US v. Resendiz-Ponce, No. 04-10302 (10-11-05). The 9th holds that "failure to allege any specific overt act that is a substantial step toward entry is a fatal defect in an indictment for attempted entry following deportation under 8 USC 1326." (emphasis added). This case dealt with a charge of attempted reentry in which the gov't only alleged "attempted reentry" as the act. Under 9th Cir. precedent, an attempt must have a specific overt act. The 9th didn't buy the gov't argument that the act of attempted reentry was in fact the overt act. The 9th found that more was needed. Because the indictment was insufficient, the conviction was vacated and remanded. In a concurrence, Reavley groused that he was concurring only because of 9th precedent that attempts require an overt act, and attempted reentry was an attempt. His view is that the indictment informed the defendant of the act, and the test should be not the best framed indictment but one that passed constitutional muster .

Congrats to CJA panel layer Atmore Baggot for the win. The reversed judge was EHC.

As a result of the win, the new indictments in attempt cases in the D. Ariz. read as follows:
On or about August 14, 2005, XXX, an alien knowingly and intentionally attempted to enter and did commit overt acts that were a substantial step toward entering the United States of America at or near San Luis in the District of Arizona, to wit: 1) he climbed over the boundary fence and avoided inspection by an immigration officer; and 2) he concealed himself in desert brush so as to evade detection by immigration officers, after having been previously denied admission, excluded, deported, and removed from the United States at or near Hidalgo, Texas, on or about September 16, 2000, and not having obtained the express consent of the Secretary of the Department of Homeland Security to reapply for admission.

US v. Bergeson, No. 04-35312 (10-13-05). . Defendant had a trial date on drug charges set for 9/21. Defense counsel moved for a continuance, which was granted and the trial reset for 10/21/03. Defendant was not in the court for the continuance hearing and failed to appear for trial on that date. The gov't then subpoenaed defense counsel (an AFPD) for the grand jury to tetsify for a charge of bail-jumping regarding whether she had informed defendant of the date.. The district court quashed the subpoena under Rule 17 as "unreasonable or oppressive." Counsel argued that the atty-client relationship and privilege would be breached if forced to testify. The district court held that the gov't had enough other evidence (a letter to defendant and testimony of mother). An interesting issue was whether this is reviewed de novo or for discretion. the gov't argued for de novo, but the 9th found, with the weighing of factors, that discretion was a better standard. The factors considered were proper, which included the atty-client relationship, the quantity and quality of the other evidence, and DOJ's own directives all weigh in favor of quashing. The 9th scoffed at the gov't's argument that there was a distinction between appointed counsel ("not of defendant's choice"!) and retained. The 9th stressed that not every subpoena for counsel would be quashed, but indicated that the test was high and that the gov't better not count on it.

Usually a defense lawyer doesn't want her name in a caption: that usually means bad things. In this case, though, AFPD Bergeson can view the caption as a vindication for the atty-client privilege. Congrats to her for the win.

Moorman v. Schriro, No. 00-99015 (10-13-05). In this capital habeas, the 9th remands for an evidentiary hearing to determine if appellant/PCR counsel was ineffective for failing to raise IAC claims. The facts of this case are lurid, involving the dismemberment of petitioner's mother (while he was on weekend furlough from a life sentence) and a defense that she was forcing him into incest (she was in her mid-70's). There was much disputed mental health evidence involving organic brain damage, pedophilia, anti-social personality, delusions, and competence. The 9th quickly disposed of the aggravating/mitigating claims, finding that there was legal grounds for the aggravators. The case revolved around whether appellant counsel was ineffective for failing to raise IAC claims, and the 9th found indeed that there were grounds that could be ineffective for failure to rise, notably in regards to evidence that his statements were involuntary because of mental illness, mitigation evidence regarding his childhood, a Ring (jury sentencing issue), and issues related to the state statutes. The district court is to see if there was "cause" for this ineffectiveness, and if such prejudice exists, to act on the merits.