Public Defense

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.? Is the state statute overbroad? No, decides the 9th, because there is no ?realistic possibility? ? even theoretical ? that any defendant could face prosecution for geometric isomers. Such isomers do not exist. The 9th found that the legislative text, with this impossibility, is not a true legislative choice. The dismissal of the indictment is reversed and the case remanded.

David Menninger, Deputy Fed Public Defender, Cal C (L.A.), learned a lot of chemistry in a spirited fight on this issue.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/27/19-50014.pdf

2.  US v. Litwin, No. 17-10429 (8-27-20)(Bress w/Gould & Christen). Fraud and conspiracy convictions, resulting from a lengthy fraud trial, are reversed and remanded due to the improper dismissal of a juror during deliberations. The district court dismissed Juror #5 (a paralegal who had practiced as a defense lawyer in the Philippines) because of malice towards the judicial system and a refusal to deliberate. This occurred 3 hours into deliberations after a 36-day trial. The record did not support such animosity, even if there was anger at the court making her sit as a juror; and the evidence as to refusal also had evidence of confusion over jury instructions, which was not a decision not to discuss the case. The 9th was sympathetic with the court, but concluded that the removal was too soon, and without a sufficient justification or record. The error was structural.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/27/17-10429.pdf

Full post as published by Ninth Circuit Blog on August 27, 2020 (boomark / email).