US v. Delay, No. 04-50128 (11-7-05). This case turns on whether, for purposes of a crime of violence for career offender status, there is a distinction between an unregistered sawed-off shotgun (which is a crime of violence under Hayes, 7 F.3d 144 (9th Cir. 1993)) and a registered shotgun. The argument misfires though because the 9th unsurprisingly held that there was no distinction, as the fact that it was a sawed off shotgun made it dangerous. All is not lost, though, because the case is remanded under Amerline for resentencing.
US v. Ruiz, No. 04-30516 (11-7-05). This is a consent issue. The police came to a trailer park in search of a certain suspect. They knocked on the door, and a man answered, identified himself as an uncle of the suspect, who had been living in the trailer for a year with the suspect's mother. the suspect wasn't in, but he gave consent to the police to look around,. As it happens, there was the defendant (not the suspect) sleeping on a pull out bed. The police asked him some questions, learned he was a felon, and spied what appeared to be a gun case on the headboard. It was. and there was a firearm. the defendant argued that the uncle couldn't give consent. The 9th said he could: he apparently was living there, and had authority over the premises. Moreover, while there are some constraints on giving permission to search containers, this gun and gun case wasn't hid away.
US v. Velasquez-Reyes, No. 04-30292 (11-8-05). This is a challenge under 1326 to whether second degree arson under Washington State statutes constitutes a crime of violence. It does. The argument was that "knowing and malicious" -- which is the mens rea for the state statute -- is really the same as "willfully and maliciously" which is the federal definition of arson for special jurisdiction, and that the act requires a wilful purpose, which makes it a generic arson. The 9th also holds that the state statute is not overbroad in including personal property extending beyond buildings and dwellings. There is an interstate nexus.
Clemens v. US District Court for the C.D. Ca., No. 05-548 (11-7-05). The defendant allegedly threatened three members of the district court in the Central District of Calif. The court appointed a different FPD office to handle the defense (Fed Defenders of San Diego), who promptly moved to recuse the entire bench of the Central District. The case was referred to a judge from the D. Nev., who denied the motion. the 9th affirmed. The 9th noted this was appropriate for mandamus, and the affirmed. the 9th acknowledged that recusal is appropriate if a the individual judge is threatened, or if the threat was against the bench in general. Here, in a pro per suit, there were three specific judges named and supposedly threatened. Given the size of the Central District (34 judges) and the divisions (3), there were enough black robes to go around. The 9th has the hortatory language about presuming fairness and impartiality even though a brethren is threatened, and that the judges will continue to uphold the independence of the judiciary and not be biased etc.
US v. Ruiz, No. 04-30516 (11-7-05). This is a consent issue. The police came to a trailer park in search of a certain suspect. They knocked on the door, and a man answered, identified himself as an uncle of the suspect, who had been living in the trailer for a year with the suspect's mother. the suspect wasn't in, but he gave consent to the police to look around,. As it happens, there was the defendant (not the suspect) sleeping on a pull out bed. The police asked him some questions, learned he was a felon, and spied what appeared to be a gun case on the headboard. It was. and there was a firearm. the defendant argued that the uncle couldn't give consent. The 9th said he could: he apparently was living there, and had authority over the premises. Moreover, while there are some constraints on giving permission to search containers, this gun and gun case wasn't hid away.
US v. Velasquez-Reyes, No. 04-30292 (11-8-05). This is a challenge under 1326 to whether second degree arson under Washington State statutes constitutes a crime of violence. It does. The argument was that "knowing and malicious" -- which is the mens rea for the state statute -- is really the same as "willfully and maliciously" which is the federal definition of arson for special jurisdiction, and that the act requires a wilful purpose, which makes it a generic arson. The 9th also holds that the state statute is not overbroad in including personal property extending beyond buildings and dwellings. There is an interstate nexus.
Clemens v. US District Court for the C.D. Ca., No. 05-548 (11-7-05). The defendant allegedly threatened three members of the district court in the Central District of Calif. The court appointed a different FPD office to handle the defense (Fed Defenders of San Diego), who promptly moved to recuse the entire bench of the Central District. The case was referred to a judge from the D. Nev., who denied the motion. the 9th affirmed. The 9th noted this was appropriate for mandamus, and the affirmed. the 9th acknowledged that recusal is appropriate if a the individual judge is threatened, or if the threat was against the bench in general. Here, in a pro per suit, there were three specific judges named and supposedly threatened. Given the size of the Central District (34 judges) and the divisions (3), there were enough black robes to go around. The 9th has the hortatory language about presuming fairness and impartiality even though a brethren is threatened, and that the judges will continue to uphold the independence of the judiciary and not be biased etc.
posted by Jon Sands at 11/09/2005 08:08:00 AM
1 Comments:
The blog on Clemens v. US District Court incorrectly states that after a new federal public defender is assigned, the new defender motioned to recuse the court. NOT SO. The court record shows that the old public defender sought and achieved a new appointment of counsel after first filing a motion to recuse herself, the prosecutors, AND the court...the request and granting of a new public defender was done without knowledge of the defendant Clemens and was done before the decision on the original recusal motion. FOUL!!! The 9th opinion ignores the prejudicial statements brought forth and decides an issue NOT before the court, in order to present a false sense of the mandamus motion (appeal), which sought to reverse the decision on the recusal motion. FOUL again!
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