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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

Case o' The Week: Paris is Worth a Mass, Cherer

Posted on January 26, 2008
The Guidelines have no clothes -- and Gall and Kimbrough give experienced federal jurists just the platform they need to bluntly point this out. The latest broadside fired at the guideline edifice comes in a great dissent by Judge Noonan in United States v...

U.S. v. Cherer, No. 06-10642 (1-25-08).

Posted on January 25, 2008
U.S. v. Cherer, No. 06-10642 (1-25-08). "Be careful what you wish for." The defendant was caught in a sting operation traveling to visit what he thought was a 14-year old girl. That "girl" was a middle-aged FBI agent. At trial (yes, trial), the defendant argued that he did not know the girl was 14, and there was some role-playing...

Jackson v. Brown, No. 04-99006

Posted on January 23, 2008
Jackson v. Brown, No. 04-99006 (1-23-08). "A promise made is a debt unpaid." The state's promise to jailhouse informants was made, paid, but not disclosed. Moreover, the state prosecutor stayed silent when the informant, under oath, testified that no promises were made of any kind...

U.S. v. Lowry, No. 06-10469 (1-16-08).

Posted on January 22, 2008
U.S. v. Lowry, No. 06-10469 (1-16-08). If a tree falls in a forest, and only an aboriginal hears it, does the Forest Service care? You betcha. The 9th tackles the issue of whether an Indian, laying claim to Forest Service land, bears the burden of proving she has individual aboriginal title or does the Forest Service have to prove it as an element...

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Case o' The Week: A Cure for "Guidelinitus", Castendada

Posted on January 20, 2008
Sixth Circuit Senior Judge Gilbert S. Merritt (right) had nothing to do with the Ninth's Case o' The Week in United States v. Castenada, __ F.3d __, 2008 WL 126641 (9th Cir. Jan. 15, 2008), decision available here. Judge Merritt's recent dissent on guideline practice after Gall and Kimbrough, however, is such an honest and candid assessment of federal sentencing that it deserves national recognition (and heavy citation in sentencing memoranda)...

U.S. v. Castenada, No. 05-10372

Posted on January 15, 2008
U.S. v. Castenada, No. 05-10372 (1-15-08). In one of the first post-Kimbrough decisions, the 9th remands a crack conspiracy conviction for resentencing. At sentencing, the district court acknowledged that the crack penalties may be "out of whack": but it was not for the district court to change them; that was up to Congress...

Case o' The Week: Ninth Sputters About Loss Amount, Tulaner

Posted on January 14, 2008
Know much about platinum sputtering disks? Neither do we, except that they're wicked expensive - $200,000 a pop. In an important (though brief) new case on loss amount in fraud cases, Judge Tallman upholds hitting a defendant with twelve of these disks for sentencing (a loss of $2...

U.S. v. Calderon-Segura, No. 05-50820

Posted on January 11, 2008
U.S. v. Calderon-Segura, No. 05-50820 (1-9-08). This an appeal from a 1326 conviction and failure to allege prior conviction and removal. The 9th noted that, under Salazar-Lopez, the indictment should have alleged, in addition to facts of the prior removal and subsequent reentry, the date of the prior removal or that it occurred after a qualifying conviction...

Case o' The Week: Ninth Salehs Forth with Bad Miranda Decision

Posted on January 06, 2008
A disappointing habeas loss tolerates a non-Mirandized phone interview by a cop, of an inmate in custody -- when the inmate initiates the call. Saleh v. Fleming, __ F.3d __, 2008 WL 43719 (9th Cir. Jan. 3, 2007), decision available herePlayers: Hard-fought appeal by Seattle FPD R&W Attorney Corey Endo...

David v. Silva, No. 05-16821 (1-2-08).

Posted on January 03, 2008
David v. Silva, No. 05-16821 (1-2-08). The state cannot use a "failure to exhaust" bar in this petitioner's appeal. The petitioner was serving a 9-year sentence when a guard messed with his food. A food fight ensued, and the petitioner was docked 150 days good time...

