US v. Novak, No. 04-55838 (3-23-06). For every statutory construction canon, there is an equally compelling canon asserting the opposite. This comes into play where the 9th finds that the Mandatory Victim Restitution Act (MVRA) trumps the anti-alienation provision in ERISA, and permits garnishment of pension. The 9th recognizes that the Supremes in Guidry and the 9th in Jackson had recognized that ERISA permits no garnishment unless specifically directed by Congress. The 9th finds though that the MVRA, with language that its provisions won't be trumped by other statutes, trumped ERISA's antialienation. There are broad social policy reasons, and the 9th places the MVRA on the same level as tax collection under IRS. Jackson, a prior precedent, had failed to mention or note the MVRA, and so the 9th sidesteps its prohibition against garnishment for restitution. Dissenting, B. Fletcher argues that a general statement of "no exception" in MVRA does not trump the specific language of ERISA, where the Supremes had indicated that no garnishment takes place unless Congress makes it abundantly clear. This wasn't done here. Moreover, Jackson sets a broad rule against garnishment, and this panel can't just excuse it by stating that it failed to note the MVRA.
US v. Ligon, No. 04-10495 (3-21-06). This is a theft of gov't property, where the gov't forgot to prove "market value." The defendant was charged with taking Native American petroglyphs. He had them in his front yard, admitted he took them without permission, in the dark of night, and did so to "save" them from destruction by possible construction going on near the gov't land. the gov't charged removing archeological resources under 16 USC 470ee, and as a throwaway, theft of gov't property under 18 USC 641. The gov't submitted evidence as to their archeological value, but didn't submit evidence as to their market value. The jury acquitted on the archeological count, and convicted on the theft count. The 9th reversed, because the archeological value is not the same, and cannot be transferred, to the market value required under 641. That section requires a commercial value, even in an illegal market, or something similar. the 9th recognizes that the guidelines cross-reference archeological value, and use that in the setting of a penalty, but it can't trump the statute.
US v. Williams, No. 05-30071 (3-21-06). This is a sad case. The defendant was a financial advisor who took advantage of an unsophisticated improvised sheepherder who got an inheritance. The defendant had the victim sign a power of attorney, transferred funds, and the defendant ended up in a condo in Belize. he eventually was charged, and convicted. On appeal, he argues that under mail and wire fraud, 18 USC 1341 and 1343, the "intangible rights" theory of good gov't or good services does not apply to private sector fraud. This draws support from the Mcnally line of cases. the 9th holds though that where there is some sort of duty, and here there was a fiduciary one, then the "intangible rights" theory applies to private sector fraud.
The 9th joins several other circuits that have so held. the key is that intangible rights to good service requires some sort of fiduciary duty. The 9th found the other argument challenging the foreign transportation of money not convincing, holding that causing money to be transported is good enough. the 9th also affirmed the sentence against challenges.3. US v. Ropdriguez-Rodriguez, No. 05-50202 (3-11-06). the 9th affirms a sentence as reasonable in a 1326 case.
the defendant here had a compelling reason to return (a badly injured son), but also bad facts, such as a lengthy criminal record. The district court didn't apply cultural assimilation and seemed to doubt the dependant's statement that he would stay in Mexico. The 9th took each factor separately, and found them reasonable. The framework was to look at the guidelines and the 3553 factors, which is an approach that makes sense, and employs the post-Booker attention to 3553. He also challenges the standard reporting requirement that he notify the P.O. within 72 hours after release for supervision under SR. He stated that this violates his 5th amend. privilege. Not so, says the 9th. On its face, the reporting requirement doesn't violate the 5th because the defendant can always refuse to answer. the mere showing up isn't a violation.
