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U.S. v. Maness, No. 06-30607 (5-19-09). The 9th considers the issue of self representation at re-sentencing. The court should have allowed the defendant to represent himself at the re-sentencing. This was error. However, the 9th distinguishes between a structural error for the right to self-representation at the trial stage and at sentencing. The 9th holds that error in not allowing self representation at sentencing does not infect or call into question the integrity of the process. (Ed note: Really? Isn't sentencing as important and occasionally more important than the guilt phase?). Here, the error was harmless because the defendant did file briefs, and pleadings, and participated.

U.S. v. Heron-Salinas, No. 08-50276 (5-20-09). The 9th, in a per curiam, holds that a conviction for assault with a firearm under Calif. Penal Code 245(a)(2) is a categorical crime of violence and an aggravated felony for immigration purposes. The 9th considers a plain reading of the statute as satisfying the mens rea requirements of 18 U.S.C. 16(a) and (b) because the offense's elements of unlawful attempt, plus a present ability, to commit a violent injury on a person with a firearm, mean that the defendant acts in disregard for the safety of another.

U.S. v. Price, No. 05-30323 (5-21-09). This is a strong opinion on the prosecutor's obligation to disclose Brady material. The defendant was convicted of being a felon in possession when a gun was found under the driver's seat of a car in which he was riding as a passenger in the rear. The key piece of evidence was testimony by a witness that she had seen the defendant with a gun in his waistband 15 minutes prior. This witness, by all accounts, had little regard for truth and honesty. She had a lengthy history of run-ins with the police and convictions -- all of which was NOT disclosed to defense counsel despite a request. The witness was attacked for faulty perception and memory, but the Brady material was not uncovered until after the trial (it was disclosed in defendant's brother's case). The trial court held that the prosecutor may not have had the information, and so he was not responsible, and that it was harmless. The 9th (Reinhardt joined by Goodwin and Pregerson) was aghast. The opinion makes clear that a prosecutor has a responsibility to check with law enforcement for such information. "Under longstanding principles of constitutional due process, information in the possession of the prosecutor and his investigation officers that is helpful to the defendant, including evidence that might tend to impeach a government witness, must be disclosed to the defense prior to trial. It is equally clear that a prosecutor cannot evade this duty simply by becoming ignorant of the fruits of his agents' investigations." The error was prejudicial. The conviction is vacated and the matter remanded for a new trial.

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