US v. Mejia-Pimental, No. 05-30604 (2-26-07). In the context of the "safety valve," the 9th addresses what is meant by "good faith" disclosure of information. Here, the defendant was less than candid in the first go-around. Afterwards, and after his uncle had been convicted of a lesser charge, but before defendant himself was sentenced, he sent a proffer letter outlining all he knew about his involvement and others. The government was annoyed because the information was now stale, and the uncle had gotten a lesser. The government complained that it was not fully in good faith, and the court concluded that the defendant had not cooperated with the government or provided timely information. Neither the government nor the court concluded that the proffer letter was misleading or wrong. The court had also stated that he was going to sentence in accordance with the mandatory minimum. Judge Paez (joined by Thompson and D. Nelson) vacated and remanded. The 9th held that the focus was not on cooperation, or aiding the government in prosecution of others, but whether, at the time of sentencing, the defendant had provided truthful information in good faith. The 9th stressed that the defendant need only meet the statutory requirement of providing truthful information to the government of the offense(s). The 9th remanded because the court erred in using the mandatory minimum as a starting point because the safety valve directs the sentencing be under the guidelines (and no reference to the mandatories).

US v. Castillo-Basa, No. 05-50768 (2-26-07). This is a double jeopardy decision. The 9th, through Reinhardt joined by Wardlaw, finds that the government violates the double jeopardy bar when it seeks to bring a perjury charge against a defendant who testified on his behalf in a 1326 trial, and got an acquittal. His testimony was that there was not a prior deportation hearing. The government could not produce the tape, despite being ordered to twice by the court, and then only found it afterwards. The 9th was clear: the government gets its best shot, and does not get a "mulligan" when there is an acquittal. It had the evidence, it couldn't produce it, and so too bad. The fact the defendant may have been wrong in his testimony (or outright lied) cannot be the basis of a perjury trial because the key fact would be the same in both trials: was there a deportation hearing. In dissent, Trott decries the decision as giving the defendant a license to lie and not having any repercussions. Trott would find that collateral estoppel does not bar trial because the presence of the defendant at the deportation hearing was not at issue in the 1326 case.

Case o' The Week: Even Homer Nods, United States v. Novak

We're big fans of Judge Berzon, but even Homer nods. In the first circuit decision to address the issue, Berzon writes for the court and holds that retirement funds can be tapped to pay for criminal restitution. See United States v. Novak, __ F.3d __, No. 04-55838, Slip. Op. at 1953 (9th Cir. Feb. 22, 2007) (en banc), decision available here.

Players: Berzon authors en banc decision, W. Fletcher and others dissent.

Facts: Novak and his wife stole and sold phone gear – lots of it. His restitution order topped $3 million. Slip op. at 1959. He apparently had about $152,000 in various retirement plans; the government got a writ of garnishment against these retirement funds to pay restitution. Id. at 1960. Novak moved to quash. Id. A divided panel held that the Mandatory Victims Restitution Act overrides ERISA’s prohibition on using retirement funds for restitution. Id. The case went en banc.

Issue(s): “We are asked to determine whether – and if so, under what circumstances – a criminal defendant’s retirement benefits are available as a source of funds to compensate crime victims. Answering these questions requires reconciling two federal statutory schemes – one, the Mandatory Victims Restitution Act . . . and the other, the Employee Retirement Income Security Act . . . .” Id. at 1958.

Held: “[W]e conclude that criminal restitution orders can be enforced by garnishing retirement funds, but with the funds only payable when the defendant has a current, unilateral right to receive payments under the terms of the retirement plan.” Id. at 1958.

Of Note: Dissenting Judge Will Fletcher was joined by Judges Pregerson, Reinhardt, Thomas and Rawlinson. Id. at 1998 (W. Fletcher, J., dissenting). One would expect to see Berzon and Paez in that list – but instead they side with the majority, and with Judge Berzon writing? (And writing with a pretty sharp tone against the dissenters, to boot).

