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Federal Judiciary

Ninth Circuit Blog

Case Summaries and Commentary by Federal Defenders of the Ninth Circuit

Post Frequency: 1.3/day

Last Entry: November 01, 2020 at 14:48:00

Search & Seizure Update

Posted on October 13, 2009
For many years, our office has produced a search and seizure outline designed to cheer up those Eeyores of the criminal defense bar who believe the Fourth Amendment is a dead letter. While acknowledging the hits privacy rights have taken, the outline provides counterpoints demonstrating that judges have stood up for the Fourth Amendment even though ?the safeguards of liberty have frequently been forged in controversies involving not very nice people? (Judge Boochever quoting Justice Frankfurter in Munoz, 701 F...

Case o' The Week: The Maltese Falcon in San Diego, Fourth Amendment "Protective Sweeps"

Posted on September 27, 2009
It was a dark night in the City that Never Sleeps. It looked like Lemus was still living there, see? But if the copper remembered right, other family lived there too. Could be just another Dashiell Hammett rag -- but it wasn't. It was United States v...

U.S. v. Bragg, No. 08-10221 (9-23-09).

Posted on September 24, 2009
U.S. v. Bragg, No. 08-10221 (9-23-09). Is a remand for "making a better record" a form of reasonableness determination light? It sure looks that way in this case. The defendant had tax problems in the year 2000. Okay, a bit more severe than just tax problems because he ran a business that was supposed to take care of employment taxes for businesses that subscribed...

U.S. v. Lemus, No. 08-50403 (9-22-09).

Posted on September 22, 2009
U.S. v. Lemus, No. 08-50403 (9-22-09). It was a room with a view. The question was whether the police could search it as adjacent to the site of arrest to protect themselves? The 9th said "yes." The police had an arrest warrant for the defendant. They drove to his apartment, which was in a small complex, where other family members lived...

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Case o' The Week: Don't Trust Prison Cooks - Contreras and the Abuse of Trust Adjustment

Posted on September 21, 2009
Do the cooks that make prison "food" enjoy a special "position of trust?" Not so much, says the Ninth in a good new sentencing case. United States v. Contreras,__ F.3d __, No. 08-50126, 2009 WL 2960623 (9th Cir. Sept. 17, 2009), decision available here...

Hamilton v. Ayers, No. 06-9908

Posted on September 18, 2009
Hamilton v. Ayers, No. 06-9908 (9-18-09). The 9th grants sentencing relief in this pre-AEDPA petition. The petitioner killed his wife for the insurance money. His trial lawyer had little experience (none capital) and mitigation and sentencing preparation appeared to be an afterthought...

U.S. v. Contreras, No. 08-50126

Posted on September 17, 2009
U.S. v. Contreras, No. 08-50126 (9-17-09). The 9th is over the Hill. That is, this panel has overruled U.S. v. Hill, 915 F.2d 502 (9th Cir. 1990), which required an adjustment for abuse of a position of trust if the defendant had "the freedom to commit an offense...

U.S. v. Chaney, No. 08-10298 (9-15-09).

Posted on September 15, 2009
U.S. v. Chaney, No. 08-10298 (9-15-09). Defendant asked the district court for a reduced sentence based upon the change in crack guidelines. The defendant had received a 103 month sentence rather than a 235 month sentence based on cooperation. The plea was a stipulation, in which the government had argued for the sentence against a PSR that had higher guidelines because the government felt a 9-year sentence was appropriate...

Case o' The Week: No Acceptance for (Un)Appealing Decision, Johnson

Posted on September 14, 2009
In 2003, a Republican Congress turned the Sentencing Guidelines system on its head with the PROTECT Act and the Feeney Amendment - an amendment sponsored by then-freshman Representative Tom Feeney, who is now under a corruption investigation.One of the most subtle, but insidious, aspects of the PROTECT Act was stripping the power to determine "acceptance of responsibility" from its traditional home with the judiciary...

Schad v. Ryan, No. 07-99005 (9-11-09).

Posted on September 14, 2009
Schad v. Ryan, No. 07-99005 (9-11-09). The 9th (Schroeder and Reinhardt) remands a capital habeas for an evidentiary hearing to determine whether petitioner was diligent in his efforts to develop the state record during state post-conviction proceedings...

U.S. v. Johnson, No. 08-30094 (9-10-09).

Posted on September 14, 2009
U.S. v. Johnson, No. 08-30094 (9-10-09). Appealing, to the 9th, means never having to say you're sorry, at least for the 3rd point under 3E1.1(b). The defendant here strolled into a bank and garnered the attention of the teller, and an off duty officer...

U.S. v. Bride, No. 08-30266 (9-8-09).

Posted on September 09, 2009
U.S. v. Bride, No. 08-30266 (9-8-09). The defendant was sentenced in 2006 for crack offenses to a stipulated sentence under 11(c)(1)(C) of 19 years. His guideline range was at level 42 (360 to life), and the sentence was 11 years under the range because of 3553 factors...

U.S. v. Charles, No. 08-50086 (9-9-09).

Posted on September 09, 2009
U.S. v. Charles, No. 08-50086 (9-9-09). The 9th considered a categorical challenge to a career offender determination. There are some interesting twists. The defendant pled to being a felon in possession and possession with intent. The court determined he was a career offender and sentenced him to 204 months...

Case o' The Week: Deja Vu, All Over Again - Knight and Supervised Release Rules

Posted on September 05, 2009
In the 1993 comedy, "Groundhog Day," the hero (played by Bill Murray) finds himself waking up every morning to the exact same day, in the exact same place, over and over again -- never breaking free of the endlessly repeating loop.Defendant Douglas Knight had a similar experience -- except his loop was supervised release and jail...

