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U.S. v. Calvert (9th Cir. - Jan. 14, 2008)

By Shaun Martin

Here's a good one for the day. An opinion by Judge Larson, sitting by designation from the Central District. Who's an old debate type -- from roughy my era, no less -- so I was especially attentive. But even without the personal connection, I'd still have been interested in the opinion.

For two reasons. One policy-centered, the other far from it.

First, as to policy, Judge Betty Fletcher writes a very interesting concurrence about the role of dicta, especially in the context of explaining the rationale behind one's decision. It's short, and definitely worth reading. My sense was that Judge Fletcher was fine with at least some of the explanation, but not other parts, and just wanted it left out. But Judge Larson, who had devoted the effort to writing the thing, and who also thought that it helped explain why he reached the result he did, wanted it left in. And since Judge Gould was willing to go along with Judge Larson, you've got Judge Fletcher's concurrence.

Disputes like these are always interesting. On the one hand, sure, you don't want to spout off about unnecessary things. But you also want to tell observers where you're coming from, even if some -- or even most -- of your analysis is technically unnecessary to the result. After all, virtually everything other than "We find for the appellee" (or whatever) is, in some sense, technically "dicta". But we still put it in there.

That said, sometimes judges definitely say more than what's necessary. And the dispute here is a pretty good example of two sides of the coin, and prompts some good thoughts about how much is enough and how much is too much.

So that's the policy reason to read the opinion. On the non-policy side, it's also got a line -- on the first page, even -- that I first thought was funny, and that later became telling. Timothy Tyler convinced an elderly couple to let them into their house on the pretext of inspecting the motor home they had listed for sale, and then bound the couple to chairs in their dining room with plastic ties. At which point the wife asked Tyler to please, please leave, to which Tyler responded "I don't like this any more than you do."

Which is absurd, of course. Sure, Tyler might not have been having a good time. But I'm nonetheless quite confident that Tyler would much rather be in the position he was in than in the bound and at-the-mercy-of-a-stranger position that Gerardine (the wife) was in.

So I thought that was an interesting thing to say. One with a modicum of truth, but that nonetheless was total nonsense.

But then guess what happens? Tyler takes Geraldine to go to the bathroom, and when he comes back to the dining room, Geraldine hears three gunshots. At least one of which was from a gun that Clyde (her husband) had surreptitiously retrieved from the kitchen during the home invasion robbery. Clyde had been shot in the abdomen by Tyler, and spent several weeks in the hospital as a result. But he was better off than Tyler. Who died from the gunshot wounds inflicted by Clyde during the battle.

So, in the end, Tyler was right. He didn't like these events any more than Geraldine did. And turned out to like them very much less.

An interesting case.

POSTSCRIPT - A little birdy called my office shortly after I posted this -- anonymity is always preserved here at the California Appellate Report -- noting that he couldn't figure out from my post who Calvert (the name of the defendant in the caption) was. Calvert, as it so happens, was a colleague of Tyler (the dead guy) in prison, and Calvert allegedly recruited Tyler to retailiate against Clyde for previously testifying against a guy named Peters, another jailmate, to whom Calvert owed $60,000. Confusing? Such is the nature of criminal conspiracies, I'm afraid.

Full post as published by California Appellate Report on January 14, 2008 (boomark / email).