Smith v. Mitchell, No. 04-55831 (2-9-06). The 9th grants a petition and reverses a state conviction for supposed assault on a child resulting in death. The petitioner was the grandmother, and caregiver, of a premature baby boy. She discovered the child dead, with a little bleeding from a nostril. There were old subdural injuries. The state argued that the grandmother shook the baby so hard that the brain stem sheared and death was instantaneous and that was the reason there was no internal bleeding, bruising, retinal hemorrhages, abrasions, and so forth. The defense expert witnesses described this "cause of death" as "fantasy" and testified that the cause of death was mostly SID: premature baby boys have a higher incidence, they do have bleeding into the brain, and a whole host of other factors. The grandmother had no prior histories of abuse. The 9th held that no rational trier of fact could have found petitioner guilty beyond a reasonable doubt. Absence of evidence is not evidence beyond a reasonable doubt. AEDPA did not bar such a holding, as the state courts unreasonably applied Jackson. Scary case given that a jury somehow convicted, and then the state trial court, state appellate courts, state post-conviction, and a federal magistrate and federal district court all affirmed the conviction. The 9th's panel was Pregerson, Canby and Reed, D.J., with Canby writing.

US v. Lynch, No. 02-30216 (2-10-06)(en banc). In an en banc per curiam decision, the 9th holds that in Hobbs Act jurisdiction can be shown by a direct effect or an individual effect on interstate commerce. In the case of an indirect effect, then the test as developed in Collins, which focuses on the depletion of assets or some other impact. Here, the defendant lured the victim from Nevada to Montana, used a weapon to kill him, stole his vehicle,took his money, used his credit cards, and smoked his dope. There was a direct impact. The en banc court resolved the tension between whether the Collins test had to be used in both cases, and it does not. The defendant argued that law of the case controlled in regards to Collins, or that he should get a new trial with instructions. Tthe 9th found the evidence more than sufficient for a direct impact and that the law of the case doctrine did not apply. The 9th also dealt with other issues.

The most significant, and important, is the sentencing cross reference to murder. The 9th pheld the district court use of the cross reference despite the fact that the jury was not unanimous on whether the defendant was the trigger man in the killing. The district court nonetheless found by clear and convincing evidence that he had participated in the murder and therefore the cross reference applied. The 9th ratified the standard to use as CLEAR AND CONVICING because of the disproportionate impact of the cross reference. From a defense standpoint, this is good, because it is not the across the board preponderance of evidence standard that there were some references to in previous cases. Hopper, 177 F.3d 824 (9th Cir. 1999).

US v. Rutledge, No. 05-10060 (2-14-06). The 9th vacates a preliminary injunction seizing the assets of a nonprofit corporation. The 9th finds that the gov't failed to show that the assets of the corporation were indeed the nefarious proceeds of defendant's supposed mail and wire fraud activities.