As last week’s O’Scannlain decision, Blanton, reveals, it is foolish to predict case outcomes solely on political affiliations. Nonetheless, Novak’s vote tally is a surprising, and disappointing, split. (Particularly because Judge Fletcher has the far better argument – read his take on the 1997 amendment to ERISA and the impact on statutory construction).

How to Use: How many indigent defendants could afford private counsel if they drained their retirement plans? After Novak, why not? If defendants ultimately lose their case and the government goes after restitution, they’ll lose their retirement funds anyway. For those involved in indigent defense, restitution orders are often hollow commands – you can’t get blood from a stone, and our clients have usually been bled dry by the time we’re appointed. But retirement funds for restitution have never really come into play before. How Novak will affect many fraud and embezzlement cases is case-specific; that it will affect many such cases seems clear. Consider Novak when advising a client who faces a restitution order down the pike – it might be a factor in considering a deal with a restitution stip, or in deciding whether to go to trial.

For Further Reading: Raymond Novak’s ex-wife, Nicholette Nance, worked for Nestle Food Corp. See FBI press release here. Nance ordered telephone circuit boards to upgrade an old system, hid the new boards by her work station, then gave them to her husband, Raymond, to sell. Id. They split the proceeds 50-50 for two years until they divorced – Nance then took three-quarters of the proceeds. Id. An interesting divorce settlement – the ex-wife gets an extra 1/4 of the proceedings of a criminal conspiracy.
In a plea deal, Raymond got two years custody; his ex-wife got thirty months. Id.

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

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US v. Mendez, 05-10205 (2-23-07). [Ed. note -- this is not an objective summary....it is our case] The 9th withdraws an opinion reversing a stop because an inference of a gang tattoo lead to a seizure and substitutes this affirmance. The new opinion is all the more dispiriting because it was written by Reinhardt (joined by Paez and Tallman). The defendant was pulled over. The cops then went beyond the traffic stop and began questioning defendant about gang affiliations, and his past life, based on a tattoo that an officer thought was gang related. The questioning eventually lead to a search of the car, where a weapon was found. On appeal, defendant's main argument was that the questioning went beyond the traffic stop. Murillo, 255 F.3d 1169 recognizes that questions may only be asked that are reasonably related in scope and justification for the initiation of contact. The Supremes in Muehler, 544 US at 101, state that mere questioning does not constitute a seizure unless it prolongs the stop. Muehler involved questioning during a building search, and this involved a traffic stop, on a road, in the night, with traffic whizzing past. The 9th finds no distinction. The 9th sidesteps (or steps over) the constitutional issue of questioning based tattoos and ethnicity (i.e. The Latin Kings) because the stop itself (8 minutes) was not prolonged. The 8 minute stop turned into a 57 month sentence. The 9th upheld the district court's findings of the time, and the fact that the police were not in fact dillydallying, or lying, as not clearly erroneous.

US v. Cruz-Escoto, No. 05-50892 (2-23-07). The 9th (Siler joined by Bea) affirms a 1326 conviction against challenges for insufficiency, instructions, jury selection, Batson, and exclusion of witnesses. The defense was of "official restraint" and the argument was that the geography of the land, with a channel leading past the Border Patrol, rendered the defendant always under the watchful eyes of the government. He asked for such an instruction, and the court denied. The 9th found that it was proper, but Tashima, dissenting, argues strongly that there was sufficient evidence to trigger such an instruction and it should have been given.

Case o' The Week: The Right is right, Blanton & Double Jeopardy

Those who complain that a panel's political persuasion drives its results should read Judge O'Scannlain's (Right) decision in United States v. Blanton, __ F.3d __, No. 05-50302, Slip. Op. at 1755 (9th Cir. Feb. 12, 2007), decision available here. (Joined by Kozinski and Bybee). In this very good opinion, this "conservative" panel holds that Double Jeopardy bars the government's appeal of a Rule 29 motion -- even if the district court got the legal standard wrong!

Players: Big win by AFPDs Dean Gits and Carl Gunn.

