US v. Pintado-Isiordia, No. 05-50489 (5-26-06). A somewhat elliptic opinion affirming a 1326 conviction but remanding for resentencing. The evidentiary issues raised indicate that the defense was probably that the defendant was a US citizen. The 9th (per curiam) found that the birth certificate was self authenticating under Fed R Civ P 44(a)(2), and that the Convention signed between the US and Mexico permitted an Apostille to certify its authenticity rather than a "final certification." This specific birth certificate, though, was illegible at points, and so the admission of this particular birth certificate was error. The error was harmless because the evidence was corroborating defendant's witness and was not prejudicial. The 9th also found no evidentiary error in admitting Mexican military records or photos given the defense and limiting instructions. The sentencing remand was required because it was unclear whether the court found the prior conviction of assault with a firearm to be a crime of violence under a categorical or modified categorical approach.

Case o’ The Week: Ninth Directs Howard’s End (be reversed; appellate win)

Over a "concurrence dubitante" by Judge Noonan (left), the Ninth articulates a good Fourth Amendment analysis for probationers, parolees, and supervised releasees (?) in United States v. Curtis Ray Howard, __ F.3d __, 06 Daily Cal. Op. Serv. 5787 (9th Cir. May 25, 2006), opinion available here.

Players: Nice victory by Nevada AFPD Shari L. Kaufman.

Facts: Howard was on supervised release for bank robbery. Id. at 5791. One condition was a "warrantless search of his residence, person, property, and automobile." Id. at 796. Howard’s new girlfriend was a seven-time felon and recovering cocaine addict. Id. at 5791. Unmoved by this blooming romance, the PO prohibited the relationship. Id. A CI then called the PO, claiming Howard had a gun in the girlfriend’s apartment. Id. The PO enlisted cops and began weeks of surveillance. Id. at 5792. Despite these efforts, the showing that Howard actually lived at the girlfriend’s place was spotty. Undeterred, the PO and cops invoked the search condition, searched the girlfriend’s home, and found a gun. Id. at 5796.

Issue(s): "Howard appeals the district court’s ruling that the search of an apartment at which he had spent the night was constitutional because he was on probation and officers had probable cause to believe that he resided there." Id. at 5790 (emphasis added).

Held: "We hold that the evidence in this case was insufficient to establish probable cause and reverse the ruling of the district court." Id. "We . . . hold that the police do not have probable cause to believe that a parolee lives at an unreported residence when: (1) visits to the parolee’s reported address suggested that the parolee continued to reside there; (2) the police watched the address in question for a month and did not see the parolee there; (3) no credible witnesses had seen the parolee at the address in question for some time before the search; (4) the parolee did not have a key to the residence in question; and (5) neither the parolee nor his purported co-resident admitted to his residence there." Id. at 5807.

Of Note: Howard is a well-written opinion. Judge Bybee’s survey of Ninth precedent is exhaustive, and he carefully culls PC factors and applies these factors to Howard’s facts. Id. at 5798-806. It will be the lead case on the issue in the Ninth, and probably in other circuits as well – if it survives.

Judge Noonan counters with a "concurrence dubitante," and an unsubtle plea for the Supremes to mull over the Ninth’s rule after Knights. Id. at 5808. Noonan’s plea probably won’t go far, although the Ninth’s rules on probation searches are not popular among the Nine.

It is also interesting that although Howard was on supervised release, Bybee refers to a "parolee" when articulating the PC factors. See id. at 5807. Does it make a difference? Who knows, but it’s something to snag if the government tries to distinguish Howard in a parole case. For Bybee, at least, probation, parole, and supervised release seem interchangeable for this analysis.

How to Use: Here are the "commonalities" (aka, "factors") that a court will use on the PC issue after Howard: 1. Does the parolee appear to be residing at an address other than the one searched? Id. at 5803. 2. Did an officer directly observe something that gave them good reason to suspect the parolee was using the residence as a home base? Id. at 5803-04. 3. Did the parolee have a key to the residence? Id. at 5804. 4. Did the parolee – or a co-resident – identify the place as the residence of the parolee? Id. at 5804.

