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Federal Judiciary

Ninth Circuit Blog

Case Summaries and Commentary by Federal Defenders of the Ninth Circuit

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

Case o' The Week: Failed Conspiracy Good Enough for Successful Prosecution, Mincoff

Posted on August 02, 2009
Is a defendant guilty of conspiring to distribute cocaine when he never actually possessed the cocaine - indeed, when the cocaine sought was never actually delivered?Yep. United States v. Mincoff, No. 08-50058, 2009 WL 2342031 (9th Cir. July 31, 2009), decision available here...

Case o' The Week: Unauthorized Search Does Not Compute - Payton, the Fourth Amendment and Computer Searches

Posted on July 26, 2009
We've often bemoaned the irony that the Ninth Circuit is home to so many cutting-edge technologies, yet the Ninth's Fourth Amendment jurisprudence on cyber searches lags years (or decades, or centuries) behind. See, e.g., Giberson blog here.Happily, this week Judge William Canby (above, back row, second from right) gets the Ninth back on track in an admirable new Fourth Amendment decision on computer searches, United States v...

U.S. v. Nobari, et al., No. 06-10465

Posted on July 24, 2009
U.S. v. Nobari, et al., No. 06-10465 (7-24-09). So, in this drug conspiracy case, the 9th finds that the prosecution improperly argued racial stereotypes and ethnic generalizations, appealed to prejudice, and in argument asked the jury to send a message and not let the government down...

U.S. v. Colson, No. 08-10287 (7-23-09).

Posted on July 23, 2009
U.S. v. Colson, No. 08-10287 (7-23-09). In an order, the 9th lowers the boom on Lowe, 136 F.3d 1231 (9th Cir. 1998). In Lowe, the 9th held that a district court's discretionary denial of a 18 U.S.C. 3582(c)(2) sentence reduction motion was unreviewable on appeal...

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U.S. v. Payton, No. 07-10567 (7-21-09).

Posted on July 21, 2009
U.S. v. Payton, No. 07-10567 (7-21-09). Searching the computer under a warrant to search for drugs was outside the scope, and thus child pornography evidence found on the computer must be suppressed. This is an important Fourth Amendment decision in that it recognizes that the search of a computer not expressly authorized is unreasonable...

Case o' The Week: Good win from Goodwin, Fourth Amendment and Hotel Searches, Young

Posted on July 19, 2009
It seems that for our indigent clients, hotel rooms are a frequent important subject of Fourth Amendment litigation (particularly for meth, motels, and Montana). Thankfully, this week Judge Goodwin (left) gives us an important decision that emphasizes the privacy expectations of hotel guests...

U.S. v. Noster, No. 07-50391 (7-15-09).

Posted on July 16, 2009
U.S. v. Noster, No. 07-50391 (7-15-09). Let's start with the dissent first. Written by a district judge sitting by designation, it is a warning against vigilantism, and a rebuke of law enforcement. The dissent acknowledges that the defendant was a bad guy, and that he indeed had stockpiles of pipe bombs and guns...

U.S. v. Young, No. 07-10541 (7-14-09).

Posted on July 14, 2009
U.S. v. Young, No. 07-10541 (7-14-09). One has an expectation of privacy in one's hotel room, even when locked out. The defendant here was suspected of stealing from another guest's room. Security locked him out of his, and when searching his belongings, found a weapon...

Case o' The Week: Not "Must," But Maybe "Can:" State/Federal Sentencing Disparity as Variance Basis, Ringgold

Posted on July 12, 2009
Must a district court consider the huge disparity between the maximum state exposure, and the federal guideline range, for identical conduct? No, explains Judge Thomas in United States v. Arnold Ringgold,__ F.3d __, No. 06-10492, 2009 WL 1927597 (9th Cir...

U.S. v., Gerritsen, No. 06-50552

Posted on July 10, 2009
U.S. v., Gerritsen, No. 06-50552 (7-10-09). Defendant was a "pirate" in the sense of radio broadcasting. He kept interfering with official broadcasts, and when he interrupted a Homeland Security drill, the law came after him. He had other past state convictions, too...

