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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

Valdovinos v. McGrath, No. 08-15918

Posted on March 10, 2010
Valdovinos v. McGrath, No. 08-15918 (3-10-10) (B. Fletcher with Kleinfeld and Duffy, D.J.). The petitioner was convicted of first-degree murder for a shooting outside of a San Jose nightclub. Several witnesses identified the petitioner as the shooter...

U.S. v. Arias-Ordonez, No. 08-10259

Posted on March 09, 2010
U.S. v. Arias-Ordonez, No. 08-10259 (3-8-10) (Schroeder with Berzon and Shadur, D.J.). The defendant was mislead and misinformed by the government as to his administrative remedies for a relatively minor misdemeanor offense of possession. As the opinion states:This government appeal arises in the context of an apparently routine prosecution for re-entry after removal under 8 U...

Smith v. Mahoney, No. 94-99003

Posted on March 08, 2010
Smith v. Mahoney, No. 94-99003 (3-5-10) (Thomas joined by McKeown; dissent by B. Fletcher). The petitioner has been on death row since 1984 for a double murder. He turned down a plea agreement that would have resulted in a 17-year actual sentence, and instead chose to plead guilty and ask for death...

Case o' The Week: Ninth Won't "Stand" for Late-Raised Issues (Usually): Fourth Amendment Standing & Reyes-Bosque

Posted on March 07, 2010
The party didn't raise a Fourth Amendment issue in the district court, didn't offer opposing facts or testimony putting the issue in play, and didn't get around to litigating the issue until it finally hit the Ninth Circuit. Waived? Nope. (The party was the government)...

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U.S. v. Reyes-Bosque & Ramirez-Esqueda,

Posted on March 02, 2010
U.S. v. Reyes-Bosque & Ramirez-Esqueda, No. 08-50253; 08-50330 (3-1-10) (Siler joined by Schroeder and Ikuta). The 9th affirms alien smuggling convictions and denials of motions to suppress searches and statements. The case presents interesting discussions of what constitutes "standing" to challenge a search given that defendant Ramirez-Esqueda contended that he was an "overnight guest" in the unit searched...

Case o' The Week: Ninth Won't "Pucker Up to Kiss the Great Writ Goodbye:" Doody, Miranda, and Voluntariness of Confessions

Posted on February 28, 2010
Thanks to the Supremes, Miranda is battered and bruised - with another lousy decision coming out just last week. Thankfully, Miranda protections still having real meaning in the Ninth, as evidenced by an important new en banc decision by Judge Johnnie B...

U.S. v. Garrido, No. 08-10398 (2-25-10)

Posted on February 26, 2010
U.S. v. Garrido, No. 08-10398 (2-25-10) (D. Nelson joined by Farris and Bea). The 9th affirms a conviction for a Hobbs Act robbery and use of a firearm in a game room in Guam. It vacated the sentence and remanded for consideration of acceptance of responsibility...

U.S. v. Other Medicine, No. 09-30020

Posted on February 26, 2010
U.S. v. Other Medicine, No. 09-30020 (2-26-10) (Fisher joined by Paez and Moscowitz). This is an Indian law issue. The defendant was convicted under the Major Crimes Act, 18 USC 1153, for "felony child abuse." The defendant severely beat his 9-year old stepson with a belt, causing contusions, abrasions, and welts that the school nurse said were the worst she had seen in 25 years...

Robinson v. Schriro, No. 05-99007

Posted on February 25, 2010
Robinson v. Schriro, No. 05-99007 (2-22-10) (B. Fletcher joined by Berzon; dissent by Rawlinson). The 9th reversed the district court's denial of petitioner's claims regarding the capital aggravator of cruel, heinous or depraved; and of IAC. The 9th concluded that the aggravator of cruel, heinous, and depraved was arbitrarily found here because no evidence was presented that the petitioner was in the house when the murders took place; nor that he had ordered the murders; nor that he even could have foreseen the murders...

Case o' The Week: Supremes Get Confrontational With Ninth: Norwood and the Confrontation Clause

Posted on February 21, 2010
In 2009, the defense in Norwood argued that an affidavit created by a state-employee for trial, and introduced without her testimony, was testimonial hearsay barred by Crawford and the Confrontation Clause."You're wrong," countered the Ninth. "You're wrong," trumped the Supremes...