For Further Reading: What is "concurrence dubitante?" Dubitante: ['dü-bi-'tan-te, 'dyü-, -'tän-] Latin, ablative singular masculine of dubitans, present participle of dubitare to doubt: having doubts (used of a judge who expresses doubt about but does not dissent from a decision reached by a court).

It is a rare type of opinion, and it isn't entirely clear if a concurrence dubitante is a concurrence, or a dissent. See blog here.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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US v. Casch, No. 05-30270 (5-24-06). Venue is a constitutional right. It is stated in Art. III, and requires those charged with crimes to be tried where the crime occurred. The court here failed to give a jury instruction as to venue in a conspiracy, where the offenses took place in the Districts of Washington and Idaho. The defendant had objected, but the court said it was a legal matter. Pretty cut and dried, right? Well, the 9th acknowledged the right in the usual hortatory language, and then gave short shrift to the fact that it wasn't a structural error, and so it can be considered under a harmless standard. Under such a standard, the 9th concluded the evidence was overwhelming and it was conjecture that the jury may have split on where the conspiracy actually took place. Its another instance of winning the constitutional principle but losing the factual particulars.

US v. Howard, No. 05-10469 (5-25-06). The 9th (Bybee) holds that a probationer's/supervised releasee's diminished expectation of privacy, under the condition that he agree to a warrantless search, only applies to his residence, and not to another abode where he may spend some time. here, defendant was on SR. he was told not to stay away from his girlfriend, who also was a felon (one of the conditions was not to associate with known felons). Defendant was seemingly still seeing her. Information came in to the PO that the defendant was hanging around the apartment, hanging around with gang members, and he wasn't always at his stated residence. yet, his home looked lived in, and his work schedule was constantly changing. The 9th went through a detailed analysis of the various precedents, and concluded that a residence was strictly construed; mere staying over or visiting was not enough. The cases were compared and contrasted in detail, and provide a good checklist for comparison. Here, the evidence did not meet probable cause that the defendant lived at an unreported residence because (1) he appeared to still be living elsewhere; (2) the police did not see him at his girlfriend's in a month; (3) no credible witness saw him at the apartment some time before the search; (4) the defendant did not have a key to the apartment; and (5) no admission that he lived there. As a result, the evidence (a gun) was suppressed. In a grudging concurrence, Noonan noted that precedent, but thinks the 9th went astray. Katz gives privacy interests to people not solely places, and here, to Noonan, the strict construction is bad policy as a defendant on SR be given a "safe haven" to conduct crime under a higher standard so long as a companion is compliant.Congrats to FPD Franny Forsman and AFPD Shari Kaufman.

Raspberry v. Garcia, No. 03-15854 (5-25-06). The district court has no obligation to advise a pro se petitioner about potentially exhausted claims that the petitioner failed to include in his habeas petition. The 9th also finds that a successor petition did not relate back when the first was dismissed for unexhausted claims.

Perez v. Rosario, No. 04-15279 (5-22-06). The 9th considers whether a proffered plea bargain based on a mistake can be IAC. Here, the defendant was charged with assault with a dangerous weapon. He was a state three striker. The prosecutor offered a plea, mistakenly believing that one strike didn't count. The petitioner turned the deal down, went to trial, and lost. He received 47 years. He now claims that he would have accepted the plea if his counsel has advised him correctly. The 9th (O'Scannlain) didn't buy it, concluding that the mistakes would have been rectified, and that the prosecutor would have withdrawn the plea, or the court would have rejected it, or that defense counsel couldn't be sure that the mistake would have remained undiscovered.

Vo v. Benov, No. 04-56689 (5-22-06). It isn't nice going to another country (Thailand) and attempting to blow up the Vietnamese Embassy. The US and the Thais were upset with petitioner, who belonged to the "Government to Free Vietnam" that has been deemed a terrorist organization. The petitioner and an associate went to Thailand and tried to wreck havoc. They were unsuccessful, but prosecutions followed. The Thais asked for extradition, and the 9th affirmed the extradition order, ruling against petitioner that his acts were political activity.