U.S. v. Lococo et al, No. 05-50550

Posted on January 02, 2008
U.S. v. Lococo et al, No. 05-50550 (12-27-07). This appeal challenged wiretap evidence, and an assortment of sentencing issues. The 9th gave the issues short shrift in this per curiam opinion. The 9th found that the government's wiretap application adequately described the various steps it tried to take in investigating the offense, including seeking cooperators, hidden and direct surveillance, trash pick-up, and so forth...

Case o' The Week: Ninth Gets "Cheek"-y with Tax Evasion Defendant, Cohen

Posted on December 30, 2007
One of the last decisions of '07 is a very good Tallman opinion emphasizing the right to a defense expert, and explaining the mens rea requirements in tax evasion cases. United States v. Lawrence Cohen, __ F.3d __, 2007 WL 4485629 (9th Cir. Dec. 26, 2007), decision available here...

U.S. v. Cohen et al, No. 06-10145

Posted on December 26, 2007
U.S. v. Cohen et al, No. 06-10145 (12-26-07). Tax protestors were convicted, and the lead protestor, Schiff, also was pro se, where he managed to get himself cited numerous times for summary criminal contempt. On appeal, the 9th (Tallman joined by Thomas and Ikuta) addressed mental condition testimony of codefendant Cohen and the contempt convictions of Schiff...

Case o' The Week: Catholic, Buddist Zimmerman - and that's OK, in the Ninth

Posted on December 21, 2007
Merry Christmas. Happy Hanukkah. Joyous Kwanzaa. Blessed solstice (left). The Ninth doesn't care if your beliefs fit neatly into any particular religion: if your convictions are sincerely held, the Ninth (and the Religious Freedom Restoration Act) has your back...

U.S. v. Biagon, No. 06-10479 (12-17-07).

Posted on December 21, 2007
U.S. v. Biagon, No. 06-10479 (12-17-07). The court acknowledged the "elephant in the room" at sentencing, but when the defendant asked that the court be cleared and sealed so he could address "the elephant," the court said "no." Acknowledgement was enough...

Byrd v. Lewis, No. 06-15977 (12-11-07).

Posted on December 17, 2007
Byrd v. Lewis, No. 06-15977 (12-11-07). Petitioner, serving 25- to life for stealing a car under California's three strike law, gets relief from the 9th (Rawlison and Restani). The petitioner argued that he had "consent" to borrow a friend's car for several days, and when stopped, the radio was gone, belongings were gone, it would not go in reverse, and later, could not move forward...

Case o' The Week: AFPD wins Betts Against AUSA with Ninth's Approval

Posted on December 15, 2007
In a good decision on conditions of supervised release, Judge Kleinfeld reaffirms the frequently-invoked liberty interest of having a beer in your recliner while watching a ball game. United States v. Brandon Betts, __ F.3d __, 2007 WL 4355365 (9th Cir...

Crater v. Galaza, No. 05-17027

Posted on December 10, 2007
Crater v. Galaza, No. 05-17027 (12-6-07). The 9th denies rehearing en banc in this case, but there is a spirited dissent by Reinhardt, joined by Pregerson, Gould, Paez, and Berzon, arguing that AEDPA violates the separation of powers doctrine. It does so by prohibiting the ordinary principles of stare decisis in habeas cases, thereby interfering with the federal judiciary's judicial process...

Case o' The Week: Ninth Could Use a (Learned) Hand in Conspiracy Cases, Macias-Valencia

Posted on December 09, 2007
You have to actually possess sufficient amounts of specific drugs to get a mandatory minimum sentence under federal drug law. See 21 USC Section 841(a). (Unless, of course, you're charged with conspiring to violate those laws . . . in which case, no actual drugs need to be involved at all, to earn a ten year mandatory minimum sentence...

Cooper v. Brown, No. 05-99004 (12-4-07).

Posted on December 06, 2007
Cooper v. Brown, No. 05-99004 (12-4-07). The 9th affirms the denial of a habeas petition. The petitioner asks for various tests to be conducted, and they were, with the result that innocence was not established. The 9th (Rymer joined by Gould and with a concurrence by McKeown) holds that neither the actual innocence "gateway" nor AEDPA standards were meet for the claims...

