ADVERTISEMENTS

U.S. v. Monday, No. 08-50206 (8-2-10) (Canby with Wardlaw and Callahan). The defense in this postal mail theft case was that the mail carrier had a grudge with management; no one would talk to him; and so he used the planted mail (birthday card with $40) to send a message. He took the $40 and used a portion to buy some snacks, aware that it was a plant, so he would be talked to. He was. It was a prosecution. On appeal, he argues that the statute, 18 U.S.C. 1709, requires specific intent to permanently deprive the owner of the property, and he should have gotten a specific intent instruction. The defendant points to precedent discussing the predecessor statute of 1915, the doctrine of noscitur a socilis (unilluminating legislative history), consistency with the statute's title, and the rule of lenity. The 9th, however, starts and stops with what it terms the plain language of the statute, which requires only removal, and with the general intent against opening mail. The 9th also aligns with two other circuits that decided the issue. So the postman may specifically ring twice; but generally steals once.

Cheney v. Washington, No. 08-35204 (8-2-10) (Ikuta with Kleinfeld and Bea). What is more deferential than AEDPA review of state decisions? Review of state court IAC claims under AEDPA, which has a "double deference" standard (cf. double secret probation). In this case, a petitioner argues that in a state child sexual assault case, his lawyer should have objected when the prosecutor, examining an officer, elicited that referrals are made only if they are felt to be true. The lawyer let that slip, but did object to prosecutor vouching in closing argument. The 9th sets out the "double deference" standard from the Supremes in Knowles v. Mirzayance, 129 S.Ct. 1411 (2009). The petitioner tries to argue unreasonable application of precedent, but the 9th looks at the deference of the decision under AEDPA and the general principles of Strickland (violate standards and prejudice), and concludes that the state courts decisions as to IAC were not objectively unreasonable under AEDPA and under the application of Strickland and so did not involve an unreasonable application of clearly established federal law.

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