U.S. v. Knight, No. 08-30372 (9-2-09).

Posted on September 03, 2009
U.S. v. Knight, No. 08-30372 (9-2-09). The Knight may be darkest before the dawn, but under this holding, the dawn, free of SR, will be a long time coming. Here, the 9th considers the 2003 amendment to the SR statute, 3583, and whether a court, upon SR revocation, must reduce the maximum term of imprisonment by prior terms of imprisonment...

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. Gallenardo, No. 07-30414

Posted on August 31, 2009
U.S. v. Gallenardo, No. 07-30414 (8-28-09). The 9th affirmed a child porn conviction and sentence over challenges to the interstate jurisdiction nexus, reference to other acts, and the imposition of a mandatory life term. As to the last challenge,the sentence was imposed under 18 U...

Case o' The Week: Eating Crow, Comprehensive Drug Testing En Banc Decision

Posted on August 28, 2009
On more than one occasion, we've bemoaned the irony that the Ninth Circuit is home to the most technologically-advanced industries (and arguably, users) in the world, yet its digital search law is bogged down in old and inapposite analogies to briefcases and filing cabinets...

U.S. v. Guzman-Mata, No. 08-10061

Posted on August 27, 2009
U.S. v. Guzman-Mata, No. 08-10061 (8-27-09). The 9th (N. Smith joined by Noonan and Berzon) hold that alien smuggling under 8 U.S.C. 1324(a)(1)(A) is categorically an "alien smuggling offense" triggering a +16 level adjustment under the Guidelines, 2L1...

U.S. v. Comprehensive Drug Testing,

Posted on August 26, 2009
U.S. v. Comprehensive Drug Testing, Inc., No. 05-10067 (8-26-09) (en banc). This is the en banc appeal related to the steroids in baseball litigation. The box score has a majority of this en banc (Kozinski writing) laying down new guidelines when it comes to search warrants for electronic information...

U.S. v. George, No. 08-30339 (8-25-09).

Posted on August 25, 2009
U.S. v. George, No. 08-30339 (8-25-09). The 9th (Thompson joined by Canby and Callahan) rejects constitutional challenges to SORNA. The 9th held that a defendant convicted of a federal crime had to register, and could not argue that he did not have to register because his state had yet to implement SORNA...

Case o' The Week: Encore, Encore - Prosecutorial Misconduct Means Brocade Retrial (maybe), Reyes

Posted on August 24, 2009
Just how many Ninth Circuit prosecutorial misconduct decisions must come down in one week to deter improper AUSA closing arguments?More than two, apparently. United States v. Reyes,_ F.3d __, No. 08-10047, 2009 WL 2501920 (9th Cir. Aug. 18, 2009), decision available here...

U.S. v. Harrison, No. 08-10391

Posted on August 19, 2009
U.S. v. Harrison, No. 08-10391 (8-19-09). Is this a case about "My Fair Constitution?" The defendant -- named Rex Harrison -- thought it would be lovely if he parked somewhere, far away from the cold night air. He did so at a military beach on Oahu...

U.S. v. Thongsy, No. 08-30198 (8-17-09).

Posted on August 18, 2009
U.S. v. Thongsy, No. 08-30198 (8-17-09). Just because one curls up with a loaded firearm, does it mean possession in furtherance of a drug crime? It sure does when the weapon is on the defendant's sleeping bag (between two others), in a tent, surrounded by the wilderness and a large scale marijuana growing operation...

Case o' The Week: Fourth Amendment Victory a Red "Herring?" - Monghur and Jail Calls

Posted on August 16, 2009
Judge Tallman writes for the Ninth and creates a new Circuit rule, recognizing a privacy right in a closed container despite a suspicious jail call and reversing the denial of a Fourth Amendment motion. United States v. Monghur,__ F.3d __, No. 08-10351, 2009 WL 2434396 (9th Cir...

Richter v. Hickman, No. 06-15614

Posted on August 11, 2009
Richter v. Hickman, No. 06-15614 (8-10-09)(en banc). In an en banc decision, the 9th (Reinhardt writing) granted petition's writ for IAC. The petitioner was alleged to have committed murder in a robbery gone bad. He alleged self defense. The case turned on circumstantial and forensic evidence...

Case o' The Week: Right Target, Wrong Number, No Problem: Title III and Reed

Posted on August 10, 2009
The wiretap target is R--, but turns out that the line really belongs to J-- (and is, not surprisingly, primarily used by J--). Close enough, reassures the Ninth in a disappointing new Title III case. United States v. Reed, No. 06-50040, 2009 WL 2366556 (9th Cir...

U.S. v. Vanderwerfhorst, No. 07-30336

Posted on August 10, 2009
U.S. v. Vanderwerfhorst, No. 07-30336 (8-6-09). In this sentencing appeal, the defendant argues that the court did not comply with the necessary procedures, such as Rule 32 notice, nor did the court make the necessary findings. The 9th (Tallman joined by Beezer and M...

U.S. v. Garcia-Villegas, No. 08-50503

Posted on August 04, 2009
U.S. v. Garcia-Villegas, No. 08-50503 (8-4-09). This is an appeal from a 1325 misdemeanor conviction for attempted entry. The defendant was seen hopping the fence. He subsequently gave a statement that he was an alien. The question for the 9th was whether mode-of-entry evidence corroborated a defendant's admission of alienage...

Moore v. Czerniak, No. 04-15713

Posted on August 03, 2009
Moore v. Czerniak, No. 04-15713 (7-28-09). The 9th issues an order and opinion that reaffirms its decision granting petitioner's habeas for IAC. The 9th denied en banc review, though over two voracious dissents. The petitioner confessed to a murder...

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