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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

U.S. v. Banks, No. 07-30130 (2-25-09).

Posted on February 25, 2009
U.S. v. Banks, No. 07-30130 (2-25-09). This is a child porn case, where the interesting issue, and heated exchange, occurs between Rawlison joined by Graber and Alarcon dissenting over the issue of grandparents and marital privilege. Here, as one of several issues, the 9th found that the district court erred in allowing defendant's spouse to testify about communications, but it was harmless...

U.S. v. Kincaid-Chauncey, No. 06-10544

Posted on February 23, 2009
U.S. v. Kincaid-Chauncey, No. 06-10544 (2-20-09). The defendant was a Clark County Commissioner in Nevada, who received benefits from a strip club owner wanting zoning concessions. A principal witness had credibility issues as to what he paid to whom...

Case o' The Week: Strip Club Honest Services, Kincaid-Chauncey

Posted on February 21, 2009
Las Vegas strip clubs, "touching" legislation, cash bribes to politicians and federal wiretaps -- the salacious stuff of a new prime time miniseries? Nope: just another day in the Ninth. United States v. Kincaid-Chauncey, No. 06-10544, __ F.3d __, 2009 WL 415567 (9th Cir...

U.S. v. Garcia-Cardenas, No. 08-50117

Posted on February 18, 2009
U.S. v. Garcia-Cardenas, No. 08-50117 (2-17-09). In a per curiam decision, the 9th again rebuffs arguments in 1326 cases that the use of a prior as an aggravated felony adjustment and as criminal history is double counting. The argument here was that such counting made for an unreasonable sentence...

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Case o' The Week: "Cursing the Opacity of Guidance Received from Above," Autery and Post-Booker Sentencing review

Posted on February 16, 2009
District and appellate courts after Booker and Gall are "like Hansel and Gretel, looking for the now-missing breadcrumbs that would lead us back to clarity in sentencing." United States v. Autery, __ F.3d __, No. 07-30424, 2008 WL 349801 (9th Cir. Feb...

U.S. v. Al Nasser, No. 05-10466

Posted on February 06, 2009
U.S. v. Al Nasser, No. 05-10466 (2-4-09). Three Border Patrol cars were on the side of the road, and two other vehicles were stopped. The agents were processing smuggled illegal aliens for arrest. The defendant drove up, and stopped. The officers were not going to stop any more cars because of the safety issue, but this car had stopped...

Abraham Lincoln on Guant�namo

Posted on February 02, 2009
As we approach the 200th anniversary of Abraham Lincoln?s birth, our sixteenth president provides what sounds like a call to action regarding the policies and injustices that resulted from the law-free zone in Guant�namo: ?To correct the evils, great and small, which spring from want of sympathy, and from positive enmity, among strangers, as nations, or as individuals, is one of the highest functions of civilization...

Case o' The Week: The Fourth, the Ninth, and the Tenth: New 4th Amendment Standing Rule in Ninth Circuit, SDI Future Health

Posted on January 31, 2009
In a case that presents more Fourth Amendment issues than a CrimPro exam, the Ninth Circuit imports a Tenth Circuit test to create a new rule for gauging the standing of corporate employees to challenge a search within a business. United States v. SDI Future Health, Inc...

U.S. v. SDI Future Health, Inc.,

Posted on January 30, 2009
U.S. v. SDI Future Health, Inc., No. 07-10261 (1-27-09). Can corporate executives challenge police searches on corprorate premises where the executives did not have exclusive use? In other words, it is time for another 4th Amendment "test." This case was on an interlocutory appeal, involved a Medicare scam (double billings, billings for services not rendered, etc...

Case o' The Week: Cal Burglary Convictions not "Violent" Felonies under USSG � 2L1.2, Aguila-Montes de Oca

Posted on January 24, 2009
A big defense win by the San Diego Defender knocks California burglary convictions out as "violent" offenses triggering a sixteen offense level increase under USSG � 2L1.2. United States v. Aguila-Montes de Oca, __ F.3d __, No. 05-50170, 2009 WL (Jan...

