US v. Jernigan, No. 05-10086 (6-26-06). The 9th turns a blind eye away from a misidentification case, and an innocent defendant. The defendant robbed a bank -- she was a short Hispanic woman, with acne scars. The identifications were strong and certain, although they disagreed with one another in certain key aspects. While the defendant was incarcerated pretrial, the bank robberies continued by a robber described as a short Hispanic woman with acne scars. Coincidence? Brady? The gov't didn't disclose these other string of robberies, and it was brought to counsel's attention when the inmates talked amongst themselves. The 9th shrugged, saying that the identification was strong enough not to warrant a new trial for newly discovered evidence, and there was no Brady violation (lack of materiality). B. Fletcher dissented, agreeing to affirm the Rule 33 denial of a new trial, but believing that the gov't failed its Brady obligations. The gov't knew there were other ban robberies with a similar looking suspect, and that odds are such that it could be, and possibly was, the same. The defense should have been told.

US v. Staffeldt, No. 05-10243 (6-26-06). Mistakes happen. Two wiretaps were authorized by DOJ. The authorizations thoiugh were erroneously switched and faxed to the US Attorney offices. The AUSAs were so excited about getting the wiretap authorizations that they stapled it to the application and gave it to the judge. The judge didn't notice that the authorization was for a different case, a different name, a different phone (it appears to be EHC...see note 7). And so the wiretap was approved, only later to have the mistake discovered.

The court suppressed (ROS) and the gov't appealed, arguing that it was a mistake without materiality because the application had been approved. The 9th (Reinhardt) would have none of it, holding that it wasn't a minor error, or even a slight mistake, but a wholesale violation of the very terms of the authorizing statute. The 9th affirms the suppression.

Cisneros-Perez v. Gonzales, No. 04-71717 (6-26-06). The 9th holds that simple battery (Calif. Penal Code 243(e)(1)is not by itself a crime of domestic violence. It is subject to a modified categorical test (Taylor/Shepard). Here, although the police reports indicate the petitioner had assaulted his wife, and the sentence included counseling for domestic violence, the documents that could be examined, the plea and conviction, does not support a finding of domestic violence. The case is remanded to the IJ for possible cancellation. Callahan dissents, arguing that the sentence terms (counseling etc.) should be examined under a modified approach.