Benitez v. Garcia, No. 04-56231 (5-23-06). Does this country follow treaties and conventions, and do the courts enforce them? This is an issue that is regularly coming up. Here, in the extradition context, the 9th does enforce an extradition treaty the US has with Venezuela that states that a sentence imposed cannot exceed 30 years. The petitioner here was extradited for a murder, and given, in state court, 15 years to life. The state courts and the federal courts all had issues with ripeness, arguing that the claim would be triggered once the petitioner had served 30. The 9th actually read the treaty where it stated that the sentence imposed could not exceed 30, and the correspondence in this case indicated that the Venezuelan gov't had indicated that it would not be "in principle" greater than 30. The issue was moot, and the treaty's language controls where it is exact, and covers the crimes for which the defendant is extradited. The state courts' findings were clearly wrong and not given AEDPA deference. The writ is granted..

Case o' The Week: Standing in rental cars OK by O'Scannlain

Diarmuid (left) does us right by adopting a Fourth Amendment standing rule that still gives some hope for challenges in rental car cases. United States v. Thomas, __ F.3d __, 06 Cal. Daily Op. Serv. 5427 (9th Cir. May 18, 2006), opinion available here.

Players: Good new rule penned by Judge Diarmuid F. O’Scannlain (or rather, better than the bad rule previously adopted by other circuits).

Facts: The DEA gets wind of a crack smuggling scheme that relies on rental cars. 06 Cal. Daily Op. Serv. 5427, 5431-33. The feds put a tracking device on a rental car ultimately used by defendant Thomas. Id. Although he drove the car, Thomas didn’t rent it, nor was he an “authorized driver” on the rental contract. Id. at 5433. Thomas is stopped; crack is recovered. The defense challenges the use of the tracking device; the district court denies the motion. Id. at 5434.

Issue(s): “This case requires us to consider whether a driver of a rental car who is not listed on the rental agreement has standing to challenge a police search of the vehicle.” Id. at 5431.

Held:.“[A]n unauthorized driver who received permission to use a rental car and has joint authority over the car may challenge the search to the same extent as the authorized renter. This approach is in accord with precedent holding that indicia of ownership – including the right to exclude others – coupled with possession and the rightful owner, are sufficient grounds upon which to find standing.” Id. at 5440.

Of Note: The Ninth chooses between a three-way Circuit split in adopting this new Fourth Amendment standing rule. The Fourth, Fifth, and Tenth Circuits have bright-line rules denying standing to unauthorized drivers of rental cars. Id. at 5436-37. The Eight Circuit has a modification of this rule, and “generally disallows standing unless the unauthorized driver can show he or she had the permission of the authorized driver.” Id. at 5437. The Sixth Circuit looks at the “totality of circumstances,” and lists a number of factors for guidance. Id. The Ninth sides with the Eighth in adopting this new “permission” rule of standing.

How to Use: Thomas is now doing 188 months - well over fifteen years. Is he happy with this Ninth Circuit opinion? Not so much. While Judge O’Scannlain adopts a good new rule, he then upholds the denial of the suppression motion because Thomas had failed to show that he had the true renter’s permission to drive the car. Id. at 5441. This decision is thus is cold comfort, particularly when i) this new rule in the Ninth didn’t exist when Thomas’s suppression motion was filed, and ii) Thomas did everything he could to withdraw his plea and (presumably) show standing through the renter’s permission. The lesson is, don’t forget to show standing in your Fourth Amendment motions. To skip that showing and to hope the government doesn’t notice is to risk Thomas’s pyrrhic victory.

