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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

U.S. v. Krupa, No. 09-10396 (2-7-11)

Posted on February 07, 2011
U.S. v. Krupa, No. 09-10396 (2-7-11) (Callahan with Wolle, Sr. D.J., S.D. Iowa; dissent by Berzon). Does a single photo of a nude teenager from "www.nude-teens.com" on a computer give rise to probable cause to search a computer? The 9th finds it would, when taken in context of the surroundings -- a distraught mother wondering where her kids were, a house on a military base where the father of the kids is abroad, and the kids in the care of another male adult, with the house in disarray and 15 computers...

Case o' The Week: An Unwelcome Valentine - Smith and Fourth Amendment Seizures

Posted on February 06, 2011
Not a big Valentine fan? Neither are we -- particularly when the Valentine at issue is a bad Third Circuit decision imported into the Ninth, with a "seizure" analysis that erodes Fourth Amendment protections for our indigent clients. United States v...

Stanley v. Cullen, No. 08-99026

Posted on February 03, 2011
Stanley v. Cullen, No. 08-99026 (1-31-11) (W. Fletcher with Tallman and Bybee). In this capital habeas, the petitioner raises issues that revolve around his competency. Was he competent at the time? Should his counsel have raised competency at the guilt phase? Should the court sua sponte have delved into the competency issue? Lastly, was it proper to remand to the state court to determine whether a retrial on competency was proper given the finding of juror misconduct during the state competency trial (separate from the capital trial)...

U.S. v. Munoz-Camarena, No. 09-50088

Posted on February 03, 2011
U.S. v. Munoz-Camarena, No. 09-50088 (1-28-11) (per curiam -- B. Fletcher, Pregerson, Graber). The defendant had three prior California convictions for simple possession. Under Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010), the second or subsequent prior convictions do not qualify as aggravated felonies when the state convictions are not based on the fact of a prior conviction...

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Case o' The Week: Ninth Affirms for Posts on Aptly-Named, "Raging Bull" - Securities Fraud, Jenkins

Posted on January 30, 2011
Does vague internet chatter on a bulletin board called "Raging Bull" rise to the level of a "material misrepresentation" supporting security fraud? Yep (and particularly so when a company board member and stockholder relies on Raging Bull for info on the corporation)...

U.S. v. Liu, No. 09-10136 (1-21-11)

Posted on January 24, 2011
U.S. v. Liu, No. 09-10136 (1-21-11) (Tallman with B. Fletcher and Rawlinson).There are counterfeit bills so good that they can pass undetected through slot machines and cash counting machines in Las Vegas (you see where this is going). These bills, known as supernotes, come from outside the country, possibly North Korea or Russia...

U.S. v. Basher, No. 09-30311 (1-20-11)

Posted on January 24, 2011
U.S. v. Basher, No. 09-30311 (1-20-11) (Mills, Sr. D.J. C.D.Ill with Wardlaw and Gould).If a shot is fired in the woods, does anyone hear? Yes, they do, especially if they are off-duty law enforcement camping on National Forest Land. Add to that an illegal fire, and no wonder the agents decided the next morning to investigate...

Case o' The Week: Not Quite Clooney - Liu and Speedy Trial Act

Posted on January 23, 2011
Dashing men and a beautiful woman hatch a clever conspiracy to successfully steal millions from a Las Vegas casino? The Ninth considers a case with facts just like Ocean's Eleven -- -- except for the "successfully" part. United States v. Liu, 2011 WL 182228 (9th Cir...

Miller v. Oregon Board of Parole,

Posted on January 19, 2011
Miller v. Oregon Board of Parole, No. 07-36086 (1-18-11)(Burns, D.J. S.D. Ca, Paez, Clifton). The 9th holds that state law can indeed create a liberty interest in early eligibility for parole. This extends the 9th's holding in Hayward v. Marshall, 603 F...

Case o' The Week: Mill on the Doss - Witness tampering and "reminding" of testimonial privilges

Posted on January 16, 2011
"I, the bride, take you, the groom, to be my husband, to have and to hold from this day forward, for better or for worse, for richer, for poorer, in sickness and in health, to love and to cherish; from this day forward until death do us part, or until I am charged in a federal indictment and given an opportunity to cooperate against you to save my own skin...