U.S. v. Orlando, No. 07-50473 (1-23-09).

Posted on January 23, 2009
U.S. v. Orlando, No. 07-50473 (1-23-09). This is a disappointing opinion that applies Irizarry, the Supreme Court case that held that notice for a sentencing variance is not required. The defendant faced a guideline range of 27 to 33 months for tax evasion...

U.S. v. Esparza, No. 07-50293 (1-20-09).

Posted on January 21, 2009
U.S. v. Esparza, No. 07-50293 (1-20-09). This opinion deals with supervised release conditions in a child pornography case. Specifically,the failure of the sentencing court to make specific findings to support conditions that could mandate the taking of all prescribed medication, and physiological testing, and the delegation of the potential for inpatient treatment...

Case o' The Week: Judge Graber Urges a "Liberal" Reading in a Criminal Case, Awad and Sufficiency of the Indictment

Posted on January 18, 2009
In Awad, Judge Susan Graber (left) urges a "liberal" approach in a criminal case. Honest. Unfortunately for Awad, however, Judge Graber is referring to a "liberal" reading of a deficient indictment; a reading which allows fraud convictions (and a 180 month sentence) to stand...

U.S. v. McCaleb, No. 06-50387 (1-13-09).

Posted on January 16, 2009
U.S. v. McCaleb, No. 06-50387 (1-13-09). Verdict forms can be confusing. Defendant faced drug charges for running a clandestine meth lab. Defendant conceded count two (precursor drug possession) but argued for a lesser on the conspiracy charge. The jury returned a verdict form that checked both the greater charge and lesser...

U.S. v. Kaczynski, No. 06-10514

Posted on January 13, 2009
U.S. v. Kaczynski, No. 06-10514 (1-9-09). This case involves the Unabomber, and the sale of seized property to satisfy restitution. The victim restitution statute survives the defendant's facial challenges, and as applied arguments. His First Amendment rights are not curtailed, and by getting copies of his papers, which will be sold, he still can express his ideas...

Case o' The Week: Ninth's blow to Kimbrough, Gonzalez-Zotelo and fast-track disparities

Posted on January 11, 2009
A disappointing decision authored by Judge Barry Silverman (left) deepens a circuit split on the scope of a district court's sentencing discretion after Kimbrough. See United States v. Gonzalez-Zotelo, __ F.3d __, 2009 WL 37144 (9th Cir. Jan. 8, 2009), decision available here...

U.S. v. Gonzalez-Zotello, No. 08-50010

Posted on January 08, 2009
U.S. v. Gonzalez-Zotello, No. 08-50010 (1-8-09). This is a disappointing decision regarding 3553(a)(6) factors, "fast-track," and variances to correct unwarranted fast-track disparities. The defendant was not given a fast-track plea because of a prior sex offense...

U.S. v. Collins, No. 06-50339 (1-7-09).

Posted on January 07, 2009
U.S. v. Collins, No. 06-50339 (1-7-09). Batson comes to the 9th again. This was a drug conviction, in which the government struck the only remaining African American. The defendant asked for justification, arguing that a prima facie Batson showing was made...

Case o' The Week: Duncan Do-Nots: 28 years for Sex Registration Offense Grossly Disproportionate

Posted on January 03, 2009
Judge Bybee, (right) joined by Judges Kleinfeld and Canby, end 2008 with a bang: with an Eighth Amendment habeas reversal of a California sex-registration sentence. See Gonzalez v. Duncan, __ F.3d __, No. 06-56523, 2008 WL 5399079 (9th Cir. Dec. 30, 2008), decision available here...

Case o' The Week: Sausage Carver, Mem Dispos and "final" Decisions

Posted on December 25, 2008
"To retain respect for sausages and laws, one must not watch them in the making." Otto von Bismark. Judge Stephen Reinhardt (left) takes us deep into to the sausage factory in a fascinating decision that illustrates just how much difference one judge can make ...