Facts: Blanton was convicted of § 922(g), felon in possession. Id. at 1760. In a second (bifurcated) trial proceeding the government introduced proof of priors – including juvi adjudications – to establish ACCA. Id. The defense moved for a Rule 29 acquittal: the district court granted it under Tighe and Blakely (based on the fact that the juvi adjudications were not tried before a jury). Id. The government appealed. Id. at 1761.

Issue(s): We must determine whether the Fifth Amendment’s Double Jeopardy Clause prohibits the government from appealing a district court’s allegedly erroneous denial of an Armed Career Criminal Act sentencing enhancement.” Id. at 1759.

Held: "[W]e agree with Blanton that the district court resolved the issue of guilt or innocence in his favor, and that the Double Jeopardy Clause bars this appeal . . . It is immaterial whether the district court’s interpretation of the relevant legal issue was correct . . . .Under 18 U.S.C. § 3731, therefore, the government is without authority to appeal.” Id. at 1767.

Of Note: There are two good, big-picture principles in Blanton:

1. Jeopardy attaches at a successful Rule 29 motion – even if the district court got the law wrong. Does this embolden or discourage a trial judge faced with a Rule 29? Guess it depends on the district court.

2. Apprendi enhancement facts that increase statutory maximum sentences (be they “elements” or “sentencing factors”) are weighty enough to trigger Double Jeopardy protections. Id. at 1766-67.

Note also the panel: Kozinski, O’Scannlain, and Bybee (not big Jon Stewart fans). This very good opinion is as en banc and cert. proof as they come.

How to Use: In a San Francisco trial an AUSA once complained that the defense sandbagged her by filing a huge Rule 29 motion mid-trial. “Well,” observed Judge Chesney, dryly, “sufficiency of the evidence motions usually follow the government’s admission of the evidence.” Blanton lays this out clearly: it rejects the government’s (remarkable) whine that the defense didn’t bring its Rule 29 motion until the close of the government’s case. Id. at 1765. Use Blanton to fend off complaints that the defense wasn’t timely in bringing a big Rule 29 challenge.

There’s also an interesting discussion explaining that there is no summary judgment motion in criminal trials. Id. at 1765. This language would be helpful in letters to those (not-infrequent) clients who don’t want to go to trial, but who nonetheless demand that magic pretrial motion to dismiss for insufficiency of the evidence.

For Further Reading: There’s a lot of back story to Judge O’Scannlain’s analysis in Blanton. A key case underlying the opinion is United States v. Tighe, 266 F.3d 1187 (9th Cir. 2001). In that case, the Ninth held that a juvenile adjudication does not constitute a prior conviction under the Apprendi exception (at least, in the context of the ACCA). This little area of law has fostered a circuit split: as reported by Professor Berman, the Eleventh Circuit was unpersuaded by the Ninth’s take. See blog here. The Eleventh isn’t the only skeptic. For a detailed discussion of the circuit split on juvi priors (3rd / 8th & 11th vs. 9th & Harvard Law Review), see the InCourts blog here.

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


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US v. Blanton, No. 05-50302 (2-12-07). The 9th (O'Scannlain joined by Kozinski and Bybee) held that double jeopardy bars the government from appealing a district court's allegedly erroneous denial of an ACCA enhancement. The defendant tried the ACCA issue to the court, arguing that two prior juvenile convictions could not be considered as triggering enhancements. The court found it could, but under Blakely, held that the government had not proved it to a jury. The Rule 29 motion was granted. The 9th ruled that the government's appeal was prohibited. The 9th recognized that the distinction between elements and sentencing factors have blurred, and the inquiry here is whether the gov't presented facts to prove the enhancement sufficiently. They had not. The district court's ruling related to guilt and innocence.

Congrats to AFPDs Carl Gunn and Dean Gits of the C.D. Ca (Los Angeles) for the win.