U.S. v. Begay, No. 07-10487 (1-12-11)

Posted on January 12, 2011
U.S. v. Begay, No. 07-10487 (1-12-11) (en banc majority opinion by Clifton; dissent by Reinhardt, Thomas and Berzon). [Ed. note: This case came from the FPD Arizona office]Defendant was convicted of two counts of first-degree murder and two gun counts...

Hayes v. Ayers, No. 07-99014 (1-7-11)

Posted on January 11, 2011
Hayes v. Ayers, No. 07-99014 (1-7-11) (Clifton with Bea; dissent by B. Fletcher).What does it take to get a change of venue? More than extensive press coverage in a small county. The petitioner here was convicted of a double homicide during a drug deal...

U.S. v. Carona, No. 09-50235 (1-6-11)

Posted on January 07, 2011
U.S. v. Carona, No. 09-50235 (1-6-11) (Clifton with Noonan and Bybee). The defendant in this case was the elected sheriff of Orange County, California, until he resigned in 2008 after being indicted on federal charges that included bribery and witness tampering...

Lakey v. Hickman, No. 09-15940

Posted on January 06, 2011
Lakey v. Hickman, No. 09-15940 (1-5-11)(Wallace with Thomas and Mills, Sr. D.J., C.D. Ill.). This is another AEDPA tolling issue. The 9th holds that the petition is untimely and equitable tolling is unavailable. The petitioner filed three state post-conviction challenges before he went to federal court...

U.S. v. Harris, No. 09-50113 (1-4-11)

Posted on January 05, 2011
U.S. v. Harris, No. 09-50113 (1-4-11) (Wallace with Graber and Mills, Sr. D.J., C.D. Ill). This is an issue of waiver of appeal. The defendant was charged with being a prohibited possessor of a firearm. He pled under a plea agreement, where, among other agreements, he stipulated to an enhancement for a crime of violence, and waived his right of appeal...

U.S. v. Chaudry, No. 09-10381 (1-3-11)

Posted on January 04, 2011
U.S. v. Chaudry, No. 09-10381 (1-3-11) (Thomas with Wallace and Mills, Sr. D.J., C.D. Ill). The 9th holds that it lacks jurisdiction to review a district court's decision NOT to impose a provisional sentence until the defendant was competent to be sentenced...

Case o' The Week: Peeples and Pretrial Release for Child Porn Defendants

Posted on January 02, 2011
Litigating in the post-Booker world should have prepared us for the Ninth's three-page, per curiam, New Year's Eve decision in Peeples, where a panel assures us that "mandatory" is really "discretionary," so there's no constitutional worries at all...

U.S. v. Luong, et al., No. 09-10265

Posted on December 29, 2010
U.S. v. Luong, et al., No. 09-10265 (12-29-10) (Wallace with Thomas and Mills, Sr. D.J., C.D. Ill.).This is a second appeal. The first appeal affirmed convictions, but remanded for resentencing because the sentencing was under a mandatory guidelines scheme...

U.S. v. Valverde, No. 09-10063

Posted on December 27, 2010
U.S. v. Valverde, No. 09-10063 (12-27-10) (Reinhardt with Schroeder and Hawkins). The 9th holds that the effective date of the retroactivity provision of SORNA is August 1, 2008, the date on which the provision fulfilled the requirements of APA and publication...

Case o' The Week: Auld Lang Syne -- Times Gone By, Speedy Trial Time and Alvarez-Perez

Posted on December 26, 2010
Auld Lang Syne - Times Gone By, and insufficient Speedy Trial Act exclusions. A great start to a New Year for Mr. Alvarez-Perez -- that is, until the Ninth decides to meddle with the prejudice inquiry before the case even made it back to the district court...

U.S. v. Newhoff, No. 09-30143 (12-16-10)

Posted on December 20, 2010
U.S. v. Newhoff, No. 09-30143 (12-16-10) (Kleinfeld with Tallman and Settle). The jury wants testimony read back. What's a court to do? Well, if the court decides to read back testimony, which is in its discretion, it had better admonish, admonish, and admonish the jury...

