US v. Rivera-Guerrero, No. 04-50493 (10-19-05). The 9th (Reinhardt) issues a comprehensive opinion on involuntary medicating an incompetent defendant pretrial. The case of course is controlled by Sell v. US, 539 US 166 (2003) and Washington v. harper, 494 US 210 (1990). The 9th's holding emphasizes that the Harper test (is the defendant dangerous and is it in his medical interests) is preferred over the Sell test of balancing and whether it is in defendant's best medical interests. The court here denied a continuance to defense counsel who sought to rebut gov't experts seeking involuntary medication with various atypical, controversial, and dangerous drugs. The 9th chastised the court for refusing the continuance, and laid great stress on the liberty interests of defendants not to be involuntarily drugged. This is a roadmap for all issues of involuntary medication.

US v. Jose, No. 04-10202 (10-19-05). Defendants were convicted on predicate felonies and felony-murder, all alleged in the same indictment. The felony murder conviction was reversed on appeal, as was the use of a gun count. The defendants then argue that double jeopardy bars retrial because of their convictions on the lesser charges. The 9th rejects this argument, holding that a conviction on the lesser charges, in the same indictment and at the same trial, didn't bar the retrial on the greater charges. The theory is that jeopardy hasn't concluded on that particular charge with an additional element. The 9th comes up with a new procedure for district courts, urging verdict forms on lesser and greater charges, a staying of the lesser if convicted of the greater, but reinstatement if the greater is reversed on appeal. The 9th also urges looking to Congress for intent whether there should be sentences on greater and lesser (ed note: constitutionally that seems suspect). The 9th doesn't answer various questions about this (what if indicted on lessers, but no evidence -- ie first degree and second degree murder charges but with an alibi defense) and seems to have complicated an already complicated procedure. This also might call into question the 9th jury instructions for lessers.

US v. Mays, No. 04-50378 (10-19-05). The 9th holds that the gov't can use garnishment of wages under a criminal case during a term of SR. garnishment is separate from SR, and is authorized under the MVRA statute.