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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

Counsel Required For Fair And Efficient Implementation Of The Retroactive Crack Amendment

Posted on April 22, 2008
The first step to fair and efficient implementation of the retroactive amendment to the crack drug quantity guidelines is appointment of counsel, as has occurred in most Districts. Professor Berman reports this morning here that some judges are refusing to appoint counsel for prisoners sentenced for crack crimes, leaving them to litigate for themselves against the Department of Justice?s cramped view of the sentencing judges? discretion under 18 U...

Case o' The Week: Government takes a "crack" at Judge Patel, Grissom

Posted on April 20, 2008
Northern District of California Judge Marilyn H. Patel (right) Did The Right Thing in Grissom: departed downwards from Career Offender guidelines, and focused on crack drug amounts in the count of conviction, instead of the discharged counts, at sentencing...

U.S. v. Reveles-Espinoza, No. 05-50905

Posted on April 17, 2008
U.S. v. Reveles-Espinoza, No. 05-50905 (4-15-08). Defendant cultivated marijuana. The government used this as an aggravated felony to deport him. He came back, was caught, and now argues that cultivation is not an aggravated felony because the state statute (California) lists such things as cultivating, planting, harvesting, drying and processing...

U.S. v. Ibrahim, No. 07-50153 (4-14-08).

Posted on April 14, 2008
U.S. v. Ibrahim, No. 07-50153 (4-14-08). Defendant was convicted of conspiracy in regards to ecstasy. He got 188 mos. in prison, fined $4.5 million, and ordered to pay $4.5 million in restitution. One little hitch in the government's charges against him, which included forfeiture of $489,829...

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U.S. v. Horvath, No. 06-30447 (4-9-08)

Posted on April 14, 2008
U.S. v. Horvath, No. 06-30447 (4-9-08) (order). This is an order denying rehearing en banc. The panel decision reversed a conviction for a material misstatement under 1001 to a probation officer in the PSR. The panel had held it was not material because the probation officer was required under Fed...

U.S. v. Sullivan, No. 06-50710

Posted on April 14, 2008
U.S. v. Sullivan, No. 06-50710 (4-11-08). This white collar case boils down to this: entertainment and retail companies paid the defendants to place and moniter ads in media outlets. The defendants billed the companies, kept the funds for 60+ days and then paid the outlets...

Case o' The Week: Beware of the Swedish Drop, Stringer

Posted on April 05, 2008
Portland Chief District Judge Ancer Haggerty (left) writes a compelling decision detailing how the Oregon United States Attorney's Office abused civil SEC proceedings while it really developed its criminal case, and dismisses the indictment. Great stuff; brims with righteous indignation and a cause for much celebration -- until it was reversed in a very disappointing decision from the Ninth...

U.S. v. Smith, No. 05-50375 (3-31-08).

Posted on April 04, 2008
U.S. v. Smith, No. 05-50375 (3-31-08). Defendant argued that the evidence did not cut both ways because of the jury instruction. The 9th held it did. Defendant was charged with assault with a dangerous weapon. The charge arose from a prison fight...

Case o' The Week: If We Won, Why is He So Happy? Zavala / Carty En Banc

Posted on March 31, 2008
Chief Judge Alex Kozinski (right) loses, but wins; the defense wins, but loses. Over two years after oral argument, an en banc panel of the Ninth Circuit declines to adopt a (formal) appellate presumption of reasonableness for an in-guideline sentence...

U.S. v. Crawford, No. 06-30205

Posted on March 31, 2008
U.S. v. Crawford, No. 06-30205 (3-28-08). The aftermath of Rita, Gall, and Kimbrough is being played out in the 9th. After the en banc in Carty/Zavala held that there was no presumption of reasonableness in a guideline sentence, and after it wiped clean sentencing precedent in its footnotes, the 9th now is going about affirming guideline sentences as, of course, reasonable...