U.S. v. Old Chief, No. 08-30317

Posted on July 08, 2009
U.S. v. Old Chief, No. 08-30317 (7-6-09). In a drunken fight, defendants stabbed a victim. One defendant held the victim, while the other defendant stabbed him three times. Each got 120 months. The interesting issue on appeal was whether an adjustment should have been added for restraint of victim...

Case o' The Week: "During" means "During" . . . Unless "During" an Illegal Reentry Offense - Cruz-Gramajo

Posted on July 04, 2009
"During" means a temporal relationship, when an event takes place while something else is going on -- unless you're an alien charged with illegal reentry. United States v. Cruz-Gramajo,__ F.3d __, No. 07-50381, 2009 WL 1813336 (9th Cir. June 26, 2009) (decision available here)...

Bible v. Ryan, No. 07-99017 (7-1-09).

Posted on July 02, 2009
Bible v. Ryan, No. 07-99017 (7-1-09). The 9th (Gould joined by Clifton and Bybee) affirm the district court's denial of relief in this capital habeas. The 9th finds no IAC at the sentencing stage. The 9th stresses the nature of the crime (a child murder in a "heinious" fashion), and the speculative nature of the mitigation...

Case o' The Week: Tran's-mission Not Clear, Says Ninth in Conspiracy Case

Posted on June 29, 2009
"Conspiracy is the darling of the prosecutor's nursery." Thankfully, the Hon. H.P. brings some well-deserved discipline to the little brat. United States v. Tran__ F.3d __, No. 07-30270, 2009 WL 1773149 (9th Cir. June 24, 2009) (decision available here)...

U.S. v. Garcia-Hernandez, No. 08-50190

Posted on June 29, 2009
U.S. v. Garcia-Hernandez, No. 08-50190 (6-25-09). The 9th (Ikuta joined by Kleinfeld and Bea) affirm a conviction for 1326 against a challenge for insufficiency of the indictment and admission of the statement. The indictment failed to allege the prior felony conviction...

U.S. vs. Tran, No. 07-30270 (6-24-09).

Posted on June 25, 2009
U.S. vs. Tran, No. 07-30270 (6-24-09). Conspiracy, the fair-haired and frankly spoiled child of the prosecutors' nursery, received welcomed discipline by the 9th. In an opinion by Pregerson joined by Canby, the 9th looked at the evidence of a marijuana conspiracy and possession with intent...

U.S. vs. Lopez-Velasquez, No. 07-30241

Posted on June 24, 2009
U.S. vs. Lopez-Velasquez, No. 07-30241 (6-23-09). The defendant was charged with 1326. He had been deported in 1994 but had not been informed of 212(c) discretionary relief. If he had been so informed, the district court believed he would not have waived his appeal because he had strong equities, including a citizen wife, and two citizen children...

Holley v. Yarborough, No. 08-15104

Posted on June 22, 2009
Holley v. Yarborough, No. 08-15104 (6-16-09). The 9th issues habeas relief to a petitioner, vacating convictions for lewd acts with children. The 9th (Smith joined by Kleinfeld and T. Nelson) hold that petitioner's Sixth Amendment rights to confrontation were violated when the court prevented cross examination about a child's (11 years old) prior statements regarding sex and about how others had made sexual advances toward her...

Case o' The Week: Lacivious Is as Lacivious Does, Overton and Child Pornography

Posted on June 20, 2009
"Bad facts make bad law," the chestnut goes. Pretty grim facts in this child porn case certainly don't help in an opinion that spawns a bevvy of new holdings in the field. United States v. Overton, __ F.3d __, No. 08-30075, 2009 WL 1694228 (9th Cir. June 18, 2009), decision available here...

Case o' The Week: Fond Adieu, Rule 32 -- Cruz-Perez and Notice Before Above-Guideline Sentences

Posted on June 15, 2009
Notice anything odd about a district court doubling a guideline sentence without advance warning to the defense, or a continuance of the sentencing hearing? Judge Tallman doesn't (right), in United States v. Cruz-Perez__ F.3d __, No. 06-30343, 2009 WL 1607897 (9th Cir...