US v. Hernandez, No. 05-50920 (2-14-07). The 9th stresses that a defendant gets a lesser jury instruction on possession if a rational jury could so find. The defendant was stopped at the border and found with 111+ grams of pure meth. The government argued that the defendant presented no evidence of personal use, and the court agreed, stating, in effect, that the defendnat would have to testify or present some evidence. The 9th unequivocally said "NO!" The burden is on the government, and it was up to them to present evidence that 111+ grams were not for personal use (hey, it pays to buy in bulk, See Costco). The defendant could so argue. This case did not present evidence that made personal use irrelevant, like having a meth lab in the house, or kilos and kilos of cocaine. The 9th also found that the court's admission of a defendant's silence to an officer's questions as to whether the package was meth was error. The defendant was in custody, and silence could not be used against him. The error was harmless. The 9th (Gould joined by Pregerson and Clifton) rejected the sentencing claims.

Congrats to Jim Fife of the San Diego Federal Defenders for the win.

Thorson v. Palmer, No. 02-17359 (2-15-07). This is another "too late so sad" decision (Canby joined by Noonan and Paez). The 9th found that the petitioner's federal habeas was not tolled. Petitioner's state habeas was ultimately deemed untimely by the California Supreme Court, and so he not entitled to tolling for the time his untimely petition kicked around state court before the final decision. This was a successor petition.

US v. Flores-Sanchez, No. 06-10026 (2-15-07). The 9th (Goodwin joined by Tashima and W. Fletcher) hold that under the recent Supremes decision in US v. Resendez-Ponce, 127 S.Ct. 782 (2007), the indictment alleging "attempt" carries with it an implied allegation of an overt act in furtherance of the charged attempt. It meets the requirements of Fed R Crim P 7. There was also no Speedy Trial violation because defendant went to trial one day after the superseding indictment, as the clock starts ticking when the defendant appears with counsel under Rojas-Contreras, 474 US 231 (1985). The sentencing claims were rejected.

US v. Ross, No. 06-30204 (2-8-07). Defendant was convicted of making a false statement. The false statement related to acquiring a firearm (previously defendant had been discharged from the military after trying to mail a machine gun home to Dad). Defendant had been active in neo-Nazi white supremacist circles and had come to the attention of law enforcement. As a SR condition, the court ordered that defendant not associate with neo-Nazi white supremacist members or similar organizations. Defendant appealed, arguing vagueness, constitutional rights, and that the condition was not a reasonably related to the purposes of SR. The 9th (Rymer, joined by Tallman and Brezon) affirmed. Such groups tend to engage in criminal activity (conceded by counsel) and that as reasonably construed, the condition related to defendant's rehabilitation and protection of the public.

Nguyen v. Garcia, No. )5-56596 (2-9-07). The 9th (Bea joined by Tashima and Siler) held that under AEDPA, a state court's decision that a defendant's silence after arrest could be used in a pretrial competency determination. Wainwright, 474 US 284 (1986) held that silence could not be used in an insanity trial to attack the defense. A competency determination, reasoned the court, was different and the state court was reasonable in so deciding.

US v. Sales, No. 06-50219 (2-9-07). The 9th (B. Fletcher joined by Fernandez and Graber) agreed with defendant that special conditions of SR were unreasonable. Defendant was convicted of counterfeiting. he used a scanner and a computer to produce bills. The conditions of SR required, among other things, that he seek permission to use any computer device and that he submit all bills and alcohol/drug treatment. The 9th upheld the alcohol/drug treatment because of some history of substance abuse in his background, but struck down the all inclusive seek-permission-from-PO requirements as unreasonable given the relativity simple computer skills required for the crimes, the all-inclusiveness of the requirements, and the head-scratching "why".

Congrats to AFPD Jill Ginstling, C.D. Ca (Los Angeles) for the win.

Case o' The Week: "Why bother with a Judge?," concludes Ninth in Morales-Izquierdo

Judge Dredd (left) is a classic comic, and lousy movie, where the futuristic protagonist is cop, prosecutor, and judge, all rolled into one. Sort of like the "low-level Department of Homeland Security employee who served as both prosecutor and judge" in this case. Thomas, J., dissenting at 1415. In Morales-Izquierdo, Judge Kozinski writes for the en banc court and holds that a Department of Homeland Security officer can reinstate removal of an alien, without taking the alien before an immigration judge. Morales-Izquierdo v. Gonzalez, __ F.3d __, No. 03-70674, Slip. Op. at 1389 (9th Cir. Feb. 6, 2007), opinion available here.

