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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: Good Dictum on Victims, Armstead and 2B1.1 Victim Enhancements

Posted on October 19, 2008
Judge Tashima writes for a very good panel, and gives us welcome new rules on identifying "victims" for fraud and theft cases under USSG § 2B1.1. United States v. Armstead, __ F.3d __, 2008 WL 4570608 (9th Cir. Oct. 15, 2008), decision available here...

U.S. v. Armstead, No. 06-30550

Posted on October 17, 2008
U.S. v. Armstead, No. 06-30550 (10-15-08). What about a new TV series called "Loss," where a group of defendants, marooned in federal court, have to confront mysterious numbers of victims as they await sentencing and try to gather restitution? Oh wait, the 9th has already come up with that idea in a series of cases, this being the latest...

Case o' The Week: Right on Cue, Bybee Gets Confrontational

Posted on October 13, 2008
In a very good decision, Judge Bybee explains the application of the Confrontation Clause -- and mulls over the differences between cue balls and pool balls along the way. Slovik v. Yates, __ F.3d __, 2008 WL 4459083 (9th Cir. Oct. 6, 2008), decision available here...

U.S. v. Delgado, No. 07-50238 (10-7-08).

Posted on October 07, 2008
U.S. v. Delgado, No. 07-50238 (10-7-08). "Sometimes the lights all shinin' on me / Other times I can barely see / lately it occurs to me what a long strange trip its been." The Grateful Dead might not have been surprised to discover that Truckin' was commercial, and that commercial trucking is a pervasively regulated industry that supports warrantless searches...

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Case o' The Week: A "Real" Defense Victory, Waknine

Posted on September 20, 2008
A slow week in the Ninth means we can stretch back a bit to the interesting decision of United States v. Waknine, __ F.3d __, 2008 WL 4149666 (9th Cir. Sept. 10, 2008), opinion available here. In this appeal from the Honorable Manuel Real (left), the Ninth Circuit rejects defense complaints that the government did not get a full chance to speak at sentencing...

Hebner v. McGrath, No. 06-16533

Posted on September 19, 2008
Hebner v. McGrath, No. 06-16533 (9-16-08). What does it take for a new argument to relate back to a claim previously filed in habeas? Under the Supremes's decision in Mayle v. Felix, 545 US 644 (2005), the claim has to arise from the operative facts so as to avoid a statute of limitations bar...

U.S. v. Drake, No. 06-10073 (9-15-08).

Posted on September 17, 2008
U.S. v. Drake, No. 06-10073 (9-15-08). The 9th (O'Scannlain) considered whether indictment on local Guam counts but convicted on different charges in federal court violated Speedy Trial rights? The 9th answered "no." The charges were a local Guam robbery and gun counts; the indictment was dismissed and then reindicted, and then transferred to federal court, where he was convicted on Hobbs Act...

Case o' The Week: New Ninth Rule Tolerates Meddling -- er, "Involved" -- Trial Judges, U.S. v. Lopez-Martinez

Posted on September 14, 2008
A pretty good panel gives us a pretty disappointing decision, in United States v. Lopez-Martinez, 2008 WL 4149658 (9th Cir. Sept. 10, 2008), decision available here. In Lopez-Martinez, the Ninth decides -- for the first time -- that a trial court who actively suggests questions to attorneys (read, "AUSAs") doesn't abuse the neutral role of the presiding judge...

U.S. v. Weyharauch, No. 07-30339

Posted on September 11, 2008
U.S. v. Weyharauch, No. 07-30339 (9-8-08). To file an interlocutory appeal from a suppression order, the government has to properly certify that the evidence is material and the appeal is not for delay under 18 USC 3731. The U.S. Attorney has to so certify...

Case o' The Week: Government Uses Trial Acceptance Guideline to Coerce Appeal Waivers, Medina-Beltran and Third "Acceptance" Level

Posted on September 06, 2008
This innocous little case, where one offense level (a handful of months) was at issue, is (respectfully) a leading contender for the worst Ninth Circuit decision of 2008. See United States v. Medina-Beltran, No. 06-10181, 2008 WL 4093611 (9th Cir. Sept...