Case o' The Week: The Real Deal, United States v. Augustine Murillo & Suspended Sentences

Posted on December 21, 2008
The Ninth continues its holiday break from criminal decisions, with the second straight week of civil cases filling its plate. This gives us a chance to reach back a bit and look a little decision with a big (unwritten) sub-context: United States v. Augustine Garcia Murillo, __ F...

Case o' The Week: Ninth Reverses Death Penalty for Prosecutorial Misconduct, Sechrest

Posted on December 07, 2008
Pregerson, Berzon, and Fletcher: oh my. What happens when a death penalty case involving "flagrant" prosecutorial misconduct comes before this panel of the former -- and future -- Lions of the Left?Sechrest v. Ignacio, __ F.3d __, 2008 WL 5101988 (9th Cir...

U.S. v. Murillo, No. 07-50462 (12-1-08).

Posted on December 05, 2008
U.S. v. Murillo, No. 07-50462 (12-1-08). Many state sentencing schemes allow for suspension of sentence with imprisonement for a year as a condition of probation. That was done here. This was a no-no. The Federal Sentencing Reform Act, and the Guidelines, do not allow for such a suspension...

Gallagher v. U.S. District Court,

Posted on November 13, 2008
Gallagher v. U.S. District Court, No. 07-74593 (11-13-08). "[The Defendant] Can't Get No Satisfaction." Instead, the 9th (McKeown) begins the opinion with the Rolling Stones "classic" lyrics "You can't always get what you want." Okay, so what is this about? "A defendant who chooses to take a conditional plea cannot always assume the court will grant its consent...

U.S. v. Youssef, No. 07-10335 (11-5-08).

Posted on November 06, 2008
U.S. v. Youssef, No. 07-10335 (11-5-08). The defendant checked "no" to the question of whether he had ever been arrested or convicted of an offense on the I-495 immigration form to adjust status. He had, in fact, been convicted of resisting or disobeying a court order...

Case o' The Week: One Minute (Order) Means Years, Snellenberger

Posted on November 02, 2008
Only in California can one burgle an outhouse (though why one would remains a mystery). United States v. Snellenberger, __ F.3d __, 2008 WL 4717190, *1 (9th Cir. Oct. 28, 2008) (en banc), decision available here. California Penal Code � 459 burglary is broader than the federal "generic" definition (limited to residences), so it is a frequent question as to whether a prior burglary conviction qualifies as a "crime of violence" for federal sentencing enhancements (like Career Offender)...

U.S. v. Snellenberger, No. 06-50169

Posted on October 28, 2008
U.S. v. Snellenberger, No. 06-50169 (10-28-08) (en banc). Defendant challenges a prior conviction that renders him a career offender. The prior was a burglary, but the issue was whether it fit under a Taylor analysis (California's burglary statute is overbroad)...

Case o' The Week: Ninth Uses Federal Statute for Federal Definition - and Government Objects, Estrada-Espinoza

Posted on October 25, 2008
Judge Sidney Thomas (left) authors a characteristically thoughtful opinion in an important en banc decision on the jurisprudential goo of the categorical / modified categorical sentencing analysis: United States v. Estrada-Espinoza v. Mukasey, __ F.3d __, 2008 WL 4615681 (9th Cir...

U.S. v. Seljan, No. 05-50236 (10-23-08)

Posted on October 24, 2008
U.S. v. Seljan, No. 05-50236 (10-23-08) (en banc). The short holding: letters can be read at POEs. This case involved border agents at an airport checking a FedEx package for currency. Letters were opened, some with small currency, and a few lines of the letter were scanned that indicated an interest in little girls...

U.S. v. McTiernan, No. 07-50430

Posted on October 21, 2008
U.S. v. McTiernan, No. 07-50430 (10-21-08). What is a "fair and just" reason for withdrawing from a plea? Here, it is because the defendant alleges that he was not adequately advised that a key piece of evidence -- a recording -- might be suppressible for violating the wiretap statute...

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