Harvest v. Castro, No. 05-16879

Posted on March 28, 2008
Harvest v. Castro, No. 05-16879 (3-27-09). A district court can modify a conditional grant of a writ, even after the time for its relief has lapsed, but it must be done under Fed R Civ P. 60. Here, the petitioner was granted relief from his first degree murder conviction...

U.S. v. Carty , No. 05-10200 (3-24-08)

Posted on March 25, 2008
U.S. v. Carty , No. 05-10200 (3-24-08) (en banc). In an important en banc decision, the 9th (Rymer) considers whether there should be a presumption of reasonableness for a guidelines sentence in the wake of Rita, Gall, and Kimbrough. Considering the sentencing framework after those cases, the advisory nature of the Guidelines, and the fact that no 3553(e) sentencing factor outweighs any other, the 9th declines to embrace a presumption...

Case o' The Week: Child Porn Conviction in (Double) Jeopardy, Davenport

Posted on March 22, 2008
Judge Gould (right) delivers a doubly-interesting decision for the defense. See United States v. Winston Davenport, __ F.3d __, 2008 WL 732491 (9th Cir. Mar. 20, 2008), decision available here. First, Judge Gould explains that possession of child pornography is a lesser-included offense of receipt of child pornography: it violates Double Jeopardy to be convicted of both...

U.S. v. Rodriguez, No. 07-10217

Posted on March 11, 2008
U.S. v. Rodriguez, No. 07-10217 (3-10-08). "I'm good for [this opinion]. "What does that mean? Lets change it to a response to Miranda warnings, "I'm good for tonight." Is it a waiver? Is it an invocation? It is ambiguous. As such, the police should have clarified rather than keep on questioning the defendant about a gun and silencer found in his car during a DUI stop, and to which defendant eventually admitted ownership...

Case o' The Week: Unto the Breach, Urges Clifton in Cannel

Posted on March 09, 2008
Argue with the prosecutor or P.O., lose your third acceptance point. The rule isn't, thankfully, quite that stark in this plain error case, but that'll be the lesson bad AUSAs will take from it. See United States v. Cannel, __ F.3d __, 2008 WL 553742 (9th Cir...

U.S. v. Mendoza, No. 06-50447 (3-3-08).

Posted on March 05, 2008
U.S. v. Mendoza, No. 06-50447 (3-3-08). The government waited 8 years between indictment and arrest. Although the defendant was in the Philippines for a good part of that time, the government failed to notify him, or make any attempt to contact him about the tax charges...

Case o' The Week: Ninth Makes Up its Mind on Inability to Make Up its Mind, Bradley and Plurality Decisions

Posted on March 01, 2008
Win on one theory, win on two theories -- no matter how you slice it, still a win for the Bay Area's appellate powerhouse Dennis Riordan (left). The Ninth's recent order limiting the holding of a plurality opinion illustrates a trend in the Supremes and Ninth...

U.S. v. Garro, No. 06-50513 (2-28-08).

Posted on February 29, 2008
U.S. v. Garro, No. 06-50513 (2-28-08). Sometimes you have to be shocked by the greed, and not the defendant's. Investers were promised a 100% return on their investments, and then 200%. It was like a hedge fund on steroids. If it seemed too good to be true, it was...

Thoughts On The Watson Concurrence And Statutory Construction

Posted on February 26, 2008
Federal defenders frequently need to brief statutory construction, pushing back against attempts to expand crimes and punishments beyond the words used in statutes and guidelines. Following threads from a recent concurrence, we can benefit from structural hints on how to brief questions of statutory interpretation...

U.S. v. Turvin, No. 06-30551 (2-26-08).

Posted on February 26, 2008
U.S. v. Turvin, No. 06-30551 (2-26-08). For about 14 minutes, it is a lawful traffic stop, and then the police ask an unrelated question: not about the speed limit, but about possible speed in the car. Is this a bad stop? The district court said, "yes," but the 9th (Wallace and Noonan) reverse, holding that asking unrelated questions did not extend the traffic stop unreasonably...

