US v. Transfiguracion, No. 04-10457 (4-5-06). Defendant entered into a plea agreement then had the legal ground shift under his feet. He grabbed hold of a provision that freed him, but the gov't argued that both parties should return to new ground. The 9th thought not, and affirmed the district court's specific performance. Here, the defendant agreed to plead guilty to an information regarding importation; he also agreed to cooperate, and the gov't agreed not to charge him with conspiracy. He cooperated big time, made the gov't happy, and then learned that the 9th, in US v. Cabaccang, 332 F.3d 622 (9th Cir. 2003)(en banc) held that one can't be convicted of importing for a flight between two domestic cities in the US, even if one flies over international waters (LA to Guam). This case was in Guam. So, defendant moved to get out of the information plea (he hadn't been sentenced yet) and the court agreed. The court also agreed that he couldn't be prosecuted for conspiracy. The gov't argued that there was a mutual mistake of law, and that equities should have the parties return to their original places. The 9th disagreed. The defendant had cooperated, and so performed; the gov't had drafted the plea, and the terms of reinstituting the charge required the defendant to attack the plea terms; here, the defendant and gov't both agreed that the information didn't state a factual basis. The gov't needs to draft better pleas. This opinion has good language about the gov't's superior bargaining position, and that sometimes the strict language of the plea cannot be viewed in contract terms when liberty interests arise. Dissenting, visiting Judge Gibson argues that the gov't tried to foresee a change in circumstances with its language of "if the plea is vacated...." and it is wrong to "move the goalposts."The case brought up what the standard of review is for interpretation of plea agreements. There is a split, with some panels going with abuse because of the intent finding and others with de novo because of the contract/legal aspect.

US v. Garcia-Beltran, No. 05-30434 (4-6-06). The "fingerprints" of unfairness are all over this opinion. Defendant argued on appeal #1 that the prints used to identify him in a 1326 case were taken during an arrest without probable cause and were taken for investigatory purposes. The 9th remanded for an evidentiary hearing to determine what the purpose of taking the prints were. The court found the purpose was investigatory, but also granted a motion by the gov't to take new prints.

"Whoa!," argues defendant, the gov't gets only one bite, and when that fruit comes from the poisonous tree (gag), they can't get a second. "Yes they can," replies the 9th, because identification can never be suppressed, citing the Supremes in Lopez-Mendoza and 9th precedent in Ortiz-Hernandez. The defendant pointed the finger at the 8th Circuit, which reasoned that Lopez-Mendoza's language of a defendant never being able to suppress identity went to the jurisdictional presence before the court -- that is, the defendant cannot suppress his appearance before the court, but evidence wrongly seized or obtained, such as fingerprints, and the fruits of that poison, must be suppressed. There are a couple district courts that so find as well. "Oh well," says the 9th, those are the c ircuit breaks. Moreover, the district court didn't exceed the bounds of the mandate by allowing the gov't to take new prints. Although the defendant won the battle and lost the war, there's fodder for a good cert issue here.

In re Vasquez-Ramirez, No. 04-75715 (4-6-06). All the defendant wanted to do was to plead guilty to a misdemeanor 1325 and a felony 1325. You'd think it would be easy. Follow Rule 11, and get the 30 months (6 and 24). Noooooo, because the district court didn't want the defendant to get this fast-track because of his criminal history, and so first rejected the plea and then rejected the straight-up guilty plea. What's a defendant to do? Take mandamus, of course. The 9th took mandamus because the district court had no power or right not to take a guilty plea. There was no plea agreement to accept or defer. The gov't in prosecutorial discretion could decide that the charges brought (instead of a 1326) were appropriate, and the defendant ran the risk of a future 1326 charge, but those were the shakes. If a defendant wants to plead guilty to charges, straight up, and comports with the Rule 11 colloquy as to knowledge of charge and sentence, so be it.It isn't everyday that AFPDs take on the gov't and the court, and win.

This was one. Congrats to Federal Defenders Steven Hubachek, Chase Scolnick, and Lori Schoenberg of San Diego. 4. US v. Kilby, No. 05-30112 (4-7-06). This is a drug conspiracy case with a troubling structural sentencing resolution. The 9th found there was sufficient evidence to affirm the conviction. The 9th remanded for resentencing because in approximating the quantity of drugs seized (Foxy) was clearly erroneous because the court used the quantities seized in two unrelated cases in different parts of the country as a rough average. While the defendant got a resentencing, the troubling aspect of this case was the 9th cavalierly brushing aside the "beyond a reasonable doubt" standard of proof in sentencing, dismissing the argument by stating that of course the preponderance of evidence standard is used as stated by Booker and Ameline and Dare. The 9th does acknowledge in note 1 that in some cases, clear and convincing is used because of impact. The 9th then states it isn't used in drug quantities. Well, the test in Hopper and DeMeza is a factor test, one of which is the extent of enhancement, and relevant conduct, which can and does come into play with drug quantities. Moreover, the rush to dismiss reasonable doubt is too cursory. That issue was not fully resolved in Booker, which remanded without explicit instructions as to standard of proof, and with some indication that a "reasonable" appellate standard may harken to reasonable doubt. Moreover, asAFPD appellate guru Steve Sady points out, Ameline left the question open and Dare was a Harris mandatory minimum issue. The doctrine of constitutional avoidance (don't run afoul of the sixth amendment if a court can avoid it) allows for those holdings without deciding that reasonable doubt isn't appropriate. It would be too bad if this issue was summarily dealt with a shrug. A case of the court being too near-"cited" with precedent instead of "far-cited" with constitutional rights?