Nijhawan: Sixth Amendment Non-Event Based On Government Concession?

Posted on June 15, 2009
The Supreme Court in Nijhawan held that ?aggravated felony? for civil immigration purposes includes statutes with ?circumstance-specific? characteristics, as opposed to statutes strictly defined by categorical elements. Because ?aggravated felony? has significance for immigration crimes, we need to be aware of the decision...

U.S. v. Cruz-Perez, No. 06-30343

Posted on June 11, 2009
U.S. v. Cruz-Perez, No. 06-30343 (6-10-09). The court said that the sentence was going to be high, so what further notice do you need. That's the gist of this opinion authored by Tallman and joined by Beezer and M. Smith. The defendant plead to a 1326 charge...

Case o' The Week: Prior Too Old is Sentencing Gold, United States v. Amezcua-Vasquez

Posted on June 08, 2009
A great decision by Judge William Canby (right) reverses an illegal reentry sentence as substantively unreasonable. United States v. Amezcua-Vasquez,__ F.3d __, No. 07-50239, 2009 WL 1508566 (9th Cir. June 1, 2009), decision available here.Players: Big victory by San Diego Assistant Federal Public Defender Janet Tung...

U.S. vs. Ensminger, No. 08-30183

Posted on June 04, 2009
U.S. vs. Ensminger, No. 08-30183 (6-3-09). Defendant plead guilty to a sex offender registration (SORNA) charge. As sentencing approached, a district court in the M.D. Fla held that SORNA was unconstitutional because it was outside of congressional commerce clause authority...

Scott v. Schriro, No. 05-99012

Posted on June 03, 2009
Scott v. Schriro, No. 05-99012 (6-2-09). The 9th (per curiam -- Kozinski, Farris and Bea) holds that petitioner's IAC claims were not procedurally defaulted and were in fact exhausted. Petitioner had been convicted of being an accessory in a child murder...

U.S. v. Amezcua-Vasquez, No. 07-50239

Posted on June 01, 2009
U.S. v. Amezcua-Vasquez, No. 07-50239 (6-1-09). In an important sentencing decision, the 9th (Canby joined by Kleinfeld and Bybee) holds that the defendant's sentence for an illegal re-entry after deportation and enhanced by an aggravated felony was substantively unreasonable...

Case o' The Week: Key Date Is "Found In" Plea Agreement, Not in Case Facts -- Lomeli-Mences & Illegal Reentry Sentencing

Posted on May 31, 2009
An undocumented alien is found by ICE agents in August of 2006. They promptly slap an immigration detainer on him. When was the alien "found in" the United States for the illegal reentry prosecution? April 2007, of course. United States v. Lomeli-Mences,__ F...

U.S. v. Medina-Villa, No. 07-50396

Posted on May 29, 2009
U.S. v. Medina-Villa, No. 07-50396 (5-28-09). The 9th (Wardlaw joined by Pregerson and Graber) holds that California's penal code section 288(a) -- lewd and lascivious acts on a child under 14 -- is a crime of violence for aggravated felony purposes in 2L1...

U.S. v. Jefferson, No. 08-30067

Posted on May 28, 2009
U.S. v. Jefferson, No. 08-30067 (5-26-09). The 4th amendment does not protect early delivery of mail. What is meant by that? Well, the defendant was expecting a postal package guaranteed to be delivered by 3:00 on April 7th. The package came in to the post office that morning, and the postal inspector was waiting for it...

Case o' The Week: The Price is Right --Discovery of Brady Materials in U.S. v. Price

Posted on May 25, 2009
Judge Stephen Reinhardt (right) delivers a remarkable Brady decision in United States v. Price, __ F.3d __, No. 05-30323, 2009 WL 1408117 (9th Cir. May 21, 2009), decision available here.Players: Decision by Judge Reinhardt, joined by Judges Goodwin and Pregerson...

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