US v. Williamson, No. 05-30150 (3-13-06). This is another computer search case. The agents found 19 pornographic child photographs that could be traced back to the defendant. They got a search warrant, but failed to serve it on defendant or his mother (he was 50 years old at the time). The 9th found the failure to serve a violation of fed. R. Crim. P. 41, but since there was no prejudice, nor was it deliberate, suppression was not called for. The 9th also determined that there was probable cause for the warrant, and the fact that the warrant named imaged of "minor" children excluded virtual visual images. In the sentencing context, the court went to the stat max of 180 mos. The 9th found that "pattern of activity" expanded relevant conduct under 2G2.2, and note 1, and could be used for sentencing under 1B1.3. The 9th thus joined the 8th and 11th Circuits. The 9th found too that the age enhancements were for the photos found in Croatia, and not for other son the computer in his home. lastly, the sentence was reasonable because the court considered the various 3553 factors, and the factor sin this case (abuse of other family members, safety of the community etc). The analysis was a listing of that factors involved, and then the conclusion.
US v. Griffin, No. 05-50299 (3-16-06). A lawyer got love letters from jail. Thatw wasn't unusual because the lawyer was the wife of the inmate, an alleged Aryan Brotherhood hood member. The gov't seized the letters from her home pursuant to a search h warrant. The court turned them over to a special master, who redacted the attorney-client portions. The court then ordered their disclosure to the gov't. The defendant objected on the basis of marital privilege, was denied, and this special action followed. The 9th took jurisdiction, finding that this was one of the small special classes of cases where interlocutory review was necessary because the harm would occur with the release, and could not be remedied on appeal. In addition, under the Perlam doctrine, this was also reviewable because a disinterested 3rd party was ordered to disclose (the special master) and so the interests were represented best by the defendant. Turning to the merits, the 9th (W. Flecther) discussed the scope the privilege, and of course the intent. The gov't had argued that the privilege could only be asserted in a judicial or grand jury proceeding. the 9th avoided that whole distinction, noting that the letters were sent in an envelope marked "Atty-Client." The correspondence that was not legal was improperly sent. because there is no protection for letters sent to spouses from prison (all correspondence can be read except legal), then there was no expectation of marital protection. The privilege would not extend to this improperly sent mail.
US v. Perlaza, No. 02-50084 (3-14-06). The 9th explores the Maritime Drug Law Enforcement Act (MDLEA), 46 App. USC 1903 for jurisdiction and some prosecutorial misconduct. The jurisdictional issue is whether the finding that a boat is stateless or whether there is a nexus to the United States is one for the jury when there are facts in dispute. In this case, a trawler was off the coast of Mexico and 500 miles from the US. A speed boat was around it. The speed boat purposely rammed into the larger ship in an effort to scuttle the boat and hide evidence of cocaine. The assumption was that the trawler was used as a supply ship for cocaine runs into Mexico. The district court ruled that the jurisdiction issue was a judicial matter, that the speed boat was stateless (hence US jurisdiction) and that the trawler was aiding and abetting the speed boat. The 9th takes up the issue of jurisdiction after tacking around it in several other cases. It ruled that the facts that went into jurisdiction as for a jury decision, and once the facts were found, such as where the boat was or whether it was stateless, then the court could decide the legal issue of jurisdiction or nexus. The convictions were reversed. Interestingly, another issue raised was prosecutorial misconduct. The prosecutor argued to the jury that once it went back to deliberate, it could presume guilt because of the facts. The defendants objected. The court pooh-poohed the objection, although it later gave a bland curative instruction restating the presumption of innocent. The 9th found this to be error. The presumption of evidence remains during deliberation, and only is only overcome when there is evidence to prove guilt beyond a reasonable doubt. The curative didn't cut it.Brunetti dissented. He would uphold the convictions because the court had enough evidence to find that the boats were stateless, and that the error in argument was harmless.
Buckley v. Terhune, No. 03-55045 (3-17-06)(en banc). In an en banc decision, the 9th considers a state plea agreement. The plea had ambiguous language as to whether the petitioner would get 15 years, or whether it was 15 years to life. The written plea could be construed as being 15 years, and that was what the colloquy seemed to indicate, and what the petitioner signed. Other answers, especially at his cooperating testimony, indicated it was 15 to life. The 9th (Reinhardt) looked to state contract rules of construction, and the written contract, which is the plea, would be construed against the drafter (here the state). The 15 year determinative sentence may be illegal under the indeterminative sentencing scheme, but that is the state's problem, and not the petitioner, who completed his performance with the truthful testimony. The petitioner was ordered release. Callahan (joined by Tallman) dissented. The dissent would not confine its analysis to the four corners, but under state law look at the parties' intent as well. The intent here would be 15 to life. The dissent would also pay heed to AEDPA's deference to state findings of fact.
