One Small Step for Man ... One Giant Step for the Government

US v. Perason, No. 03-30441 (12-14-04). This is a sufficiency of the evidence appeal concerning possession of meth with intent to distribute and use of a firearm. The 9th holds that the evidence, in the light most favorable to the gov't, was sufficient as the defendant sought to purchase meth in order to give it to another (and use it with her). The other person was passive in the transaction, and the defendant was the prime mover. This fact pattern draws the distinction between simultaneously getting drugs and sequential steps. It appears to draw steps in a continuum of action that is artificial. Summary by Jon Sands.

Tribal Sovereignty

US v. Anderson, No. 03-10516 (12-14-04). This involves an Indian jurisdiction issue. The defendant was a tribal chair of a small California Indian tribe. He was charged and convicted of theft and conspiracy to commit theft (kick-backs) from the tribe related to the operation of a casino on the Reservation. On appeal, he argued that California had exclusive criminal jurisdiction under 18 USC 1162 (Public Law 280), which gave states the power to enforce its criminal code in Indian country and divested federal jurisdiction over enclaves and Major Crimes. This did not bar federal jurisdiction over offenses of general jurisdiction, which includes 371 and also tribal theft, since neither has a situs requirement. For those that deal with Indian cases, this is an interesting opinion. - Summary by Jon Sands

Child Abuse as a Crime of Violence under 1326

US v. Lopez-Patino, No. 03-10684 (12-10-04). The 9th again looks at 1326's enhancements and whether Arizona's 1990 child abuse statute qualifies under a categorical test as a crime of violence. The 9th held that the 1990 child abuse statute, Ariz. Rev. Stat. 13-3623(C) did not so qualify categorically because it is overly inclusive and includes acts that could cause a child physical injury without the use of force (cf Leocal v. Ashcroft (drunk driving). The gov't so conceded. However, and unfortunately for defendant, under a modified categorical approach, the charging document, the plea colloquy, and the judgment all indicate violence in spanking the child that caused bruising. This was a crime of violence. Summary by Jon Sands

Lawyer's Confession & Avoidance Not Ineffective

US v. Fredman, No. 03-35808 (12-10-04). The 9th affirms a denial of an IAC claim arising because counsel, at trial, admitted some of the petition's wrongdoing. This is known as the "confession and avoidance" tactic. In this case, there was extensive evidence that the defendant was a conspirator in a meth manufacturing case. He had already plead guilty to a California state meth drug charge. The evidence appeared overwhelming and defense counsel tried to draw the distinction in opening that the petitioner was a California meth cooker, but not involved in this conspiracy. The jury convicted. The 9th held that this tactic was permissible, and was the best that counsel could do. Ferguson, in a concurrence, cautioned that this "confession and avoidance" tactic was something that courts ordinarily don't approve of, but was reasonable here given the evidence. Summary by Jon Sands

Denial of Suppression Vacated & Remanded

US v. Hamilton, No. 03-50179 (12-13-04). The 9th vacates and remands the denial of a suppression motion. This was a prosecution on a large scale drug operation. Defendant and 24 others were charged with possession with intent to distribute. Defendant moved to suppress the 10 kilograms because of a bad stop of his car. At the suppression hearing, there was evidence adduced concerning the defendant and others. After testimony, defendant's counsel asked to leave, and permission was granted because evidence as to his client was over. The hearing continued on another day. with neither the defendant nor counsel present. The testimony covered issues related to the defendant's motion, and the defendant. Indeed, about half of the redirect testimony concerned the defendant. The 9th had no trouble in finding a violation of the "Sixth Amendment right to counsel, because the court permitted the gov't to conduct a redirect examination of the searching officer concerning [the defendant] with neither [the defendant] nor his counsel present." Summary by Jon Sands

AEDPA Limits Challenges to Prison Discipline

Shelby v. Bartlett, No. 03-35847 (12-13-04). The 9th holds that AEDPA's one year statute of limitations period applies to petitions challenging prison administrative disciplinary decisions. The language of 2244 concerning "custody pursuant to the judgment of a State court" covers administrative decisions as well. The 9th joins the 2nd, 4th, and 5th circuits on this issue, but is contrary to the 7th Cir., which distinguished the two in Cox v. McBride, 279F.3d 492 (7th Cir. 2002). The 9th's reasoning is that the plain language of the statute should cover both situations, follows statutory construction, and thatit follows the intent of AEDPA to limit stale litigation. Summary by Jon Sands.

ACCA Enhancement Affirmed

US v. Smith, Case No. 03-30533 (12/03/04). Defendant's sentence enhancement, imposed pursuant to the Armed Career Criminal Act (ACCA), is affirmed over his challenge that the district court improperly relied on statements made at a no contest plea hearing in concluding that he committed a violent felony for purposes of the ACCA.