Players: Kozinski authors; Thomas writes for the dissent.

Facts: Morales was removed to Mexico several times, re-entered, and married a US citizen wife. Slip op. at 1395-96. When he and his wife tried to adjust his status, an immigration official served him with notice to reinstate his removal order under an immigration code – and CFR – that permits reinstatement without judicial review. Id. at 1396. A three-judge panel held that reinstatement could only be imposed by an IJ. Id.

Issue(s): “When an alien subject to removal leaves the country, the removal order is deemed to be executed. If the alien reenters the country illegally, the order may not be executed against him again unless it has been ‘reinstated’ by an authorized official. Until 1997, removal orders could only be reinstated by immigration judges. That year, the Attorney General changed the applicable regulation to delegate this authority, in most cases, to immigration officers. We consider whether this change in regulation is valid.” Id. at 1394.

Held: “We conclude that a previously removed alien who reenters the country illegally is not entitled to a hearing before an immigration judge to determine whether to reinstate a prior removal order. The reinstatement statute and its implementing regulation comport with due process, and [the] C.F.R. is a valid interpretation of the INA.” Id. at 1413.

Of Note: As blogged two years ago here, the original Morales-Izquierdo decision was a great opinion for the defense of illegal reentry cases. Unfortunately, the case bucked four other Circuits that had held the opposite. Id. at 1397. Nonetheless, Judge Thomas here presents a spirited and compelling dissent, attacking the abrupt new course of Homeland Security after 45 years of contrary practice, and questioning the constitutionality of a procedure employed by “low-level” immigration officials to arrest unsuspecting aliens that come in with their spouses to adjust status. Id. at 1428. (Like the facts of this case – terrifically unfair).

How to Use: Is a “reinstatement” a removal that can be used for a § 1326 prosecution after Morales-Izquierdo? Can agg felonies before reinstatements be used to jack up sentences under USSG 2L1.2? No, no, no (we think). San Jose AFPD Lara Vinnard has put much thought into these issues. She notes Kozinski dodges due process concerns arising from this dubious immigration procedure, by reassuring us that “[t]he reinstatement order imposes no civil or criminal penalties, [and] creates no new obstacles to attacking the validity of the removal order . . . .” Id. at 1412. Let’s hold him to his word – a § 1326 prosecution certainly is a criminal penalty, Morales-Izquierdo now holds that reinstatement orders impose no criminal penalties, therefore reinstatements should not be serve as bases for illegal reentry cases.

Moreover, Kozinski emphasizes that reinstatement can happen after involuntary or voluntary departure. Id. at 1408 & n.14. A voluntary departure, however, cannot be a basis for illegal reentry prosecution. United States v. Ortiz-Lopez, 385 F.3d 1202, 1204 & n.1 (9th Cir. 2004). By logical extension a reinstatement should not be permitted to be used for illegal reentry prosecutions. We’ll be litigating this, and soon: recent A-files have contained INS agent entries referring re-entered aliens to IJ’s, instead of reinstatement procedures, “because of a recent Ninth Circuit decision.” With that decision now reversed, anticipate more § 1326 cases resting on this unfair immigration procedure.

For Further Reading: Some thought that when the Ninth went to the 15-judge en banc panels in 2006, it would chill en banc calls. Hasn’t worked out that way. In 2006, there were 25 en banc orders – the highest in decades. See article here. There were nine orders in roughly one month – all in criminal or habeas cases. Id.


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

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US v. Valle-Montalbo, No. 05-50876 (2-2-07). A state conviction for "possession off meth for sale" under Calif. Health & Safety Code 11378 is a "drug trafficking offense" under a categorical offense analysis for purposes of 2L1.2(b)(1)(A).