For Further Reading: Judge Diarmuid F. O’Scannlain was appointed by Reagan in 1986; his chambers are in Portland, Oregon. See article here. He is the first-generation Irish-American son of immigrants from Sligo and Derry. Id. A conservative member of the Ninth, see Federalist Society Convention speakers, he is also a major Supreme Court feeder for clerks. Judge O’Scannlain is a very vocal critic of “judicial activism.” See article here.
For a very candid – and funny – chronicle of the Ninth Circuit feud between Right and Left (O’Scannlain and Reinhardt) take a look at this blog entry. See blog here.
Like several other conservative judges, O’Scannlain supports proposals to split the Ninth Circuit. See article here.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at www.ndcalfpd.org

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US v. Diaz-Argueta, No. 05-10224 (5-16-06). The 9th reaffirms that sentencing must include 3553 factors. This is a 1326 case, where the defendant argued that his state conviction of "assault with a deadly weapon" was a "wobbler" (parlance for either a felony or misdemeanor). The 9th agreed that this offense could be a "wobbler," but the presumption is that it is a felony, and that the state court must do something to indicate that it is a misdemeanor The court must designate, or indicate so when ordering probation or upon motion of the defendant. The defendant didn't overcome the presumption, despite the relative mildness of the state sentence (109 days and 2 years probation). The case was remanded for resentencing though because the court just referred to the guidelines and PSR and did not apply and consider the 3553 factors. The 9th (Noonan) stresses that: "Sentencing is a difficult art. It is easy to make it mechanical. It is impossible to make it scientific in the sense of an hypothesis validated or invalidated by experiment. It is, however, an act of reason as the judge looking at this particular person and the circumstances of the crime that this particular person has committed makes a judgment following the prescriptions of the statute. This act remains to be done." (P. 5329). The court must indicate that it considered such factors.

US v. Thomas, No. 04-30541 (5-18-06). Next time you rent a car, think about who you put on the authorization to drive. The defendant was transporting drugs in a scheme where the cars were rented by one person but another drove. The car was stopped and defendant raised the issue of whether a tracking device on the car violated his right to privacy. He did not contend that he was given permission to drive the car. This is a surprising issue of first impression: "whether a driver of a rental car who is not listed on the rental agreement has standing to challenge the police search of the vehicle." The 9th qualifies the "yes," holding that "[a]n unauthorized driver may have standing to challenge a search if he or she has received permission to use the car." This is a middle ground between the approach of the 4th, 5th and 10th Circuits that have adopted a bright line test that the name has to be on the rental agreement for permission and the 6th Circuit that has a totality of circumstances approach. The 9th's holding, adoptive of the 8th Circuit, modifies the bright line test and generally disallows standing unless the unauthorized driver can she he or she has permission of the authorized driver. Here, though, the defendant didn't present evidence of any such permission. The defendant won the holding, but lost his standing. The case was remanded for Ameline sentencing considerations.

US v. Lopez-Solis, No. 03-10059 (5-19-06). The 9th looks at the Tennessee statute against statutory rape, and under a categorical analysis, holds that it is not a "crime of violence" for enhancement under illegal reentry, 2L1.2. The state statute is overbroad in the sense that it includes consensual sex between mature minors (almost 18) and someone who is 22. The physical and psychological abuse is not per se in such cases, and follows a similar 9th Cir. holding in another state statute, Valencia v. Gonzales, 439 F.3d 1046 (9th Cir. 2006). The 9th also holds that a Sentencing Guideline amendment defining "sexual abuse of a minor" as a crime of violence was substantive, and not merely clarifying, and so cannot be applied ex post facto. This latter point prompts Graber to dissent, arguing that the definition merely clarifies what is a crime of violence and so, since crime of violence had already been in the guideline, it can be applied ex post facto.

US v. Lo, No. 03-50608 (5-19-06). The "Lo" down on possessing ephedrine in ma huang extract is that it can be a precursor. Here, defendant as convicted of possessing ma huang extract and that it could be considered a precursor. The court had directed an acquittal after the jury convicted on those counts. The 9th found that the gov't could appeal under 3731 (implied jurisdiction although not specifically stated) and that the courts had jurisdiction. the 9th then found that the ma huang extract could be considered a precursor because sufficient evidence existed that ephedrine had a separate existence within the extract and would not have to be a chemically transformation or reaction. The defendant had failed to contest this point at trial. The 9th also uphold the conspiracy conviction despite the codefendant's acquittal. The defendant's defense was that he was simply trying to defraud the purchaser of the ma huang extract into thinking that it could be used for meth (thieves cheating thieves). The 9th held sufficient evidence for such a conviction. It found the defendant's multiple other challenges wanting but did remand for resentencing under Ameline.