US v. Aukai. No. 04-10226 (3-17-06). This involves a secondary search after passing through a metal detector with inconclusive results. The defendant was sin a hurry to catch a flight. he didn't show ID at the ticket counter (oops), and his boarding pass was so stamped "No ID." He went through the metal detector without incident, but because of the stamp for no ID, he was routed to secondary. Defendant wanted to leave but was not allowed to. He was given a pass by the wand, passed that, but there was a lump noted in his pocket. Eventually it was found to be a pipe, and the defendant admitted he had some meth. He moved to suppress, lost in the district court, and appealed. the 9th (Bea) upheld the search. The 9th found no right to leave the metal detector/secondary search after one had consented to go through the metal detector and was routed to secondary because of the "No ID" stamp. The defendant had irrevocably consented to such a search by going through the initial screening with inconclusive results, defined as not definitively ruling out weapons. The 9th does not decide whether this would apply to a subjective test. This is a through opinion, that cites and discusses the various precedent, and the strains of the cases. In this age of security, once one passes through the security portal, one cannot go home again.6. Clark v. Brown, No. 02-99007 (3-17-06). The 9th grants sentencing relief to a capital petitioner because the California Supreme Court violated due process and Bouie in expanding the felony-murder special circumstance (Green) after the petitioner had relied upon it. The petitioner was a mentally disturbed man who decided to punish his therapist for discontinuing counseling by shooting her husband before her eyes. To accomplish this cruel act, he started a fire in their house to drive them out. The husband died from burns, the therapist suffered injuries, but her child was rescued uninjured. Under state law, a special circumstance for felony murder was that the felony was committed incidentally to the murder; that is, it was committed to achieve the murder. This was a narrowing principle.
On appeal here, the state supreme court broadened the state law (Green) so that the felony could be independent or concurrent to the murder. This was a substantial reinterpretation. Under the interpretation, it was the state prosecutor's version of the offense, that the arson was to murder the family, that would acquit the petitioner. To make matters worse, the court had failed to give the petitioner a Green instruction. The 9th held that the failure to so instruct on Green was prejudicial error, and that the radical reinterpretation of Green failed to give fair notice, could not be retroactive, and violated due process (Bouie).
US v. Ligon, No. 04-10495 (3-21-06). This is a theft of gov't property, where the gov't forgot to prove "market value." The defendant was charged with taking Native American petroglyphs. He had them in his front yard, admitted he took them without permission, in the dark of night, and did so to "save" them from destruction by possible construction going on near the gov't land. the gov't charged removing archeological resources under 16 USC 470ee, and as a throwaway, theft of gov't property under 18 USC 641. The gov't submitted evidence as to their archeological value, but didn't submit evidence as to their market value. The jury acquitted on the archeological count, and convicted on the theft count. The 9th reversed, because the archeological value is not the same, and cannot be transferred, to the market value required under 641. That section requires a commercial value, even in an illegal market, or something similar. the 9th recognizes that the guidelines cross-reference archeological value, and use that in the setting of a penalty, but it can't trump the statute.
US v. Williams, No. 05-30071 (3-21-06). This is a sad case. The defendant was a financial advisor who took advantage of an unsophisticated improvised sheepherder who got an inheritance. The defendant had the victim sign a power of attorney, transferred funds, and the defendant ended up in a condo in Belize. he eventually was charged, and convicted. On appeal, he argues that under mail and wire fraud, 18 USC 1341 and 1343, the "intangible rights" theory of good gov't or good services does not apply to private sector fraud. This draws support from the Mcnally line of cases. the 9th holds though that where there is some sort of duty, and here there was a fiduciary one, then the "intangible rights" theory applies to private sector fraud.
