US v. Johnson, No. 02-50618 (4-13-06). This was a bank robbery scheme, where the defendant stayed in the getaway car while his codefendants robbed the bank. As usual in crimes, unplanned things occurred, and a teller ended up being hurt, guns were brandished and used, and there was a high speed chase that ended badly for the robbers. The defendant as charged with conspiracy, armed bank robbery, and a 924(c). The jury convicted on conspiracy, returned a lesser of unarmed bank robbery, and hung on 924(c). The 9th held that a Rule 29 on the gun count was not mandated, and that the gov't was not barred from retrying. The sentence was remanded under Ameline, and to a different judge as the original jurist had retired. The 9th stated that in resentencing, the court could consider the whole range of conduct (hint hint about the gun).

Raley v. Ylst, No. 04-99008 (4-14-06). The 9th affirms denial of a capital petitioner's claims. This was a kidnap, sexual abuse, torture, and murder of one victim and an assault, kidnap and sexual abuse of another. Both victims were held, sexual assaulted, and physically beaten and stabbed. They were thrown down a ravine. One lived and the other died at the hospital. Petitioner confessed, expressed remorse, and had a causation claim that it was the hospital's negligence that resulted in death. In his federal petition, Petitioner argued IAC, jury misconduct, and Brady. The focus of the IAC was the decision not to present any of the three mental health experts that evaluated the petitioner. Each one had a different evaluation. The 9th held that the decision not to present mental health experts did not violate Strickland because it was a strategic decision. Counsel relied upon lay testimony for childhood abuse and possible emotional difficulties. The first jury hung in the penalty phase with this decision. Co-counsel tried the second penalty phase, and went back to the experts, reinterviewed some of them, and provided additional information. The decision not to present was neither ineffective nor prejudicial. The 9th brushed off the jury discussions of the petitioner's failure to testify, whether LWOP meant LWOP, and the costs of LWOP. The 9th dismissively stated that these did not count as extrinsic influences, but were part of the trial and deliberations. The 9th acknowledged that the discussion of testifying violated the court's instructions, the 9th refused to act on these errors. What happens in the jury deliberations stays in the jury deliberations, holds the 9th, even if it tramples constitutional rights. The Brady claim was found to be meritless because the petitioner had access to the information (the medication he was taking in jail).