The 9th affirms RICO and VICAR convictions for a defendant who acted as a ?secretary? to a high-ranking member of a Mexican Mafia gang. Many issues raised, and this opinion provides a good overview of the instructions required for RICO and VICAR...

1. US v. Valencia-Lopez, No. 18-10482

Posted on August 20, 2020
1. US v. Valencia-Lopez, No. 18-10482 (8-19-20)(Bennett w/Hawkins; dissent by Owens). Note: This is an Az FPD case. The 9th vacated and remanded convictions for transportation and importation of marijuana. The defendant, a truck driver, argued he acted under duress; that the cartel forced him by threats to his family to transport 6000 k of marijuana...

Case o' The Week: Pro Se, A-Ok -- Engel and Parameters of Pro Se Representation

Posted on August 16, 2020
Engel?s dialectic? Mr. Todd Engel ?Tame.? United States v. Engel, 2020 WL 4519071 (9th Cir. Aug. 6, 2020), decision available here. Players:Decision by Judge Bybee, joined by Judges W. Fletcher and Watford. Facts: Todd Engel traveled from Idaho to Nevada to impede a Bureau of Land Management (BLM) operation, related to the Bundy confrontation...

Note: the two cases (and two wins)

Posted on August 11, 2020
Note: the two cases (and two wins) were both from the Arizona FPD Office. 1. US v. Fuentes-Galvez, No. 18-10150 (8-10-20)(Sessions w/Fletcher & R. Nelson). The 9th reversed and remanded a conviction and sentence for egregious errors in the change of plea...

1. US v. Bundy, No. 18-10287 (8-6-20)(Bybee

Posted on August 11, 2020
1. US v. Bundy, No. 18-10287 (8-6-20)(Bybee w/Fletcher & Watford). In this high-profile prosecution, the 9th affirmed the district court?s dismissal of charges with prejudice due to the government?s extensive, egregious, and flagrant Brady violations...

US v. Kuzma, No. 18-10042 (8-3-20)(Collins

Posted on August 11, 2020
US v. Kuzma, No. 18-10042 (8-3-20)(Collins w/Paez & Choe-Groves). The 9th rejects an unconstitutional vagueness challenge to the statutory definition of ?machinegun.? The machinegun here was just the receiver, and it was nonoperable. However, it could be made operable; critically, the receiver was missing a blocking bar that stopped the automatic firing...

US v. Bocharnikov, No. 19-30163

Posted on August 11, 2020
US v. Bocharnikov, No. 19-30163 (7-27-20)(Bybee w/VanDyke; concurrence by Chhabria). The 9th reverses the denial of a suppression motion for inculpatory statements. The issue was whether a second interview, and confession, was tainted by the illegality of the first due to a Miranda violation...

US v. Moran-Garcia, No. 19-50134

Posted on August 11, 2020
US v. Moran-Garcia, No. 19-50134 (7-23-20)(Kleinfeld w/Nguyen & Pauley). A venue win! The defendant was caught in boat, with others, 6 miles off of San Diego. The city?s twinkling lights could be seen. He was charged with attempted illegal reentry...

Case o' The Week: Living is Lying - Alvarez and the First Amendment

Posted on March 26, 2011
?If you tell a girl you love her in the evening and then tell your roommate she?s a bimbo the next morning, and the two compare notes, someone?s going to call you a liar.? United States v. Alvarez, __ F.3d __, 2001 WL 941617 (9th Cir. Mar. 21, 2011) (Ord...

Case o' The Week: A Brady Bombshell -- Kohring and Discovery Nondisclosure

Posted on March 12, 2011
Could there possibly be anything better than a righteous and persuasive Brady / Giglio discovery decision penned by the Honorable Judge Sidney Thomas (right)?Only an indignant and persuasive discovery dissent, penned by the Honorable Betty Fletcher (below left)...

Alaimalo v. U.S., No. 08-56349

Posted on February 28, 2011
Alaimalo v. U.S., No. 08-56349 (2-28-11) (B. Fletcher with Paez; dissent by Korman, Sr. D.J., EDNY). The petitioner is serving life sentences on numerous drug charges. Three counts were for importation of drugs from California to Guam. The convictions were in 1997; in 2003, the 9th, en banc, held that transporting drugs from one location in the U...

Case o' The Week: Faking Subpoenas A-OK - Prosecutorial [Mis]conduct and Carona

Posted on January 09, 2011
What could be worse than a lying, corrupt County Sheriff who suborns perjury and (allegedly) accepts years of cash bribes? Maybe a federal prosecutor who fakes subpoenas so a lying, corrupt co-defendant can use them as a snitch when speaking to the represented Sheriff? The Ninth, unfortunately, misses the irony of law enforcement using blatant deception to further the investigation of a deceiving law enforcement officer...

Case o' The Week: The Truth, the Whole Truth, and the Literal Truth - Tammy Thomas and Obstruction

Posted on July 26, 2010
What does telling the "literal truth" before the grand jury get you? Four felony convictions, six months of home detention, and 500 hours of community service. United States v. Thomas, __ F.3d __, 2010 WL 2853875 (9th Cir. July 22, 2010), decision available here...

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