U.S. v. Bendtzen, No. 07-50249

Posted on September 05, 2008
U.S. v. Bendtzen, No. 07-50249 (9-5-08). The 9th (Wardlaw joined by Ikuta and Fogel) hold that a fake bomb used in a bank robbery can trigger the Guidelines adjustment for brandishing (+3) or use (+4). The Guidelines commentary includes fake weapons, and the focus is on appearing to cause death or serious bodily injury...

Paulino v. Harrison, No. 07-55429

Posted on September 04, 2008
Paulino v. Harrison, No. 07-55429 (9-4-08). The 9th affirms the granting of a petition for a Batson violation. The court had previously remanded for an evidentiary hearing, and the record indicates that the state prosecutor had no recollection now why African-American prospective jurors were struck except that it was not for racial reasons...

U.S. v. Easterday, No. 07-10347

Posted on September 03, 2008
U.S. v. Easterday, No. 07-10347 (8-22-08). The 9th (Schroeder joined by Fairbank, dissent by N. Smith) finds that circuit precedent has been effectively overruled by the Supreme Court. The precedent was U.S. v. Poll, 521 F.2d 329 (9th Cir. 1975), which requires, in a failure to pay payroll tax under 26 USC 7202, that the government prove the defendant could pay taxes, and the defendant could argue, as part of "wilful" failure that he did not have the funds...

Case o' The Week: 9th + § 211 = +16, Becerril-Lopez and Categorical analysis

Posted on August 30, 2008
An order amending a June decision (and, unfortunately, denying rehearing en banc) gives us an opportunity to reach back a bit in this slow August week in the Ninth Circuit. See United States v. Becerril-Lopez, __ F.3d __, 2008 WL 3982507, ord. (9th Cir...

Case o' The Week: Bybee, Redux - Great Fifth Amendment Decision on "Custodial" Interrogation in the Home, Craighead

Posted on August 24, 2008
To the left of Judge Tallman, and to the left of Judge Wallace, is a smiling W. Bush appointee, Judge Jay Bybee.Literally, too.This week's excellent opinion in Craighead means great back-to-back decisions by Judge Bybee, with the Straub immunity case delivered last week...

U.S. v. Jaeger, No. 06-30621 (8-18-08).

Posted on August 22, 2008
U.S. v. Jaeger, No. 06-30621 (8-18-08). Let me not to the marriage of true minds admit impediments, but, said the court, you really should think about the Fifth Amendment consequences. The wife, who was going to testify on defendant's behalf, and who had entered into a plea agreement in the same conspiracy and was awaiting sentencing, then changed her mind...

U.S. v. Straub, No. 07-30182 (8-15-08).We

Posted on August 15, 2008
U.S. v. Straub, No. 07-30182 (8-15-08).We now hold that for a defendant to compel use immunity the defendant must show that:(1) the defense witness's testimony was relevant; and (2) either (a) the prosecution intentionally caused the defense witness to invoke the Fifth Amendment right against self-incrimination with the purpose of distorting the fact-finding process; or (b) the prosecution granted immunity to a government witness in order to obtain that witness's testimony but denied immunity to a defense witness, with the effect of so distorting the fact-finding process that the defendant was denied his due process right to a fundamentally fair trial...

Case o' The Week: Bybee Boosts Immunity, Straub

Posted on August 15, 2008
Judge Bybee (left) gives a big boost to defense immunity in an important decision that elaborates on the Williams test -- permitting the effects of the government's immunity decisions to establish a constitutional violation. See United States v. Straub, 2008 WL 3547541, (Aug...

U.S. v. Goddard, No. 07-50402 (8-11-08).

Posted on August 12, 2008
U.S. v. Goddard, No. 07-50402 (8-11-08). Defendants on SR after a child porn case need to be monitored; but what extent do you monitor the computer monitors? The 9th takes this up, where the conditions absolutely forbade any software change, or upgrade without express approval...