The 9th joins several other circuits that have so held. the key is that intangible rights to good service requires some sort of fiduciary duty. The 9th found the other argument challenging the foreign transportation of money not convincing, holding that causing money to be transported is good enough. the 9th also affirmed the sentence against challenges.3. US v. Ropdriguez-Rodriguez, No. 05-50202 (3-11-06). the 9th affirms a sentence as reasonable in a 1326 case.
the defendant here had a compelling reason to return (a badly injured son), but also bad facts, such as a lengthy criminal record. The district court didn't apply cultural assimilation and seemed to doubt the dependant's statement that he would stay in Mexico. The 9th took each factor separately, and found them reasonable. The framework was to look at the guidelines and the 3553 factors, which is an approach that makes sense, and employs the post-Booker attention to 3553. He also challenges the standard reporting requirement that he notify the P.O. within 72 hours after release for supervision under SR. He stated that this violates his 5th amend. privilege. Not so, says the 9th. On its face, the reporting requirement doesn't violate the 5th because the defendant can always refuse to answer. the mere showing up isn't a violation.
US v. Williamson, No. 05-30150 (3-13-06). This is another computer search case. The agents found 19 pornographic child photographs that could be traced back to the defendant. They got a search warrant, but failed to serve it on defendant or his mother (he was 50 years old at the time). The 9th found the failure to serve a violation of fed. R. Crim. P. 41, but since there was no prejudice, nor was it deliberate, suppression was not called for. The 9th also determined that there was probable cause for the warrant, and the fact that the warrant named imaged of "minor" children excluded virtual visual images. In the sentencing context, the court went to the stat max of 180 mos. The 9th found that "pattern of activity" expanded relevant conduct under 2G2.2, and note 1, and could be used for sentencing under 1B1.3. The 9th thus joined the 8th and 11th Circuits. The 9th found too that the age enhancements were for the photos found in Croatia, and not for other son the computer in his home. lastly, the sentence was reasonable because the court considered the various 3553 factors, and the factor sin this case (abuse of other family members, safety of the community etc). The analysis was a listing of that factors involved, and then the conclusion.
US v. Griffin, No. 05-50299 (3-16-06). A lawyer got love letters from jail. Thatw wasn't unusual because the lawyer was the wife of the inmate, an alleged Aryan Brotherhood hood member. The gov't seized the letters from her home pursuant to a search h warrant. The court turned them over to a special master, who redacted the attorney-client portions. The court then ordered their disclosure to the gov't. The defendant objected on the basis of marital privilege, was denied, and this special action followed. The 9th took jurisdiction, finding that this was one of the small special classes of cases where interlocutory review was necessary because the harm would occur with the release, and could not be remedied on appeal. In addition, under the Perlam doctrine, this was also reviewable because a disinterested 3rd party was ordered to disclose (the special master) and so the interests were represented best by the defendant. Turning to the merits, the 9th (W. Flecther) discussed the scope the privilege, and of course the intent. The gov't had argued that the privilege could only be asserted in a judicial or grand jury proceeding. the 9th avoided that whole distinction, noting that the letters were sent in an envelope marked "Atty-Client." The correspondence that was not legal was improperly sent. because there is no protection for letters sent to spouses from prison (all correspondence can be read except legal), then there was no expectation of marital protection. The privilege would not extend to this improperly sent mail.
