Friday, May 05, 2006

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.


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