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Public Defense

Ninth Circuit Blog

Case Summaries and Commentary by Federal Defenders of the Ninth Circuit

Post Frequency: 1.2/day

Last Entry: May 05, 2013 at 17:25:00

Case o' The Week: Novocaine OK, Cocaine Not So Much - Manusco, Continuing Offenses, and Drug Distribution

Posted on May 05, 2013
?Manusco was a dentist who distributed a lot more than free toothbrushes to his friends and acquaintances in Billings, Montana.? Great first line in a good new case on federal drug distribution. United States v. Manusco, 2010 WL 1811276 (9th Cir. May 1, 2013), decision available here...

Case o' The Week: Not Milke-Toast - Milke and Brady / Giglio Violations

Posted on March 18, 2013
Hon. Chief Judge Alex Kozinski"It's not just fairness to the defendant that calls for an objectively verifiable process for securing confessions and other evidence in criminal cases. We all have a stake in ensuring that our criminal justice system reliably separates the guilty from the innocent...

United States v. Stone, No. 11-10618

Posted on February 07, 2013
United States v. Stone, No. 11-10618 (Trott, J., with Rawlinson and Cudahy [7th Cir.], JJ.)The Ninth Circuit affirmed a conviction (O'Neill, D.J.), on one count of being a felon in possession of a firearm. Affirming the denial of the defendant's motion for judgment of acquittal, the panel reaffirmed that the holding of United States v...

Case o' The Week: Crazy Talk (or Silence?) - Dreyer, Competency, and Allocution at Sentencing

Posted on January 26, 2013
?In attempting to comply with this misguided decision, district courts are left to navigate the shoals of Scylla and Charybdis.? United States v. Dreyer, 2013 65430 (9thCir. Jan. 7, 2013) (ord. denying rh?g en banc) (Tallman, J., dissenting), order and superseding opinion available here...

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U.S. v. Hardeman, No. 11-10540

Posted on January 15, 2013
U.S. v. Hardeman, No. 11-10540 (01-14-13) (Graber with Alarcon and Berzon)Defendant was a convicted California sex offender. This is NOT a SORNA case, but rather whether enhancing a sentence if the defendant commits certain sex crimes against a minor while under a state duty to register as a sex offender is an ex post facto violation...

U.S. v. Pleasant, No. 12-10213

Posted on January 03, 2013
U.S. v. Pleasant, No. 12-10213 (1-2-13) (Tashima with Hawkins and Murguia)In 2009, when the defendant was sentenced on crack, he was also found to be a career offender. He got a break there, with a stipulated variance down to 77 months. The Fair Sentencing Act, and subsequent crack retroactive sentencing amendments from the Sentencing Commission, would seem to give him a chance for a possible further reduction...

Loftis v. Almager, No. 09-16884

Posted on December 14, 2012
Loftis v. Almager, No. 09-16884 (12-11-12) (Adelman, D.J. ED Wisconsin; concurrence by Silverman; dissent by Tashima)In habeas, does a "no contest" plea with a reference to the state equivalent of an Alford plea (California's West case) require a factual basis to be stated at the change of plea? The opinion, penned by a single judge, holds "no...

Case o' The Week: Ninth Dives into SoCal Pool -- Hernandez-Estrada and Jury Pool issues

Posted on December 08, 2012
Q: What is it called when Chief Judge Kozinski peels away from the majority decision, pens a witty separate opinion, and points out the "absurdity" of the current Ninth Circuit law?Bell curve, with each band equal to one standard deviationA: A Standard Deviation...

Case o' The Week: One Crime, Two Definitions - Stat Rape in Ninth, Zamorano-Ponce

Posted on November 12, 2012
The generic federal definition of statutory rape, used to determine whether a prior state conviction qualifies in a federal action, requires a mens reaof ?knowingly? in the Ninth Circuit.The generic federal definition of statutory rape, used to determine whether a prior state conviction qualifies in a federal action, does not require a mens rea of ?knowingly? in the Ninth Circuit...

