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U.S. v. Driggers, No. 07-30190 (3-18-09). Defendant appealed his conviction for murder for hire, 18 U.S.C. 1958, and the 9th considered the issue of the jury instruction. The defendant had asked the hiree to come to Idaho to murder his ex-wife. The hiree crossed state lines. The jury instruction, however, did not say that the defendant had to have the intent for the murder when the travel took place. The 9th (Kozinski joined by B. Fletcher) found error, because the jury could have found that the interstate travel had occurred at any time, or that it occurred without intent. However, the error was harmless given the overwhelming nature of the evidence, not helped by tape recordings about why the hiree should travel. In a concurrence, Rawlison questions the finding of error, since the instruction tracked the statutory language. The majority's finding of error looked to precedent in other circuits, and Rawlison would say that if the statutory language is followed, that should be good enough.

U.S. v. Flores, No. 08-30076 (3-18-09). Defendant tried to cooperate: he met with the government, gave good information, and appeared to act in good faith. The government shrugged, though, and said that since no indictments nor arrests resulted, the cooperation was not "substantial." Under the plea, the government had sole discretion to move for a substantial assistance motion. The 9th (Reavley joined by Tallman and M. Smith) also shrugged, holding that it is difficult for the court to determine what is substantial or not, and that the terms of the plea are binding unless the government acted in bad faith, and that could not be found here. The district court did not err in deferring to the government's assessment of substantial assistance; nor did the court err in refusing a hearing. When it comes to 5Ks, the prosecutors do hold all the power.

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