US v. Perlaza, No. 02-50084 (3-14-06). The 9th explores the Maritime Drug Law Enforcement Act (MDLEA), 46 App. USC 1903 for jurisdiction and some prosecutorial misconduct. The jurisdictional issue is whether the finding that a boat is stateless or whether there is a nexus to the United States is one for the jury when there are facts in dispute. In this case, a trawler was off the coast of Mexico and 500 miles from the US. A speed boat was around it. The speed boat purposely rammed into the larger ship in an effort to scuttle the boat and hide evidence of cocaine. The assumption was that the trawler was used as a supply ship for cocaine runs into Mexico. The district court ruled that the jurisdiction issue was a judicial matter, that the speed boat was stateless (hence US jurisdiction) and that the trawler was aiding and abetting the speed boat. The 9th takes up the issue of jurisdiction after tacking around it in several other cases. It ruled that the facts that went into jurisdiction as for a jury decision, and once the facts were found, such as where the boat was or whether it was stateless, then the court could decide the legal issue of jurisdiction or nexus. The convictions were reversed. Interestingly, another issue raised was prosecutorial misconduct. The prosecutor argued to the jury that once it went back to deliberate, it could presume guilt because of the facts. The defendants objected. The court pooh-poohed the objection, although it later gave a bland curative instruction restating the presumption of innocent. The 9th found this to be error. The presumption of evidence remains during deliberation, and only is only overcome when there is evidence to prove guilt beyond a reasonable doubt. The curative didn't cut it.Brunetti dissented. He would uphold the convictions because the court had enough evidence to find that the boats were stateless, and that the error in argument was harmless.
Buckley v. Terhune, No. 03-55045 (3-17-06)(en banc). In an en banc decision, the 9th considers a state plea agreement. The plea had ambiguous language as to whether the petitioner would get 15 years, or whether it was 15 years to life. The written plea could be construed as being 15 years, and that was what the colloquy seemed to indicate, and what the petitioner signed. Other answers, especially at his cooperating testimony, indicated it was 15 to life. The 9th (Reinhardt) looked to state contract rules of construction, and the written contract, which is the plea, would be construed against the drafter (here the state). The 15 year determinative sentence may be illegal under the indeterminative sentencing scheme, but that is the state's problem, and not the petitioner, who completed his performance with the truthful testimony. The petitioner was ordered release. Callahan (joined by Tallman) dissented. The dissent would not confine its analysis to the four corners, but under state law look at the parties' intent as well. The intent here would be 15 to life. The dissent would also pay heed to AEDPA's deference to state findings of fact.
US v. Aukai. No. 04-10226 (3-17-06). This involves a secondary search after passing through a metal detector with inconclusive results. The defendant was sin a hurry to catch a flight. he didn't show ID at the ticket counter (oops), and his boarding pass was so stamped "No ID." He went through the metal detector without incident, but because of the stamp for no ID, he was routed to secondary. Defendant wanted to leave but was not allowed to. He was given a pass by the wand, passed that, but there was a lump noted in his pocket. Eventually it was found to be a pipe, and the defendant admitted he had some meth. He moved to suppress, lost in the district court, and appealed. the 9th (Bea) upheld the search. The 9th found no right to leave the metal detector/secondary search after one had consented to go through the metal detector and was routed to secondary because of the "No ID" stamp. The defendant had irrevocably consented to such a search by going through the initial screening with inconclusive results, defined as not definitively ruling out weapons. The 9th does not decide whether this would apply to a subjective test. This is a through opinion, that cites and discusses the various precedent, and the strains of the cases. In this age of security, once one passes through the security portal, one cannot go home again.6. Clark v. Brown, No. 02-99007 (3-17-06). The 9th grants sentencing relief to a capital petitioner because the California Supreme Court violated due process and Bouie in expanding the felony-murder special circumstance (Green) after the petitioner had relied upon it. The petitioner was a mentally disturbed man who decided to punish his therapist for discontinuing counseling by shooting her husband before her eyes. To accomplish this cruel act, he started a fire in their house to drive them out. The husband died from burns, the therapist suffered injuries, but her child was rescued uninjured. Under state law, a special circumstance for felony murder was that the felony was committed incidentally to the murder; that is, it was committed to achieve the murder. This was a narrowing principle.
On appeal here, the state supreme court broadened the state law (Green) so that the felony could be independent or concurrent to the murder. This was a substantial reinterpretation. Under the interpretation, it was the state prosecutor's version of the offense, that the arson was to murder the family, that would acquit the petitioner. To make matters worse, the court had failed to give the petitioner a Green instruction. The 9th held that the failure to so instruct on Green was prejudicial error, and that the radical reinterpretation of Green failed to give fair notice, could not be retroactive, and violated due process (Bouie).
posted by Jon Sands at 4/11/2006 05:38:00 PM
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