Case o' The Week: Too Poor to Pay, High Sentence OK - Rangel, Restitution, and Sentencing

Posted on October 21, 2012
Carlo Pietro Giovanni Guglielmo Tebaldo PonziWith thousands of eager marks desperate for relief from foreclosure, this is a wonderful era for modern fraud artists with new spins on old Ponzi schemes.(Unless, of course, you happen to get caught). United States v...

Case o' The Week: Ninth Stops Short of Sequestration Cliff - Valencia-Riascos, FRE 615, Witness Sequestration and "Case Agents"

Posted on October 14, 2012
A government witness who is allowed to sit in during the entire trial, hear all defense cross-examinations before testifying, and alter his or her testimony in response ? that?s called a violation of Federal Rule of Evidence 615, and probably a due process violation, to boot...

U.S. v. Valencia-Riascos, No. 11-30307

Posted on October 12, 2012
U.S. v. Valencia-Riascos, No. 11-30307 (10-11-12) (Graber with Noonan and Rawlinson).Defendant was convicted of assault on a federal officer. On appeal, he argued that the court erred in not excluding the officer who was the victim from the courtroom; in allowing him to sit at the prosecutor's counsel table; and in declining from requiring him to testify first...

U.S. v. Jones, No. 12-50042 (10-5-12)(Thomas

Posted on October 09, 2012
U.S. v. Jones, No. 12-50042 (10-5-12)(Thomas with Alarcon and Berzon).In a SR appeal, the 9th affirms the counting of a state conviction as a felony, based on a recidivist statute, rather than a misdemeanor. The result was a Grade B violation rather than a Grade C...

U.S. v. Anekwu, No. 10-50328

Posted on September 20, 2012
U.S. v. Anekwu, No. 10-50328 (09-20-12) (N. Smith with Nelson and O'Scannlain).This is an interesting Confrontation Clause decision. In it, the 9th held that it was not plain error for the court to admit certifications of authenticity for foreign public and business records by affidavit and that it was not a confrontation clause violation...

Case o' The Week: Ninth Skeptical of Alien Encounter - Leal-Del Carmen, Mat Wits, and Discovery

Posted on September 16, 2012
"The most famous definition of 'chutzpah' is, of course, itself law-themed: chutzpah is when a man kills both his parents and begs the court for mercy because he?s an orphan. But there?s another legal chutzpah story. A man goes to a lawyer and asks: 'How much do you charge for legal advice?' 'A thousand dollars for three questions...

U.S. v Leal-Del Carmen, No. 11-50094

Posted on September 14, 2012
U.S. v Leal-Del Carmen, No. 11-50094 (09-14-12) (Kozinski with Reinhardt and W. Fletcher).The 9th emphatically holds that the government cannot deport a witness who has exculpatory evidence before the defendant is given counsel and informed. The defendant was charged with alien smuggling...

Research & Writing Attorney Lynn Deffebach

Posted on April 24, 2012
The defense community lost one of its most dedicated and effective members this week. After a five year struggle with breast cancer, Oregon research and writing attorney Lynn Deffebach died peacefully at home last Thursday at the age of 55. As a national expert on Bureau of Prisons litigation, she has been a resource for defenders around the country, teaching continuing legal education classes, writing articles, and providing consultations with attorneys, prisoners, and families of prisoners...

U.S. v. Onyesoh, No. 10-50480 (4-4-12)

Posted on April 04, 2012
U.S. v. Onyesoh, No. 10-50480 (4-4-12) (Zouhary, D.J., with W. Fletcher and Fisher).Under 18 USC 1029, involving access device fraud, the defendant gets an enhancement if he has a usuable access device (credit card). What if the credit card numbers were expired? The 9th holds that an expired access device is not "usable...

Case o' The Week: 9th OK with Cali's Cheeky Swab - Haskell and Pre-Conviction DNA

Posted on February 26, 2012
"[W]e must base decisions not on dramatic Hollywood fantasies . . . but on concretely particularized facts developed in the cauldron of the adversary process and reduced to an accessible record." Haskell v. Harris, 2012 WL 589469, *12 (9th Cir. Feb. 23, 2012) (internal quotations and citation omitted)...