Case o' The Week: Morris Finicky About Gov't-Witness Perjury

In Morris, the Ninth turns up its nose to a prosecutor’s failure to pursue suspicions of government-witness perjury. Morris v. Ylst, __ F.3d __, 06 Cal. Daily Op. Serv. 5195 (9th Cir. May 9, 2006), opinion available here. The new, good rule is this: a prosecutor must investigate suspicions of government-witness perjury, and report incidents of perjured testimony.

Players: Author, Graber; righteous concurrence by Ferguson attacking the fairness of the death penalty prosecution in this case.

Facts: Habeas petitioner Morris got a death sentence for beating a hitchhiker to death with a rock and a stick. Id. at 5201. His trial defense was straight innocence. He testified that his girlfriend – Barrett – and her sister were the killers. Id. at 5202. At trial the girlfriend flipped and testified against Morris. Id. at 5203.
After trial, the prosecutor’s legal assistant wrote a memo explaining, “[Barrett] perjured herself at trial,” talked about getting transcripts, and “determination of Barrett’s perjury.” Id. at 5203. There was, however, no investigation into the perjury. The memo itself was only disclosed years later, on habeas. Id. at 5204.

Issue(s): “[W]e must decide whether the prosecution had a duty to investigate an allegation or suspicion of perjury, separate from its duty to disclose perjury that has definitely taken place.” Id. at 5210.

Held:.“When a prosecutor suspects perjury, the prosecutor must at least investigate. The duty to act is not discharged by attempting to finesse the problem by pressing ahead without a diligent and good faith attempt to resolve it. A prosecutor cannot avoid this obligation by refusing to search for the truth and remaining willfully ignorant of the facts. Id. . . . . The Court has emphasized that the presentation of false evidence involves a corruption of the truth-seeking function of the trial process. This truth-seeking function cannot be fulfilled when the state, knowing that a witness may have perjured herself, proceeds without conducting an investigation to ensure that a new trial is not warranted. The duty to investigate flows from the constitutional obligation of the State and its representatives to collect potentially exculpatory evidence, to prevent fraud upon the court, and to elicit the truth. Id. at 5211 (internal quotations and citations omitted). {But, in this habeas petition no sufficient showing of prejudice, so no ultimate habeas relief. Id. at 5214.}

Of Note: This dense opinion bristles with issues and rules. An interesting parallel issue to the perjury question is whether a prosecutor must disclose work product that opines his witness perjured himself? Id. at 5207. The answer, disappointingly, is no. The Ninth adopts a new rule, agreeing with the 11th Circuit: “Thus, in general, a prosecutor’s opinions and mental impressions of the case are not discoverable under Brady unless they contain underlying exculpatory facts.” Id. at 5208. In this case, the opinion regarding perjury was not based on facts unknown to the defense, so it was not Brady.

How to Use: All prosecutors know that they have to disclose their witness’s perjury – they just don’t recognize perjury unless their witnesses spontaneously confess to such in a signed, red-ink declaration in size 42 font (twice notarized). The Morris rule is that a prosecutor has to affirmatively investigate suspicions of government witness perjury. “Wilful ignorance” won’t cut it. Quote this good Morris rule in discovery letters to remind prosecutors of their obligations.

For Further Reading: As noted above, Judge Ferguson has a dead-on concurrence to the main opinion. Id. at 5215. He explains, “I write separately to underscore the prosecutor’s abuse of his discretion in singling out the Petitioner for the death penalty, when it is the state’s position that the three defendants are equally guilty of . . . felony murder.” Id. Morris’s girlfriend got three years out of the case for a vehicle code violation; her sister was never prosecuted. Id. at 5216.

