ADVERTISEMENTS

Mickey v. Ayers, No. 07-99006 (6-7-10) (O'Scannlain with Rawlinson and Bea). The 9th affirms the denial of habeas relief on the guilt claims and reverses the granting of relief on the sentencing issues. The 9th focused on the mitigation, and found that there was no IAC: the issues of abuse and drug usage were sufficiently investigated, and adequately presented through experts. Moreover, even if there was error, there was no prejudice. The jury focused on the nature and manner of the double murders; the raising of some sexual abuse issues would have opened the door to the petitioner's own sexual abuse convictions; and the evidence supposedly uncovered was not game changing.

U.S. v. Laurienti et al, No. 07-50240 (6-8-10) (Graber with Silverman and Scullin, D.J.). Buy low and sell high can make one money in stocks. When the broker, though, is pumping and dumping, with insider trading, breaches of duty, and not disclosing fees, it can lead to convictions, which occurred here. The defendants raised numerous issues as to guilt and sentencing. The 9th finds some errors on guilt, most noticeably an erroneous jury instruction as to trust and excluded expert testimony, but such errors were harmless. The jury instruction was found to be invited error and the expert was not prejudicial. The district court, though, erred on several sentencing issues, including miscalculation of loss, and abuse of trust for some defendants. The case was remanded for resentencing.

U.S. v. Villasenor, No. 08-50541 (6-10-10) (Bybee with T. Nelson and M. Smith). Can one breathe easy after clearing a POE? No. Even though one is referred to secondary; even though a dog sniff fails (and the dog is subsequently "fired"), one still falls under the extended border, and if there are facts that cause a police officer to be suspicious -- say pulling into a gas station, using the rest-room and then driving away -- such facts, combined with a tip from a CI, can trigger reasonable suspicion, and thus a search. Such was the instance here. The ICE agent got information of a smuggling operation, with details. He was on the watch for the car, and other details. The car had come through secondary (see above) when happenstance had the agent pull alongside the car. The agent observed the car, some phone calls, and eventually pulled it over because of a traffic violation (the rosary (!) hanging from the rearview mirror obstructed sight lines). The district court had suppressed the search (37+ lbs of cocaine, based on having emerged from secondary inspection. Not so fast, holds the 9th, in reversing the suppression. The search looks good to us under the extended border doctrine (close to the border) because the agent did not know of the secondary search, the tip was good, there was some actions that caused suspicion (various stops at known drug centers), and because legally the police can still watch and search after clearing a first hurdle at the border.

West v. Ryan, No. 08-99000 (6-10-10) (Callahan with Kleinfeld and Wardlaw). The 9th upholds the denial of an evidentiary hearing on an IAC claim. The 9th finds that, on the record, the trial counsel made objectively reasonable choices in presenting mitigation. No colorable claim of IAC was presented.

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