U.S. v. Edwards, No. 08-30055 (2-16-10)

Posted on February 17, 2010
U.S. v. Edwards, No. 08-30055 (2-16-10) ( Pregerson joined by M. Smith; dissent by Bea). The defendant reached a bankruptcy settlement, and then was convicted of bankruptcy fraud. The district court sentenced him to probation, despite a prior fraud in Arizona, lots of loss, and a guideline range between 27 and 33 months...

U.S. v. Norwood, No. 08-30050 (2-17-10)

Posted on February 17, 2010
U.S. v. Norwood, No. 08-30050 (2-17-10) (M. Smith joined by Reavley and Tallman).On remand from the Supremes for reconsideration in light of Melendez-Diaz (confrontation), the 9th again affirms the conviction and sentence. Defendant was charged with drug trafficking and possession of a firearm in furtherance of the drug trafficking...

Case o' The Week: Dias Infaustus = Defense Delight, Ressam and 3553 Analysis

Posted on February 14, 2010
Those admirable attorneys (including many JAG officers) who long have argued that different rules for terrorism prosecutions will undermine our entire legal system were right --- and were right in ways that they couldn't have anticipated. In the recent Ressam decision, the Ninth reverses a sentence of twenty-two years for a cooperating attempted-terrorist as "substantively unreasonable...

U.S. v. Vongxay, No. 09-10072 (2-9-10).

Posted on February 09, 2010
U.S. v. Vongxay, No. 09-10072 (2-9-10). Defendant was convicted of being a felon in possession of a firearm in violation of 922(g)(1). He argued that Heller, 128 S. Ct 2783 (2008) invalidates prohibitions against his constitutional right to bear arms...

Case o' The Week: A Sentencing Septimana Infaustus: Terrell-ible Decision on ACCA Residual Clause

Posted on February 07, 2010
Is a prior burglary of a vending machine a "crime of violence" that triggers the draconian mandatory-minimum and guidelines of the Armed Career Criminal Act? It can be in the Ninth, thanks to a very disappointing decision in United States v. Terrell, 2010 WL 347914 (9th Cir...

U.S. v. Treadwell et al, No. 08-50562

Posted on January 29, 2010
U.S. v. Treadwell et al, No. 08-50562 (1-28-10). Defendants ran a Ponzi scheme that resulted in a $40 million loss. Defendants entinced investers to "loan" money to companies that were doing humanitarian projects, salvaging wrecks in the Caribbean, and other good deeds...

Case o' The Week: Treading Well on Fraud Clients - Treadwell, Wire Fraud, and "Intent to Harm"

Posted on January 29, 2010
Last week, the Green case taught us that one can commit wire fraud without breaking any specific state or federal law or regulation. This week, the Ninth explains that one can commit wire fraud without intending to cause any loss to the "victims." See United States v...

U.S. v. Juvenile Male, No. 07-50107

Posted on January 26, 2010
U.S. v. Juvenile Male, No. 07-50107 (1-26-10). Youth is wasted on the young, especially if they should misstate their age. Here, the juvenile was arrested for alien smuggling after a chase. He gave a birthdate that made him 18. The Border Patrol, however, had information that he had given other dates, when he was previously arrested, which made him a minor...

U.S. v. Aguirre-Ganceda, No. 08-35696

Posted on January 25, 2010
U.S. v. Aguirre-Ganceda, No. 08-35696 (1-19-10). The 9th dismisses a 2255 motion as untimely because it was filed more than a year after the Supreme Court denied certiorari. The petitioner argued that the time should start running not from the denial of cert, but from the denial of his subsequent petition for rehearing...

Case o' The Week: It's Not Easy, Being Green - US v. Judy Green, Wire Fraud and Underlying Criminal Activity

Posted on January 24, 2010
As Kermit complained, "It's not easy being green." That's particularly true if you're Judy Green, and are serving a ninety-month sentence for your first offense. The crime?Excellent question.Apparently, says the Ninth, it is a crime to use the wires to commit a fraud (even if you're not breaking a law while you're doing it)...

