US v. Washington, No. 04-50431 (9-6-06). Defendant committed armed robbery. He was left, shall we say, holding the bag, or at least possibly brandishing a gun. On appeal, defendant argued that Miranda was violated. When he was being booked, he was questioned about "gang affiliations." He also, when he was read his rights, stated that he "would listen without a lawyer." The 9th (Hug) holds that gang affiliation is just standard bio information (!) and serves to make the suspect safe. The 9th also holds that defendant effectively waived his rights and that the distinction of "listening" wasn't a waiver with conditions. Defendant also argued that statements of witnesses who placed him at the robbery were motivated by the prospect of a reward. After vigorous cross-exam, the prosecutor offered statements made earlier. Defendant raised a hearsay objection, but the 9th agreed with the gov't that it was a prior consistent statement and so was nonhearsay. Allegations of prosecutorial misconduct were made for statements about the Miranda hearing, but they were denied as harmless. Finally, the case was remanded for the court to determine whether brandishing took place. The jury found no brandishing in its verdict (hence a 5 year and not a 7 year sentence) but the 9th, acknowledging the tension with Harris, still found that Harris controls, and a judge must make the call. The case is remanded for a resentencing moreover because juvenile convictions were counted (including when the defendant allegedly stole candy when he was 9), and that under Ameline, a resentencing should take place. the original district judge is now deceased,a and so a full resentencing takes place.

Reynoso v. Giurbino, No. 05-55695 (9-6-06). The 9th (Reinhardt) affirms the granting of a writ for IAC. The petitioner was convicted of a shooting 3 years earlier on fairly skimpy identification evidence, and the witnesses had all been informed of the reward before they came forward. The 9th concluded that the state court's decision as to IAC, when the counsel failed to cross on the reward, was contrary to the Supremes, and so relief must be granted. Trott, in dissent, argues that certain factual issues are still uncertain, namely whether the public defender had been told by the prosecutor that all the witnesses knew of the reward. This, and other trimming issues, need to be resolved so that the decision can be measured against IAC standards, and whether the assessment of IAC by the state courts were unreasonable.