Case o' The Week: The Ten Most Terrifying Words in the English Language: "I'm From the Government and I'm Here to Help You," Garcia-Aguilar

Posted on August 09, 2008
The government developed a sudden concern for defendants' rights to proper plea advisements in Garcia-Aguilar -- and Chief Judge Kozinski ain't buying it. Garcia-Aguilar v. United States District Court for the Southern District of California, 2008 WL 3009680 (9th Cir...

Garcia-Aguilar v. U.S. District

Posted on August 06, 2008
Garcia-Aguilar v. U.S. District Court for So. Calif , et al., No. 07-70293 (8-6-08). The 9th held that the Court must accept unconditional guilty pleas. This is a mandamus with consolidated cases. The defendants were charged with 1326, but the government had not specifically charged that they had been removed after conviction of a felony under 1326(b)(2)...

Case o' The Week: Ruff Case for the Government, Big Sentencing Win for the Defense

Posted on August 02, 2008
In an important decision that has real-world impact for our clients, Judge Fisher (left) emphasizes the discretion of a district court to fashion a sentence that avoids full custodial confinement. See United States v. Ruff, 2008 WL 2940535(9th Cir. Aug...

U.S. v. Ruff, No. 07-30213 (8-1-08).

Posted on August 01, 2008
U.S. v. Ruff, No. 07-30213 (8-1-08). The court sentenced Defendant to a year and a day with recommendations that he serve the sentence in a specific facility to allow work release. The facility, however, could only accept someone if he was on SR. Less than a week later, the court held another hearing and amended its judgment to be one day imprisonment and three years SR, with a condition that he stay at the facility for a year and a day...

U.S. v. Jimenez, No. 07-10399 (7-23-08).

Posted on July 29, 2008
U.S. v. Jimenez, No. 07-10399 (7-23-08). The 9th dialed "T" for drug trafficking when it comes to a prior conviction for unlawful use of communication facility under 21 USC 843(b). The defendant was convicted of a 1326, and given a 16-level enhancement for prior drug trafficking offenses...

Case o' The Week: The Fourth Reappears in Car Searches, Caseres

Posted on July 27, 2008
Did the subject of a warrantless car search have the skill of Houdini and the strength of Hercules? See decision at *20.The Ninth ain't buying it, in a wonderful decision that restores some of the battered Fourth Amendment protections associated with car searches...

U.S. v. Caseres, No. 06-50546 (7-21-08).

Posted on July 22, 2008
U.S. v. Caseres, No. 06-50546 (7-21-08). The 9th drew a line when it comes to car searches. The police were patrolling in an unmarked car when defendant (oops) made a right hand turn without signalling and the police thought that his passenger windows were tinted too dark...

Case o' The Week: Great Miranda Decision Involves No Confession - Miranda-Lopez and Aggravated Identity Theft

Posted on July 20, 2008
In a great decision invoking our beloved "rule of lenity," Judge Silverman holds that the aggravated identity theft statute - 18 USC Section 1028A -- requires proof that the defendant knew that the card used came from a real person. United States v. Miranda-Lopez, __ F...

U.S. v. Gonzalez, No. 06-50461

Posted on July 18, 2008
U.S. v. Gonzalez, No. 06-50461 (7-18-08). The 9th affirmed the convictions of the defendant who, as a police officer, allegedly used his badge and uniform to sexually assault women. Charged federally with acting under color of authority to deprive women of their bodily integrity pursuant to 18 U...

U.S. v. Singh, No. 07-30150 (7-17-08).

Posted on July 17, 2008
U.S. v. Singh, No. 07-30150 (7-17-08). In an alien smuggling case, the defendant was convicted of aiding and abetting a "brings to" the U.S. offense under 8 USC 1324. The defendant argued, under plain error review, that there was insufficient evidence to support the conviction of aiding and abetting bringing an alien to the U...

U.S. v. Whitehead, No. 05-50458

Posted on July 15, 2008
U.S. v. Whitehead, No. 05-50458 (7-14-08). In an appropriate Bastille Day opinion, the 9th (per curiam -- Kozinski and O'Scannlain) affirm a variance sentence. Defendant was accused of pirating one million dollars of DirectTV access. He went to trial and was convicted...

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