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Federal Judiciary

Ninth Circuit Blog

Case Summaries and Commentary by Federal Defenders of the Ninth Circuit

Post Frequency: 1.3/day

Last Entry: November 01, 2020 at 14:48:00

U.S. v. Monday, No. 08-50206 (8-2-10)

Posted on August 02, 2010
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...

Case o' The Week: Third Time Lucky - Forrester, Conspiracies and Sentencing

Posted on August 01, 2010
If at first you don't succeed, try, try again.And again. United States v. Forrester (III), No. 09-50029, __ F.3d __, (9th Cir. July 30, 2010) (Ord. & amend. op.), decision available here.Players: Nice win rewards dogged litigation for former San Diego AFPD Ben Coleman (now of Coleman & Balogh, LLP)...

Porter v. Ollison, No. 07-55305

Posted on July 30, 2010
Porter v. Ollison, No. 07-55305 (7-29-10) (Hart, D.J. N. Dist. Ill., with Gould and Bea). This is a post-Holland case regarding equitable tolling. The 9th considers whether there should be an evidentiary hearing to determine if counsel's actions were so egregious that the petitioner was prevented from timely filing...

U.S. v. Rosas, No. 09-10011 (7-27-10)

Posted on July 28, 2010
U.S. v. Rosas, No. 09-10011 (7-27-10) (N. Smith with B. Fletcher and Thomas). If a defendant fails to appear for sentencing, and ends up in Mexico, it behooves him not to return to the US. Alas, this defendant did return (left in 2003 and got picked up in 2007), and got a new charge (failure to appear (18 U...

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Skilling And Constitutional Avoidance

Posted on July 27, 2010
As lawyers who frequently litigate the construction of federal criminal statutes, federal defenders are quite fond of the doctrine of constitutional avoidance. In the Skilling case reversing the defendant?s Enron conviction for fraud, the Court provides some helpful language on the doctrine of constitutional avoidance, but also includes a potentially confusing footnote that needs some clarification...

U.S. v. Thomas, No. 08-10450 (7-22-10)

Posted on July 26, 2010
U.S. v. Thomas, No. 08-10450 (7-22-10) (Bybee with Tashima and Graber). This relates to the BALCO investigation. The defendant, a former professional cyclist, testified with a grant of immunity before a grand jury. Her responses to questions about performance enhancing drugs were deemed perjury...

U.S. v. Burkett, No. 09-30260 (7-20-10)

Posted on July 21, 2010
U.S. v. Burkett, No. 09-30260 (7-20-10) (Hall with Wardlaw and Gould). The 9th affirmed the denial of a suppression motion. It was a stop on a highway for speeding, and the police officer had reasonable suspicion to "stop and frisk" the passenger due to his furtive movements while the driver was refusing to comply with instructions, his deceptive responses, and the strange way he opened the car door, and kept his arm by his side...

Rhoades v. Henry, No. 07-99023

Posted on July 19, 2010
Rhoades v. Henry, No. 07-99023 (7-15-10) (Rymer with Gould and Bybee). The Supremes said that Ring (requiring capital jury sentencing) was not retroactive in Summerlin, 542 U.S. 348 (2004) but that states could apply Ring retroactively. See Danforth v...

Case o' The Week: Specific Loss from General Savings - Avila-Anguiano

Posted on July 17, 2010
The good news? The defendant is remanded for resentencing. By the time he gets back before the district court, the statute that created a ten-year mandatory minimum no longer exists!The bad news? He still gets the ten (under a statute that no longer exists)...

U.S. v. Broussard, No. 09-10331

Posted on July 14, 2010
U.S. v. Broussard, No. 09-10331 (7-14-10) (Kozinski with Thompson and McKeown). How much contempt can a court have for a defendant? Apparently unlimited, because this case deals with how convictions for contempt are classified for sentencing purposes...

Case o' The Week: OK to "Go Down in Flames" - Johnson and Pro Se Representation

Posted on July 12, 2010
Turns out there are 300 good reasons not to go pro se (with 15% off for good time). United States v. Johnson, _ F.3d _, 2010 WL 2653221 (9th Cir. July 6, 2010), decision available here.Players: Decision by Judge Silverman, upholding N.D. Cal. District Judge Alsup (right)...

Lee v. Lambert, No. 09-35276 (7-6-10)

Posted on July 08, 2010
Lee v. Lambert, No. 09-35276 (7-6-10) (O'Scannlain joined by Wolle, D.J.; concurrence by N. Smith). AEDPA does not have an innocence exception to its statute of limitations. That was the decision by the 9th, where the panel reversed and remanded a granting of relief by a district court...

U.S. vs. Graf, No. 07-50100 (7-7-10)

Posted on July 08, 2010
U.S. vs. Graf, No. 07-50100 (7-7-10) (Tallman with O'Scannlain and Block, D.J.). This deals with attorney-client privilege in the context of corporate counsel. The defendant, found to be a functional employee of a corporation, spoke with corporate counsel...

McDonald Signals The End Of Oregon?s Non-Unanimous Jury Rule

Posted on July 06, 2010
The Supreme Court?s opinion in McDonald, which extended the federal Second Amendment protections in identical form to the States, should finally bring an end to Oregon?s deviant non-unanimous jury rule. Assistant Federal Public Defender Ren�e Manes has been campaigning against the injustice of non-unanimous juries in what is probably the least friendly forum for such challenges: federal habeas corpus under the extremely restrictive standards of the Antiterrorism and Effective Death Penalty Act of 1996...

Case o' The Week: Better Off Ted - Struckman, Brady / Giglio, and Defendant Extractions

Posted on July 04, 2010
Want to know how the Feds get away with a made-up informant, potential illegal wiretaps, and a series of false assertions repeated to a federal district court judge -- with no apparent investigation into the misconduct or disciplinary action?You're in good company: so does Judge Berzon...