Case o' The Week: Ninth Knocks BOP Rule Denying Year Break for 922(g) RDAP Grads, Arrington

Posted on February 23, 2008
Public Defender Hero and fellow blogger Stephen Sady earns a big victory against the BOP, when the Ninth rejects a rule that denies the one-year reduction for � 922(g) inmates (and others) who successfully complete the 500-hour residential drug treatment program (RDAP)...

Raj v. Daniels, No. 07-35090 (2-20-08).

Posted on February 20, 2008
Raj v. Daniels, No. 07-35090 (2-20-08). The BOP strikes out again in its efforts to restrict early release to certain prisoners who completed a special inmate drug abuse program. The program was for prisoners convicted of non-violent offenses. For 12 years, the BOP tried to exclude inmates who had used or possessed a firearm as being violent...

Case o' The Week: Fifth Lives In Ninth, Anderson

Posted on February 16, 2008
"What about the words 'I plead the Fifth" is unclear, ambiguous, or confusing to a reasonable officer? Nothing."The Honorable M. Margaret McKeown authors a great habeas en banc decision this week, that strongly reaffirms the Fifth Amendment right to counsel -- despite the restrictions of AEDPA...

Harris v. Carter, No. 06-35313

Posted on February 13, 2008
Harris v. Carter, No. 06-35313 (2-8-08). "Come on," says the 9th, "give the petitioner a break when he relied on our precedent in not filing sooner." Petitioner is serving a state LWOP sentence for a murder. He appealed his sentence, and when that became final, filed a timely state petition, and then subsequently untimely ones...

Rogue Footnote Creates Need For Cert To Address Expansion Of Almendarez-Torres

Posted on February 12, 2008
In three Ninth Circuit cases, stare decisis became a dead letter for those advocating that Sixth Amendment rights should apply to the characteristics, sequence, and existence of prior convictions that increase statutory maximums. Defenders have been arguing that the Armed Career Criminal Act must be construed to avoid constitutional doubts regarding pleading and proof that the defendant has qualifying prior convictions and they occurred on ?occasions different from one another...

Case o' The Week: Ninth Categorically Opposed (Sort of) to Expansion of Categorical Analysis, Jennings

Posted on February 10, 2008
An important decision on the categorical/modified categorical analysis reminds us again why we hated to see the Honorable Wallace Tashima take senior status. United States v. Jennings, __ F.3d __, 2008 WL 282366 (9th Cir. Feb. 4, 2008), decision available here...

Ninth Circuit Practitioners: Time To Sign Up For Electronic Notifications

Posted on February 06, 2008
It?s time for all appellate practioners to join the Ninth Circuit as it strides into the 20th Century by taking the first step toward electronic case management and filings. On January 25, 2008, the Clerk?s office provided registration instructions for a new system starting on March 3, 2008, that will provide electronic notification by email ? ?Notice of Docket Activity? ? of any actions the Ninth Circuit takes in your case...

U.S. v. Jennings, No. 06-30190

Posted on February 06, 2008
U.S. v. Jennings, No. 06-30190 (2-4-08). Does the rationale behind the whole categorization of prior convictions "elude" you? Blame Taylor, Shepard, and progeny. Here, defendant was convicted of being a prohibited possessor of a firearm. He has three priors, and was AACA-fied (yes, a new term just coined)...

Case o' The Week: Ninth Falls for Government's Snipe Hunt, New Fourth Rule

Posted on February 03, 2008
Do folks really still fall for the "snipe hunt" gag? The Ninth does here. Judge Bybee creates a new rule -- and a bad one, at that -- for the "emergency" exception to the Fourth Amendment warrant requirement. United States v. Sonny Snipe, __ F.3d __, 2008 WL 216996 (9th Cir...

U.S. v. Snipe, No. 06-30215 (1-28-08).

Posted on January 31, 2008
U.S. v. Snipe, No. 06-30215 (1-28-08). Home decorating/entertainment tips for criminal suspects: if the police pop over for a quick visit, it is not necessarily rude to hide the drugs. Here, the police received a call from a man screaming that he needed emergency help, he was hurt, and then the call was disconnected...

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