Is Lizzie Borden haunting death penalty litigation? See discussion of sex bias and death sentences here.

If you really needed one, here’s yet another reason oppose the death penalty.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at www.ndcalfpd.org

Habeas Resources

Professor Berman posted links to Congressional Research Service articles on federal habeas corpus that look like good introductory material: Federal Habeas Corpus: An Abridged Sketch; and the 40-page Federal Habeas Corpus: A Brief Legal Overview. Courtesy of the SCOTUS blog, we have the amicus briefs of habeas scholars in support of Guantanamo detainees opposing the government's interpretation of the Detainee Treatment Act, arguing based on the writ's common law meaning, and another group of habeas scholars arguing that the Framers' understanding of habeas corpus forecloses congressional jurisdiction-stripping. And the Federal Defenders have an amicus brief on the DTA addressing constitutional doubts based on suspension of the writ, Bill of Attainder, separation of powers, and due process.

US v. Marcial-Santiago, No. 05-30248 (5-8-06). The 9th holds that the disparity between fast-track and non-fast-track defendants does not make the higher sentence unreasonable. The defendants here were illegal reentries. The district (Montana) does not have a fast-track program. Their sentences were much higher than they would have been under fast-track (close to 75% of the immigration cases are sentenced under fast-track). The 9th said "so what." Congress approved such disparity under the Protect Act, and recognized that such differences would take place. Moreover, "unwarranted disparity" is but one factor to consider in sentencing. The 9th also reasoned that fast-track is part of prosecutorial discretion, involving resources, and so the equal protection and due process arguments fail. In footnote 3, the 9th notes that Booker did not alter Banuelos-Rodriguez, 215 F.3d 969 (9th Cir. 2000)(en banc) which held that disparity due to a lack of a fast-track was not a proper ground for a departure.A silver-lining tact that can be taken is this decision's emphasis that unwarranted disparity is but one factor. It does not have prominence among the other 3553 factors. Hence, we can argue that unwarranted disparity is not a "first among equals," but can be subjugated to other more compelling factors in a case, such as rehabilitation or the nature of the offense.

US v. Torres-Hernandez, No. 05-50136 (5-8-06). This is an equal protection challenge to the underrepresentation of Hispanics on g grand juries. The 9th decides that "a district court need not and may not take into account Hispanics who are ineligible for jury service to determine whether Hispanics are underrepresented on grand jury venires." Further, "to determine whether Hispanics are underrepresented to an unconstitutional degree in venires, a district court must rely on that evidence which most accurately reflects the judicial district's actual percentage of jury-eligible Hispanics. In the Southern District of California (San Diego and Imperial), Hispanics are roughly 29% of the population and jury eligible was roughly 16%. The focus is not on the total percentage of Hispanics, but those that meet the jury eligibility criteria.

The 2% difference between the jury eligible and the percentage actually on grand juries and juries was constitutionally insignificant (the level is roughly 4.9 that causes judicial eyebrows to rise). The 9th sidesteps a intra-circuit conflict on whether the defendant must present only jury-eligible evidence versus whether total percentage. Here, under either standard, no constitutional violation occurred.

Morris v. Ylist, No. 05-99002 (5-9-06). The 9th affirms convictions in this habeas petition (the 9th had already remanded the case for a new sentencing trial). This was a brutal murder, but one in which one codefendant got a three year sentence, another wasn't prosecutor, and the petitioner here got death (remanded). In terms of the convictions, the 9th considers various allegations of Brady violations and perjurious testimony by witnesses. The 9th was troubled by some of the sleigh of hand by the prosecutors, lack of candor, and of course lack of disclosure.

The 9th found though that the guilt was overwhelming, and so any violations were harmless, and some evidence, such as a scrawled note from a prosecutor that testimony was "perjury" was taken as work product opinion (?) and so not Brady. Strange. Other evidence may have impeached the witness, but did not necessarily exculpate the petitioner. Of note in this opinion is Ferguson's concurrence, in which he reiterates the freakish and arbitrary nature of death decisions by the prosecutor, and emphasizes that the jury, in the remand penalty, must be informed as a mitigator the prosecutorial concession that all three codefendants were equally culpable, but only one is singled out for death.