U.S. v. Struckman, No. 08-30312

Posted on July 01, 2010
U.S. v. Struckman, No. 08-30312 (6-30-10) (Berzon joined by O'Scannlain and Kleinfeld; concurrence by Berzon). The government charged the defendant with massive tax fraud in 2004. He left to Panama and refused to come out. The government then made misrepresentations to the Panamanian government and courts that got the defendant removed...

U.S. v. Buzo-Zepeda, No. 09-50190

Posted on June 28, 2010
U.S. v. Buzo-Zepeda, No. 09-50190 (6-25-10) (N. Smith with Schroeder and Fisher). This is a Sentencing Guidelines criminal history counting case. California has what is known as a Johnson waiver when it comes to state sentences. A Johnson waiver is when a state defendant waives incarceration credit for pretrial custody in order for the state court to sentence him longer to jail...

Case o' The Week: A Batson Challenge (with No Jury) - Restitution

Posted on June 26, 2010
The Ninth crafted several new circuit rules in a case this week, in a Batson challenge where no jury ever entered the courtroom. United States v. Batson,__ F.3d __, 2010 WL 2473234 (9th Cir. June 21, 2010), decision available here.Players: Battle lost, war won by CD Cal AFPD Kathryn A...

Murdoch v. Castro, No. 05-55665

Posted on June 22, 2010
Murdoch v. Castro, No. 05-55665 (6-21-10) (en banc) (Tashima for plurality of Kleinfeld, Ikuta, Callahan, and N. Smith; Silverman concurrence; Kozinski dissents with W. Fletcher and Wardlaw; Thomas dissents with McKeown). The petitioner here was convicted of a murder 13 years before...

Case o' The Week: Graber and Waiver - Laurienti and 10b-5

Posted on June 21, 2010
In a new rule for white collar defense, Judge Graber (left) holds that brokers can be criminally liable for failure to disclose commissions - if they owe a fiduciary duty to their clients. United States v. Laurienti,__ F.3d __, 2010 WL 2266986 (9th Cir...

Banjo v. Ayers, No. 08-56512 (6-17-10)

Posted on June 21, 2010
Banjo v. Ayers, No. 08-56512 (6-17-10) (Tallman joined by O'Scannlain and Block, D.J.). The petitioner requested equitable tolling to allow his federal petition to be heard. He had been convicted in California state court of sodomy and kidnapping (25 to life)...

U.S. v. Gossi, No. 09-30202 (6-15-10)

Posted on June 17, 2010
U.S. v. Gossi, No. 09-30202 (6-15-10) (Alarcon joined by W. Fletcher and Rawlinson). "Its not fair, I got punished by having to pay more restitution than the others." That is the complaint and appeal of the defendant under the Mandatory Victims Restitution Act...

U.S. v. Villavicencio-Burruel,

Posted on June 15, 2010
U.S. v. Villavicencio-Burruel, No. 09-50204 (6-14-10) (Gould joined by Canby and Ikuta). The 9th affirms a 1326 conviction in an appeal that raised the issue of exhaustion of the removal proceedings. The defendant had not waived his right to an appeal at the removal hearing; indeed, he twice said he was not waiving his appeal...

U.S. v. Bonds, No. 09-10079 (6-11-10)

Posted on June 14, 2010
U.S. v. Bonds, No. 09-10079 (6-11-10) (Schroeder joined by Reinhardt; dissent by Bea). The 9th calls the government out in the appeal of the district court's decision from the Bonds steroids/perjury case. The district court had precluded statements under hearsay that supposedly linked Bonds with steroids use...

Case o' The Week: Barry Bonds Safe, and Wins in the Ninth - FRE 807 and Agency, US v. Bonds

Posted on June 12, 2010
Ever wonder how much litigation effort, investigation, research, oral argument, and how many opinions have been devoted to issues arising arising from urine in the federal courts of the Ninth Circuit? Lots. And, turns out, even more this week. United States v...

Mickey v. Ayers, No. 07-99006 (6-7-10)

Posted on June 11, 2010
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...

Case o' The Week: Bad Loss from Goodwin - Blinkinsop and Child Porn Sentencing

Posted on June 05, 2010
A tough challenge to an in-guideline sentence produces a disappointing opinion that relies on some of the familiar -- and inaccurate -- assumptions underlying child pornography sentencing. United States v. Blinkinsop, __ F.3d __, No. 09-30120, 2010 WL 2105181 (9th Cir...

Case o' The Week: Nontestiminal (enough) - Orozco-Acosta, Confrontation Clause, and Warrants of Removal

Posted on May 31, 2010
Because of the sheer volume of prosecutions, trials, and appeals (and the aggressiveness of defenders fighting these cases) "simple" illegal reentry cases generate a disproportionate share of federal law on evidence, criminal procedure, and sentencing...

U.S. v. Blinkinsop, No. 09-30120

Posted on May 27, 2010
U.S. v. Blinkinsop, No. 09-30120 (10-27-10)(Goodwin with Hawkins and N. Smith). The defendant pled guilty to receiving child porn and received a 97-month sentence (bottom of the guidelines) and numerous special conditions of SR. On appeal, the 9th held that the sentence was reasonable under the circumstances, and the court had indeed considered and weighed the 3553 factors...

U.S. v. Orozco-Mesa, No. 09-50192

Posted on May 26, 2010
U.S. v. Orozco-Mesa, No. 09-50192 (5-26-10) (Canby joined by Gould and Ikuta). In a 1326 prosecution, the government introduced a certificate of nonexistence of record (CNR) to show that there was no record that the defendant had sought or had been granted permission to reenter the US...

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