Case o' The Week: The Grinch Who Stole Remand - Newhoff and Jury Readbacks

Posted on December 19, 2010
The Ninth is Santa, gifting a defendant with a finding of plain error on a transcript readback before a Montana jury. United States v. Newhoff, 2010 WL 5128262 (9th Cir. Dec. 16, 2010), decision available here. The Ninth is The Grinch, taking back its holiday gift with a finding that the error didn't affect Newhoff's "substantial rights," and refusing to remand for retrial...

Roberts v. Marshall, No. 08-55901

Posted on December 13, 2010
Roberts v. Marshall, No. 08-55901 (12-13-10)(O'Scannlain with Gould and Ikuta). The 9th rules that a district court need not hold an evidentiary hearing regarding the petitioner's competency as to his ability to file a petition, or to avail himself of equitable tolling, when the record already is sufficient to make the determination...

U.S. v. Goyal, No. 08-10436 (12-10-10)

Posted on December 13, 2010
U.S. v. Goyal, No. 08-10436 (12-10-10) (Clifton with Wallace; concurrence by Kozinski). The 9th enters judgments of acquittal on all counts of a securities fraud and false statements convictions. The case involved the chief financial officer of Network Associates Inc (formerly McAfee) who used accounting methods the government alleged were improper...

Case o' The Week: Winning Battles, Losing Wars? Rivera-Gomez and Illegal Reentry Sentencing

Posted on December 12, 2010
Rivera-Gomez won the appellate battle, argues Judge Goodwin, but will lose the sentencing war on remand. United States v. Rivera-Gomez, 2010 Wl 4925446 (9th Cir. Dec. 6, 2010), decision available here.Happily for Mr. Rivera-Gomez, the war isn't over yet -- and there's still plenty of sentencing ammo left...

Bills v. Clark, No. 08-17517 (12-8-10)

Posted on December 08, 2010
Bills v. Clark, No. 08-17517 (12-8-10) (Tymkovich with Hawkins and Fisher). The 9th, in an opinion written by a 10th Circuit judge, importantly finds that mental impairment can justify equitable tolling. As the opinion states: "We conclude equitable tolling is permissible when a petitioner can show a mental impairment so severe that the petitioner was unable to personally either understand the need to timely file or prepare a habeas petition, and that impairment made it impossible under the circumstances to meet the filing requirements despite petitioner's diligence...

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

Posted on December 07, 2010
U.S. v. Lopez-Velasquez, No. 07-30241 (12-7-10) (en banc) (Callahan). The 9th, in an en banc opinion, sets out the duties of an Immigration Judge in informing an alien of the chances of relief. The line the 9th draws is that the IJ has a duty that is limited to informing the alien of a reasonable possibility that the alien is eligible for relief at the time of the hearing...

U.S. v. Rivera-Gomez, No. 08-10480

Posted on December 07, 2010
U.S. v. Rivera-Gomez, No. 08-10480 (12-6-10) (Ikuta with Berzon; concurrence by Goodwin). The 9th clarifies how to count relevant acts designed to further criminal conduct or evade detention in the context of 1326 cases (illegal re-entry). The defendant was here illegally and resisted being arrested (kicking through drywall and hanging from rafters)...

U.S. v. Milovanovic et al., No.

Posted on December 06, 2010
U.S. v. Milovanovic et al., No. 08-30381 (12-3-10) (Kleinfeld with Clifton; dissent by Fernandez). This appeal asks whether "honest services" fraud under the mail fraud statute requires a fiduciary relationship and economic harm to the victim. The majority answers "no...

Case o' The Week: Ninth Dodges Duty, Milovanovic and Honest Services Fraud

Posted on December 05, 2010
What do a Stradivarius, a Colt .45, a Louisville Slugger, and a Cuisinart have in common? They all describe a prosecutor's "true love" - the federal Mail Fraud statute, 18 USC Section 1341. See United States v. Milovanovic, 2010 WL 4910224, *3 & n...

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