Case o' The Week: Snitch Golden Despite Vouching, US v. Brooks

Posted on December 02, 2007
A disappointing loss on plain error review still offers some very useful language to fend off prosecutorial vouching. United States v. Brooks, __ F.3d __, 2007 WL 4198177 (9th Cir. Nov. 29, 2007), decision available here. The decision is particularly helpful in cases involving snitches, and wiretaps...

Guant�namo Book Club II

Posted on December 01, 2007
Last fall, I posted a list of ten readings recommended for those interested in the representation of Guant�namo prisoners (here). On the eve of the Supreme Court argument in Boumediene, I have six additions to the list. 1. Clive Stafford Smith, Eight O'Clock Ferry To The Windward Side: This is a wonderful book by one of the leading lawyers for Guant�namo prisoners, a former death penalty defender and current attorney for the human rights organization Reprieve...

U.S. v. Brooks, No. 05-30261 (11-29-07).

Posted on November 30, 2007
U.S. v. Brooks, No. 05-30261 (11-29-07). Vouching is bad. The 9th counts the ways in this opinion, although it finds such bolstering ultimately harmless. Still, this is an interesting and useful opinion. The 9th (Guilford joined by Kozinski and Fischer) unequivocally states that the usual questions of a cooperating witness about why they have to tell the truth (i...

Doe v. Woodford, No. 06-16154 (11-27-07).

Posted on November 28, 2007
Doe v. Woodford, No. 06-16154 (11-27-07). This habeas concerned a plea to a sentence of 25 to life for a planned murder. The petitioner, a juvenile, alleges IAC because his lawyer did not undertake additional mental health investigation and that he allowed detectives to interview petitioner...

Case o' The Week: Congress isn't bad enough -- Ninth Limits its Own j/x (Again), United States v. Garcia

Posted on November 25, 2007
Hard to tell, sometimes, who is more eager to strip the Ninth of its jurisdiction to hear criminal appeals -- Congress, or the Ninth itself. See United States v. Adrian Garcia, __ F.3d __, 2007 WL 4096184 (9th Cir. Nov. 19, 2007), decision available here...

Search and Seizure Update

Posted on November 21, 2007
The November 2007 version of Developments in Federal Search and Seizure Law is now available on the Oregon Federal Public Defender website here. We have been collecting Fourth Amendment cases for over ten years, integrating defense wins into an outline that provides counterpoints to the trends away from protection of individual rights...

U.S. v. Garcia et al, No. 05-30356

Posted on November 21, 2007
U.S. v. Garcia et al, No. 05-30356 (11-19-07). A promise made is the sentence to be paid. A specific stipulated sentence generally is a jurisdictional bar. Defendants here were sentenced pursuant to a stipulated sentencing range under Rule 11(c)(1)(C)...

Case o' The Week: Ninth Bows to State Secrets Privilege (even though Feds blew disclosure), Al-Haramain

Posted on November 18, 2007
A slow week for criminal opinions allows a look at an interesting new case of national importance: Al-Haramain Islamic Foundation, Inc. v. Bush, __ F.3d __, 2007 WL 3407182 (9th Cir. Nov. 16, 2007), decision available here. In Al-Haramain, a very good panel of Hawkins, Pregerson and McKeown (pictured during argument, above) still defers to the government, and uphold the government?s reliance on the ?state secrets? privilege...

Case o' The Week: Ninth Can't Cope with Forced Meds on Supervised Release,

Posted on November 09, 2007
Forced medication (like chemical castration) to discourage criminal behavior and ensure good citizenship? Sound like A Clockwork Orange? Judge Thomas and the Ninth thinks so too -- in a particularly thoughtful decision that discusses the important liberty interests implicated by mandatory medication as a condition of supervised release...

U.S. v. Gamboa-Cardenas, No. 05-50151

Posted on November 08, 2007
U.S. v. Gamboa-Cardenas, No. 05-50151 (11-8-07). The "safety valve" sinks in the jurisdictional Maritime waters. Defendants were convicted of drug crimes under the Maritime Drug Law Enforcement Act. The sentencing court applied the safety valve to the mandatory minimums, then codified at 46 USC 1903...

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