US v. Leal-Cruz, No. 04-50519 (12-9-05). The 9th considers whether requiring the defendant to prove duress is burden-shifting. The circumstances arose from a 1326 illegal reentry case where the defendant argued that he was fleeing from corrupt Mexican police who had beaten him up two weeks previously. The evidence he presented warranted a duress instruction, but did not negate the specific intent of attempted reentry. The standard 9th Cir. instruction, 6.6, placed the burden on the defendant by a preponderance of evidence. The 9th holds that it is not a due process violation. "Duress" does not negate an element of an offense, it offers a legal justification or excuse for the actions. The opinion goes through the various precedents, including holding that duress does not violate due process in a general intent offense of reentry. It is the same even for a specific intent crime, such as attempted reentry.


Edwards v. LaMarque, No. 04-55752 (12-12-05). Perhaps wedding vows should have a discussion of the marital privilege? The 9th affirms the granting of a habeas petition for IAC due to a misunderstanding of the marital privilege. The petitioner and victim joined in an insurance scam involving victim's car. Disagreements followed, and one day the petitioner's wife sees him scrubbing his hands and appearing agitated. The defense theory was that he said he was agitated because the dog messed the carpet. The wife said he confessed to the murder. Oh yes, it was the wife's tip, five years later, that had the police investigate and arrest petitioner. At trial, defense counsel raised in limine an objection to the marital communications. The trial court ruled that the wife could give limited testimony as to the insurance fraud under the "future crimes" exception and about his behavior. She could not testify about any other communications. Defense counsel at trial asked about conversations. The prosecutor objected that it would "open the door" and the defense counsel withdrew the query. When the petitioner took the stand, counsel asked about the conversations with the spouse. The prosecutor objected, and the court told defense counsel he had waive d the privilege. Counsel subsequently, could not provide any authorities about his interpretation of the marital privilege, and appeared confused about the extent. He apparently thought that he could get petitioner to disclose his version, but that the privilege would be applied against the spouse. When the court ruled he had waived the privilege, counsel said that it was clear he was ineffective, and that he made a mistake. The trial hung! (one juror used a racial epitaph and that allegedly made the another juror hold out). New counsel was appointed, who raised the privilege issue, but the court found it had been waived.. There was a conviction at the second trial. On habeas, the district court granted relief, and on appeal, the 9th affirmed. The 9th held that even with AEDPA's deference, the state court determination that it was a strategic decision was unreasonable. The record supports the counsel's confusion over the privilege, and the 9th stated that the questions asked by counsel supported no defense (see note 5). The state court said that if it was wrong, there was prejudice, and so the 9th took him at his word. Thus, the two prongs of Strickland were satisfied: the performance undermined the right to counsel, and it prejudiced the petitioner. In dissent, Rymer argued that the state court judges were not unreasonable in finding some strategy for the decision, perhaps by giving an explanation for the handwashing. (It does seem like a stretch, and Rymer's willingness to embrace the state's finding of strategic reasoning would seem to eviscerate any possible federal IAC so long as a court said there was some reason, no matter how lame or ludicrous).


Valencia v. Gonzales, No. 03-72028 (05-12-05). The 9th considers again the issue of whether sexual intercourse with a person under 18, who was more than three years younger, is a categorical agg felony. The state (Calif) statute does not have an element of force. 18 USC 16 requires a substantial risk of force while a guideline approach has potential risk of force under 4B1.2. A prior 9th Cir. precedent, US v. Granbois, 376 F.3d 993 (9th Cir. 2004) held that such an offense was a crime of violence, focusing on the guideline. The 9th's panel here felt bound by Granbois, and had to follow it, but there was grumbling. In a concurrence, Bea urges the Supremes to take this up, stating that the 7th and 5th Circuits, which found such statutory rape offenses not to categorical crimes of violence, to be much more persuasive. See US v. Thomas, 159 F.3d 296 (7th Cir. 1998); US v. Houston, 364 F.3d 243 (5th Cir. 2004). The reasoning is that absent an element of force, there is no evidence of substantial injury in consensual intercourse if, for example, between a defendant just 20, and a victim just a day shy of 17. It can still be a felony due to age, but the agg nature may be questioned.