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U.S. v. McTiernan, No. 07-50430 (10-21-08). What is a "fair and just" reason for withdrawing from a plea? Here, it is because the defendant alleges that he was not adequately advised that a key piece of evidence -- a recording -- might be suppressible for violating the wiretap statute. The defendant had plead to a false statement. This case arises from the prosecution of Anthony Pellicano (this was a high profile investigation of Hollywood surreptitious phone recordings). This key evidence was a phone recording made by Pellicano of another's conversation "for a criminal purpose." The defendant, who had accepted a deal, but because of, well, some alleged misstatements, was facing a government recommendation of incarceration, changed counsel before sentencing. The new lawyer moved to have the plea withdrawn because the defendant was not explicitly told about the wiretap statute and the odds of suppresion. The district court denied the motion. The 9th (Miner joined by Reinhardt and Berzon) vacated and remanded for a full evidentiary hearing. The standard to withdraw from a guilty plea is a "fair and just" reason. It is to be liberally construed. The purported reason here, odds of success of suppression, might be such a reason if the defendant was not informed. Previous counsel stated that he told the defendant about the wiretap statute, in general, but the 9th stated that because the declaration had no clarity or precision as to the specific statute or advice, there was a question of adequate informed consent. This is a case that emphasizes the liberality of "fair and just" and requires counsel to fully discuss, and adequately document, his or her discussions as to the plea, and chances of suppression. The fact that the defendant might be guilty, but seeking suppression, is not a bar and should not be considered.

U.S. v. Schales, No. 07-10288 (4-15-08). This was an appeal from several child porn convictions. The 9th rejects broad constitutional and evidentiary challenges, but remands to vacate one of the convictions because of double jeopardy. The defendant was convicted of receiving sexual exploitation of minors under 18 U.S.C. 2252(a)(2) and possessing material involving sexual exploitation of minors under 18 U.S.C. 2252(a)(4)(B). Possession is a lesser included offense of receipt. The court rejected the government's position that downloading and printing the material transformed it and made it a different offense.

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