Case o' The Week: The Kimsey Report - Berzon Rules Against Rules, Criminal Contempt

Posted on February 12, 2012
"In a colloquy ascribed to Sir Thomas More and his daughter: More's daughter urged her father to arrest someone, saying, 'Father, that man's bad.' More replied, 'There's no law against that.... [G]o he should if he was the Devil himself, until he broke the law!' Here, the government may have proven that Kimsey is, if not the Devil, no saint...

Farmer v. McDaniel, No. 10-99017

Posted on February 07, 2012
Farmer v. McDaniel, No. 10-99017 (2-17-12) (Bea with Trott and Pallmeyer).The 9th affirms the denial of a habeas petition challenging a capital sentence on double jeopardy grounds. The petitioner had been condemned to death based on aggravators that the murder arose in the course of committing another felony...

U.S. v. Reyes-Bonilla, No. 50361

Posted on February 06, 2012
U.S. v. Reyes-Bonilla, No. 50361 (2-6-12) (Goodwin with Wardlaw and Cogan, D.J.).In a 1326 appeal, the defendant argues that his his prior removal hearing was fundamentally unfair, and violated his due process, because he did not have counsel nor did he understand the proceedings...

Case o' The Week: Sentencing Big Mac Attack - McGowan, Due Process, and Reliability of Evidence at Sentencing

Posted on February 04, 2012
Due process at sentencing -- like other beasts in cryptozoology -- is rumored to roam the Ninth Circuit, but is rarely seen and is almost never documented. Until McGowan. United States v. McGowan, 2012 WL 233257 (9th Cir...

U.S. v. Noriega-Perez, No. 10-50501

Posted on February 01, 2012
U.S. v. Noriega-Perez, No. 10-50501 (2-1-12) (Tallman with Fernandez; partial dissent by Moore, D.J.).It is hard to find renters now a-days. In this case, with two houses close to the Mexico border, the defendant rented to alien smuggling organizations (the rent was paid on time)...

U.S. v. Casasola, No. 10-50376

Posted on January 30, 2012
U.S. v. Casasola, No. 10-50376 (1-30-12) (Schroeder with Gould and McCuskey, D.J.).This is a derivative citizenship issue on appeal from a 1326 conviction. The defendant argued that he automatically received derivative U.S. citizenship upon his father's naturalization in 1997, when he was 14...

Case o' The Week: JDA is A-OK -- Gonzalez and Joint Defense Agreements

Posted on January 29, 2012
In good times and in bad, in sickness and in health, through habeas claims of ineffective assistance of counsel: what defense agreements have joined let no district court put asunder. United States v. Gonzalez, 2012 WL 206266 (9th Cir. Jan. 25, 2012), decision available here...

U.S. v. Gonzalez, No. 11-15025

Posted on January 26, 2012
U.S. v. Gonzalez, No. 11-15025 (1-25-12) (Hawkins with M. Smith and Duffy, D.J.).Joint Defense Agreements (JDA) can be great, except when they aren't. And, they aren't when the participants start pointing fingers in an IAC proceeding. Here, the 9th looks at a JDA between co-defendants, and spouses, charged with fraud and a fire count (10 year mandatory min)...

U.S. v. McGowan, No. 10-50284 (1-26-12)

Posted on January 26, 2012
U.S. v. McGowan, No. 10-50284 (1-26-12) (Reinhardt with Kozinski and W. Fletcher).The 9th previously had reversed a judgment of acquittal following a jury's verdict of guilty. The case involved a prison guard's assault on two inmates. On this appeal, defendant argues that the court erred in failing to conditionally rule that he was entitled to a new trial...

Case o' The Week: Ninth Rejects Gov't's "Attempt" Attempt - Kuok and 18 USC Section 2

Posted on January 22, 2012
This holding ain't easy, but it's good, and well-worth the mulling it takes to understand:It is a crime to cause someone to attempt to unlawfully export restricted military gear -- but it is not a crime to attempt to cause someone to do so. United States v...

U.S. v. Juvenile Male, No.11-30065

Posted on January 20, 2012
U.S. v. Juvenile Male, No.11-30065 (1-20-12)(McKeown with Guy and Tallman).The issue of "Who is an Indian" is raised in this juvenile matter. The juvenile is at least one-quarter Indian blood, and is enrolled in a tribe, resides on a reservation, and has received membership benefits...

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