Public Defense

U.S. v. Samueli, No. 08-50417 (9-24-09).

Posted on September 25, 2009
U.S. v. Samueli, No. 08-50417 (9-24-09). The 9th (Gould joined by Fernandez and England) dismiss an appeal for lack of jurisdiction. The defendant had an 11(c)(1)(C) plea rejected by the court. He did not withdraw from his guilty plea, but sought interlocutory review, arguing that this disputed issue was final, that the issue evades review, and that it is separate from the merits...

U.S. v. Grajeda, No. 07-50387 (9-21-09).

Posted on September 21, 2009
U.S. v. Grajeda, No. 07-50387 (9-21-09). The 9th wrestled again with the categorical approach as it applied to a California statute -- assault with a deadly weapon or by means likely to produce great bodily harm (Calif. penal Code 245(a)(1) -- and whether it is a crime of violence under 2L1...

U.S. v. Inzunza, No. 05-50902 (9-1-09).

Posted on September 02, 2009
U.S. v. Inzunza, No. 05-50902 (9-1-09). This is an appeal from a conviction of a former San Diego City Council member, and a government's appeal from acquittals and a new trial for another Council member (Zucchiet). The 9th (Canby joined by Bybee and M...

U.S. v. Gonzalez, No. 07-30098

Posted on August 24, 2009
U.S. v. Gonzalez, No. 07-30098 (8-24-09). You "Gant" always get what you want, which in this case, was the weapon from a car where the defendant was riding. The police arrested someone else for outstanding warrants; the defendant ended up also handcuffed in the police car...

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U.S. v. Riley, No. 08-50009 (8-13-09).

Posted on August 14, 2009
U.S. v. Riley, No. 08-50009 (8-13-09). How far can supervised release conditions go? Pretty far, but the 9th is starting to crack back on the overreach. Here, the defendant was convicted of child porn. In addition to the usual SR conditions, restricting material with sexually explicit content and other computer restrictions, the court imposed a restriction on "any material that relates to minors...

U.S. v. Autery, No. 07-30424 (2-13-09).

Posted on February 13, 2009
U.S. v. Autery, No. 07-30424 (2-13-09). This is an important sentencing "standard of review" case. The 9th holds that "abuse of discretion is the proper standard of review where a party challenges a sentence's substantive reasonableness on appeal but did not object to the sentence's reasonableness before the district court...

U.S. v. Selby, No. 07-30183 (2-9-09).

Posted on February 10, 2009
U.S. v. Selby, No. 07-30183 (2-9-09). The 9th (per curiam) substitutes this opinion for the one filed on Jan. 15, 2009. This case concerns a conflict of interest under 18 U.S.C. § 208 and wire fraud. Defendant was an administrator with the Bonneville Power Administration, and used her influence in regards to purchasing extensive software...

U.S. v. Romero-Ochoa, No. 08-30251

Posted on February 09, 2009
U.S. v. Romero-Ochoa, No. 08-30251 (2-5-09). Shouldn't a defendant know for certain what he's facing in terms of penalties? Isn't this especially important for 1326s (illegal reentry after deportation) when it comes to having an aggravated felony or not? Of course, but here the defendant could not get an answer from the court pretrial...

Case o' The Week: A "WARRENless" Search Case with New Fourth Amendment Rules, Al Nasser

Posted on February 07, 2009
Judge Kleinfeld (seen here, left, with members of the Harvard Federalist Society) authors a "new" (amended) Fourth Amendment decision that asks whether a defendant is "seized" when he or she voluntarily stops for the police. United States v. Al Nasser, __ F...

Case o' The Week: "Honest Services" in the Eye of the (AUSA) Beholder, Weyhrauch

Posted on December 13, 2008
A slow week for criminal cases lets us stretch back a bit to a very interesting -- albeit disappointing -- decision on pubic corruption. United States v. Bruce Weyhrauch, No. 07-30339, 2008 WL 5003366 (9th Cir. Nov. 26, 2008), decision available here...

Sechrest v. Ignacio, No. 04-99004

Posted on December 12, 2008
Sechrest v. Ignacio, No. 04-99004 (12-5-08). The 9th (Pregerson joined by W. Fletcher and Berzon) finds prosecutorial misconduct by the state prosecutor. In a capital case, the prosecutor argued that the state board of parole would release the petitioner if he did not receive death...

U.S. v. Blixt, No. 07-30198 (11-26-08).

Posted on December 01, 2008
U.S. v. Blixt, No. 07-30198 (11-26-08). What's in a name? If it is a forged signature, the possible charge of aggravated identity theft. The 9th (Rawlison joined by Graber and Wright) holds that the forging of another's signature "constitutes the use of that person's name and thus qualifies as a 'means of identification' under 18 U...

Case o' The Week: Forged Signature Now "Aggravated Identity Theft" in Ninth, Blixt

Posted on November 27, 2008
What's in a name? A mandatory-minimum twenty-four month federal sentence, consecutive, thanks to a very troubling decision by Judge Johnnie Rawlinson (left). United States v. Blixt, __ F.3d __, 2008 WL 5003239 (9th Cir. Nov. 26, 2008) (decision available here)...

Case o' The Week: Gun in One's Lap Not "Knowing" Possession, Nevils

Posted on November 23, 2008
A baby shower where guests get so drunk they pass out, a respected academic caught by his wife in the kitchen with the chambermaid -- is any field ever as interesting as criminal law? See United States v. Nevils, __ F.3d __, 2008 WL 4937030 (9th Cir...