Case o' The Week: Mason hits brick wall in Bruton, Crawford habeas

Judge Michael Daly Hawkins is not just standing on a corner in Winslow Arizona (left); he’s busy penning a new habeas decision on Sixth Amendment rights. Mason v. Yarborough, __ F.3d __, 06 Cal. Daily Op. Serv. 5101 (9th Cir. May 5, 2006), decision available here. (More on Winslow below).
In Mason, the Ninth finds no Bruton/Crawford error when contents of an accomplice’s statements not admitted into evidence . . . just fact of statement (and subsequent arrest).

Players: Opinion by Judge Michael Hawkins.

Facts: Mason filed for habeas review of a state first degree murder conviction. 06 Cal. Daily Op. Serv. at 5103. After drive-by shootings, an accomplice – “Fenton” – was arrested by the sheriff, interrogated for seven hours, then arrested. Id. at 5015. Those facts – the interrogation and arrest of Fenton – came in during Mason’s trial. Id. The content of Fenton’s statements did not. Id.

Issue(s): “Specifically, [Mason] claims that the admission of the fact of Fenton’s statement, under these circumstances, was essentially the same as admitting its content, thus violating the clearly established principle of Bruton v. United States, 391 U.S. 123 (1968), that the admission of a non-testifying codefendant’s ‘powerfully incriminating extrajudicial statement’ violates a defendant’s Sixth Amendment right to confront his accuser.” Id. at 5105-06.

Held: “Bruton’s protection, however, does not extend to all such statements. Richardson . . . specifically exempts a statement, not incriminating on its face, that implicates the defendant only in connection to other admitted evidence. On the other hand, the mere removal of a codefendant’s name from a statement that obviously refers to the defendant, does not insulate the statement from Bruton scrutiny. Gray . . . The statement here seems closer to Richardson than Gray for at least two reasons. First, Fenton’s statement . . . does not mention Mason at all. In fact, because its content never came into evidence, as far as the jury was concerned, it mentioned no one at all. For all the jury knew, Fenton confessed to his own involvement in the shootings and was arrested. Second, as Gray itself notes, the facts that would have allowed the jury to infer that Fenton’s statement implicated Mason came through other, properly admitted evidence . . . .” Id. at 5106 (citations omitted).

Of Note: In a convincing dissent, Judge Wallace observes that there can be no Crawford error when actual statements are not introduced into evidence. Id. at 5109. For Wallace, this should end the habeas inquiry. Wallace worries the majority’s Bruton analysis is misplaced because, in this case, Fenton was not a co-defendant of petitioner Mason: Mason was tried by himself. Id. at 5111-12. He warns, “The majority’s application of Richardson would appear to be squarely at odds with Crawford by potentially allowing testimonial statements to be admitted without cross-examination against a defendant tried separately, as long as the statement was not facially incriminating.” Id. at 5112.

How to Use: Mason is trouble for two important areas of Sixth Amendment law: Bruton and Crawford. It is, however, a habeas case. As such, maybe one can distinguish direct federal cases. While, in Mason, there was no “clearly established” Supreme Court law that required habeas relief, on a direct federal action the Circuit can nonetheless find that the Sixth Amendment precludes admitting similar evidence in a direct federal case. (A Circuit can more easily extend constitutional law to like facts in a direct federal case than under AEDPA in habeas actions).

For Further Reading: Judge Michael Daly Hawkins is a former Marine and former US Attorney who was appointed by Clinton. See article here. Although he is a Clinton appointee, he is generally considered more “moderate” than some of his fellow Marines in the Ninth (Tashima, Pregerson). He was standing in a corner in Winslow Arizona when he met his wife – a girl my lord, in a flatbed Ford. (Or something close to that happened; Hawkins was born and raised in Winslow). Id. Like Arizona Defender Jon Sands, he is a passionate Diamondbacks fan. Id.

