US v. Espinoza-Cano, No. 05-10339 (8-8-06). The 9th wades into the thicket of Taylor/Shepard for a prior conviction where the police report was incorporated into the complaint, and then became part of the plea colloquy. The 9th holds that such incorporation meets the modified categorical approach approved by Shepard. The defendant, in state court, had admitted that the complaint formed the factual basis of the plea, and the complaint had referenced the police reports. One can see this as an unfortunate expansion of the modified approach. The reality is that defendants, presented with a favorable sentence, look at that rather than the factual basis in taking the plea. The repercussions will resound later. This case also sets out the standard for the 3rd point of acceptance. The defendant here went with a bench trial because the gov't wouldn't grant a conditional plea. The defendant asked for the 3rd point, but didn't get it because the gov't refused to move for it. The 9th holds that the review standard for the granting of the 3rd point is the same as for substantial assistance. It is completely at the whim of the gov't except if it is animated by an unconstitutional motive or not rationally related to a legitimate gov't end. This is the position of the 6th, 8th, and 10th Circuits.
The third point is now like substantial assistance: the gov't gets to dole it out. Fortunately, it is often the gov't that wants the plea.

US v. Ziegler, No. 05-30177 (8-8-06). An employee can have a subjective belief in the privacy of his work computer, but society's objective standard is that he does not. As such, the employer can look into a computer's hard drive, copy it, and turn it over to the police. The defendant here worked for a company (Frontline) that had a policy against inappropriate content on its computers. Defendant loaded child porn on his work computer. the FBI was tipped off, and they had the cooperation of the company officials, who at night copied the hard drive. This was okay because there was no objective expectation of privacy in a work computer.

LaMere v. Slaughter, No. 05-35588 (8-8-06). Winship and Jackson, the tests for sufficiency of the evidence, are not limited to the evidence presented only in the state's case-in-chief but takes into account all the evidence. This case arose from a state mitigated homicide conviction (Idaho) where the motion for acquittal at the end of the state's case was denied, and the petitioner went all to present evidence. In assessing the sufficiency of the evidence, all evidence is considered, and not just focused on the state's case in chief.

US v. Ellsworth, No. 05-10365 (8-9-06). The 9th (Fisher) upholds the two level adjustment in the guidelines for a prohibited possessor having a stolen gun despite not knowing the gun was stolen. This was an equal protection challenge, arguing that scienter or knowledge is required. the 9th said "no" because there is a rational basis for increasing a penalty for stolen firearms, whether the defendant knew to not. The 9th joins other circuits in this regard.

Alberni v. McDaniel, No. 05-15570 (8-8-06). The 9th remands a petition for an evidentiary hearing to determine whether there was a conflict when the petitioner's counsel cross-examined a state's witness who had been the counsel's former client. McKeown dissents, arguing that there was no prejudice under Strickland.