Waldrip v. Hall, No. 07-55512 (11-18-08).

Posted on November 20, 2008
Waldrip v. Hall, No. 07-55512 (11-18-08). The petitioner's petition was denied in state court. Eight months lapsed before he subsequently filed in a higher state court, which denied his petition without comment on its timeliness. The 9th, taking its lead from the Supremes in Evans v...

Judge Mosman On Oral Argument

Posted on November 19, 2008
Appellate attorneys are used to being provided judicial advice on oral advocacy: be prepared; organize your argument; answer the question; stop slouching; don?t mumble; spit out that gum. So here?s a turnaround: Oregon District Court Judge Michael Mosman provides his thoughts on how judges can increase the civility and effectiveness of oral argument...

Case o' The Week: You Can't Always Get What You Want (Gallaher and Conditional Pleas)

Posted on November 15, 2008
For what is quite likely the first time in a federal appellate decision, the Ninth quotes the Stones in the first line of a published opinion. In re: James H. Gallaher, Jr., __ F.3d __, 2008 WL 4877454 (9th Cir. Nov. 13, 2008), decision available here...

Case o' The Week: Ninth Holds Out for Holdout, Williams and Allen Charges

Posted on November 09, 2008
"Wait, wait: don't tell me!" A witty and satiric news quiz found on NPR? Or the plaintive cry of a district judge as a hold-out juror is about to reveal her identity? Both, it turns out. In United States v. Williams, __ F.3d __, 2008 WL 4812012 (9th Cir...

U.S. v. Miller, No. 07-30481 (11-7-08).

Posted on November 07, 2008
U.S. v. Miller, No. 07-30481 (11-7-08). Defendant was getting to the end of his sentence, and so was transferred by BOP to a state (Idaho) county jail, where he was on work release. He finally got out, and subsequently was arrested and found with drugs...

U.S. v. Maes, No. 07-10495 (10-10-08).

Posted on October 10, 2008
U.S. v. Maes, No. 07-10495 (10-10-08). It is not good to drive the wrong way on a one-way street, on VA property, especially when an officer can observe you. The stop lead to a citing, and a sighting of drug paraphernalia on the dash, and then a search that found drugs...

Case o' The Week: Ninth Listens to Doubting Thomas, Comprehensive Drug Testing Goes En Banc

Posted on October 05, 2008
Too infrequently can we post good news in this blog. Today we do: Justice Thomas's dissent must have caught someone's eye, because United States v. Comprehensive Drug Testing went en banc on Friday the 30th. See order here.Players: Judge Sidney Thomas, with a dissent that sparked an en banc call...

Case o' The Week: Defense 45 / Gov't 8 (but Lazarenko still gets nine . . .)

Posted on September 27, 2008
Years of litigation, millions of dollars of investigation, government "depositions" under sketchy circumstances in Russia, and the feds end up losing 45 out of 53 counts against Pavel Ivanovich Lazarenko, former Prime Minister of Ukraine? United States v...

Tablada v. Thomas, No. 07-35538

Posted on July 03, 2008
Tablada v. Thomas, No. 07-35538 (7-3-08). How to calculate "good time" shows BOP at its worst. Should good time of 54 days a year (85%) be calculated on the sentence imposed (the measurement used for example in calculating criminal history scores) or rather on the time actually served...

Case o' The Week: Ask, "W.W.W.D?" (What Would Warren Do?) -- Chapman and Section 111 Offenses

Posted on June 29, 2008
As we mourn the passing of Ninth Circuit Judge Warren Ferguson (left), one of his younger colleagues (Judge Kim Wardlaw, right) continues his admirable legacy by holding the government to the full proof requirements of Section 111. See United States v...

Case o' The Week: Lying to Probation Not A Crime (in the Ninth), Horvath

Posted on April 13, 2008
O.K. -- a defendant shouldn't lie to a Probation Officer . . . but is it really a crime to do so? Not in the Ninth, when the lie is about information that must be reported as part of the PSR process and the government charges a "false statement" under 18 USC Section 1001...

U.S. v. Lewis, No. 05-10692 (3-13-08).

Posted on March 21, 2008
U.S. v. Lewis, No. 05-10692 (3-13-08). It is rare that there is a remand for a Speedy Trial Act violation. Rarer still for it to occur twice. Here, the 9th (Wardlaw joined by Hawkins) send a case back again for the district court to consider whether discrete continuances under the STA might cause the STA violation to be dismissed with prejudice...

Case o' the Week: Ninth Unambiguous About Miranda Ambiguity, Rodriguez

Posted on March 16, 2008
Judge Milan Smith (left) delivers an important defense win on Miranda waivers. See United States v. Jose Rodriguez, __ F.3d __, 2008 WL 623982 (9th Cir. Mar. 10, 2008), decision available here. In Rodriguez, the Ninth finds that the old "clarification rule" survived the Supreme Court's limitations in Davis: an ambiguous assertion of Miranda rights at the outset of an interrogation must be clarified by law enforcement before interrogation can proceed...

U.S. v. Rosales, No. 05-30260 (2-13-08).

Posted on February 19, 2008
U.S. v. Rosales, No. 05-30260 (2-13-08). This is an affirmance of a conspiracy and possession with intent convictions. The defendant argued that there was insufficient evidence for a jury to find that the conspiracy was for more than 500 grams or that he possessed with intent to distribute on a certain date...