Case o' The Week: Large Amounts of Fertilizer - Pineda-Moreno and GPS Tracking

Posted on January 16, 2010
Can a cop legally crawl underneath your car, in your private driveway, several feet from your home, in the dead-middle of the night, and install a GPS tracking device with which he'll follow your every move for the next week -- all without a search warrant?Yep, in the Ninth (at least for now)...

U.S. v. Yip, No. 08-10235 (1-13-10).

Posted on January 15, 2010
U.S. v. Yip, No. 08-10235 (1-13-10). Death and taxes may be certain, and when it comes to federal guidelines, add relevant conduct. This was a tax conviction. The defendant had an "off the books" business and failed to report income, or disclose foreign bank accounts...

Case o' The Week: Can't See the Forrester for the Trees - Constitutional Right to Knowingly and Intelligently Reject a Deal

Posted on January 09, 2010
You have a constitutional right to an attorney who doesn't screw-up the description of a plea agreement. You have a constitutional right to be correctly advised of statutory maximum exposures when you make a decision to represent yourself. Do you have a constitutional right to be properly advised of the statutory maximum when you reject a plea agreement? An interesting question, and one that is neatly sidestepped by the Ninth Circuit in the latest iteration of a hard-fought case...

Farrakhan v. Gregoire, No. 06-35669

Posted on January 05, 2010
Farrakhan v. Gregoire, No. 06-35669 (1-5-10). This is a big civil rights/disenfranchisement case. Originally filed in 1996, plaintiffs contended that due to racial discrimination in the State of Washington's criminal justice system, the automatic disenfranchisement of felons resulted in the denial of the right to vote on account of race...

U.S. v. Morales, No. 09-30047 (1-5-10).

Posted on January 05, 2010
U.S. v. Morales, No. 09-30047 (1-5-10). The 9th holds that the district court is without jurisdiction to reduce a supervised release revocation sentence because the guideline range for the original crack offense was reduced. Simply put, lowering the crack guideline does not help lowering the supervised release revocation sentence...

U.S. v. Laurico-Yeno, No. 09-50093

Posted on January 04, 2010
U.S. v. Laurico-Yeno, No. 09-50093 (1-1-4-10). This is another appellate definition of whether a state prior conviction is a categorical crime of violence in the context of a 1326 (illegal reentry after deportation) sentencing. The defendant received a +16 level increase for the state prior conviction of Inflicting Corporal Injury on Spouse/Cohabitant Partner in violation of California Penal Code 273...

Case o' The Week: Anchrum, Anchorage and Experts - Lay and Expert Witness Testimony

Posted on January 03, 2010
Gun a Ford Focus, aim it at a DEA Agent, and hit him as he frantically dives for cover. Any problem with that injured agent testifying at the defendant's trial as a neutral, detached, dispassionate "expert" witness, and answering hypotheticals that mirror the crime charged?"Nah," says the Ninth...

Ford v. Pliler, No. 06-56092 (12-30-09).

Posted on December 30, 2009
Ford v. Pliler, No. 06-56092 (12-30-09). The Supreme Court in Pliler v. Ford, 542 U.S. 225 (2004) held that a court's failure to make clear the repercussion of dismissing a pro se's federal petition to return to state court for exhaustion purposes did not result in equitable tolling of the statute of limitations...

Case o' The Week: A Loss Cause, Berger and the Dura Pharmaceuticals Principle

Posted on December 27, 2009
The slow Christmas week lets us stretch back a bit to catch an important recent case on sentencing loss calculation: United States v. Berger, 587 F.3d 1038 (9th Cir. 2009), decision available here.Players: Decision by Judge M. Smith. Facts: Berger was the President, CEO, and Chairman of the Board of Craig Consumer Electronics, Inc...

Case o' The Week: "Super" En Banc Petition (or More Accurately, a Petition for Super En Banc)

Posted on December 20, 2009
The gaul of the Ninth Circuit: giving us the first appellate decision to deal with the realities of the Information Age, without first obtaining DOJ approval. United States v. Comprehensive Drug Testing, __ F.3d __, 2009 WL 2605378 (9th Cir. Aug. 31 2009) (en banc), decision available here...

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