Steven Kalar, Senior Litigator ND Cal FPD. Website available at www.ndcalfpd.0rg

US v. Brigham, No. 03-30381 (5-5-06). The 9th looks askance at the so-called "sentencing council" practice of judges meeting together formally prior to sentencing to discuss cases and appropriate sentences. The 9th is uneasy about this practice, but because there was no objection, it couldn't be considered plain error. The authorities supporting ex parte meetings focus on probation officers meeting with the judge, and not with a formalized Star Chamber (opps, I meant "sentencing council") which are cloaked in secrecy. This practice was a holdover from the pre-Guidelines days when it was a pilot project to reduce disparity (although it seemed to have had no effect). In a concurrence, Ferguson in a concurrence decries such councils, cautions against peer pressure (Editorial notes: judicial peer pressure can be as biting as any other clique. E.g."How can you give that sentence, what are you, some sort of sentencing wimp?") and the secrecy. The case was remanded for resentencing because of Ameline. As for other issues, this case involved a looting of a restaurant (think of it as "take out" orders of large sums of money), with false statements on loans, and violation of court order by pledging of stock as collateral (the order prohibited selling). The 9th found that pledging can be considered a sale.

Mason v. Yarborough, No. 04-17330 (5-5-06). On habeas petition, the 9th holds that testimony that a codefendant made a statement, and nothing more, did not violate Bruton nor Crawford. This case was a state murder prosecution, where the police testified that a codefendant meet with them, met with them for several hours, and gave a statement. The statement was not introduced. The 9th (Hawkins and Thomas) held that this was not a Bruton violation because it was closer to Richardson, which allows redaction. The content of the statement was not introduced, and so there was nothing incriminating, and the evidence itself only dealt with the meeting. The majority also questioned whether, under Crawford, this could even be considered a testimonial statement, as it was not clear that the codefendant was being used as a witness against the defendant (Ed. note: then why was the statement relevant at all? It sounds like corroboration, which implies that the statement given had some truthfulness) Concurring, Wallace agrees with the outcome -- affirmance -- but believes that the analysis went down the wrong track in applying Bruton/Richardson/Gray and analyzing Crawford because the statement's content itself was not used. As a note, this was a state habeas, and the AEDPA standard is whether the ruling contradicted a Supremes case. In the federal system, the review might not be so deferential.

US v. TRW Rifle 7.62X51mm Caliber, No. 04-16049 (5-5-06). The is a civil forfeiture case. The US argued that the decommissioned M-14 machine gun the claimant bought on the up and up from MKS (who buys and decommissions military machine guns) was really a machine gun under 26 USC 5845(b) because it could be "readily" converted. The case revolved around whether the torch-cutting of the receiver and welding it back truly rendered it nonoperable as a machine gun. The answer, from the 9th, was "no". The evidence was that it took about 45 minutes to an hour for an experienced gunsmith to make the gun fully automatic. The gun therefore is considered a machine gun and is forfeited.

Aguiluz-Arellano, No. 03-73856 (5-1-06). The 9th, unsurprisingly, held that the Federal First Time Offender Act exemption for removal does not apply to a state conviction for Driving Under the Influence when it is a second conviction. FFOA does apply when a state conviction matches the federal. Here, contrary to the BIA interpretation, the Driving Under the Influence conviction may have meet the exemption requirements of the FFOA, for a first time offender, but not for a second drug conviction. As such, the petitioner is removable.

Jonah R. v. Carmona, No. 05-16391 (5-2-06). The 9th holds that juveniles must receive credit for pre-sentence custody. The 9th holds because the statute for such credit, 3585, does not unambiguously preclude such credit; that the district court erred in its legal interpretation; that the agency's (BOP's) interpretation should not be given deference because it flip-flopped for no reason, that the legislative history supports such credit, and because juveniles transferred from abroad are given such credit. Sure, juveniles are dealt with harshly under the present "Spare the rod...." mentality, but the 9th stresses how unfair it would be not to give such credit.

Congrats to AFPD Bob McWhirter from the D. Arizona (Phoenix) for the win.