US v. Ingham, No. 05-50698 (2-6-07). This is a conspiracy sentence appeal with the focus on the enhancement of 4 levels for being an organizer or leader. Defendant argues that the test for such an enhancement is whether the defendant was both an organizer and leader. The 9th (Gould joined by Pregerson and Clifton) holds that the test is actually in the disjunctive under Avila, 95 F.3d at 890. The evidence here supported the organizing prong, and the court made the appropriate findings. The 9th also rejected the challenge to hearsay in sentencing.

US v. Lopez, No. 05-50616 (2-5-07). The 9th affirms a conviction (Gould joined by Pregerson and Clifton) for possess of meth for distribution,finding that the federal law enforcement agents nor the AUSA acted with vindictiveness in bringing charges when the defendant failed to cooperate. The state charges were not tied to the federal charges, the state attorney forgot about the agreement to drop the state charges when the indictment came down, but this was not enough to conclude a plan to punish for asserting rights, and the statements that he was looking at serious time could not be construed at vindictiveness.

US v. Milwitt, No. 05-10344 (2-5-07). The 9th (Thomas joined by Hawkins) reverse a conviction for bankruptcy fraud for sufficiency of evidence. The defendant held himself out as a landlord-tenant lawyer and took monies from tenants to settle disputes with their landlords. Defendant was not a lawyer, and did not really help. He got a state sentence for illegal practice of law. As he walked out of the state prison, he faced a bankruptcy fraud charge. It seems he filed bankruptcy petitions on behalf o the tenants without their knowledge. The bankruptcy provision he was charged with focused on "creditor" rights under 18 USC 157. There had to be specific intent that creditors (landlords) would be prejudiced or defrauded. The government's case though focused on the poor tenants and how they got hoodwinked. The jury instructions drew the attention back to the landlords, based on the indictment, but most of the evidence went toward the tenants. Indeed, the landlords seemed to be slumlords, with a despicable record that may well have justified withholding of rent. The 9th held that the government failed to present evidence that this was a scheme to defraud the landlords; rather, the scheme was to hide the fraud from the tenants. In dissent, Wallace argued that the highly deferential sufficiency standard was met with the evidence of who would be left without the rent.

Case o' The Week: Ninth's DisDaane for Fraud Victims' Self-Help, United States v. William Daane

While taking justice into one's own hands is a great tradition in the Great West, the Ninth doesn't buy it in the fascinating Daane decision. United States v. Daane, __ F.3d __, No. 05-50282, Slip. Op. at 1195 (Ninth Cir. Feb. 1, 2007), decision available here. The opinion creates little new law of interest, but is worth the read simply because the facts sound like a movie treatment.

Players: Rawlinson authors.

Facts: Leslie Darwin Murdock was a fraudster who caught many folks (including Daane) in a multi-million dollar Ponzi scheme. Id. at 1199. Investor Trent, with Daane’s help, demanded repayment from Murdock; they didn’t get far. Id. at 1201. Eventually Daane and the co-Ds drove to Pasadena with draw ties, duct tape, gloves, and guns to “duct tape [Murdock’s] feet, put him in a car, and take him out to the desert.” Id. at 1201. When they found Murdock fleeing down the street, over a two-way radio Daane exclaimed, “The rabbit’s on the run.” Id. at 1202. The defendants grabbed the fraudster, a struggle ensued, the police arrived, and all were arrested. Id. William Daane and his co-Ds were charged with attempted interference with commerce (Hobbes Act) and traveling in interstate commerce for the purpose of extortion. Id. 1199. The district court refused to instruct the jury on the defendants’ “claim of right” instruction. Id. at 1198.

Issue(s): “[A]ppellants argue that the district court erred when it rejected their proffered “claim of right” instruction. In particular, appellants assert that they had a rightful claim to the funds in Murdock’s possession and therefore their actions were not ‘wrongful’ as required for extortion.” Id. at 1205-06.

Held: “[W]hatever the contours of [the claim of right] defense may be, they do not reach extortions based on threats of physical violence outside the labor context. [Y]ou cannot beat someone up to collect a debt, even if you believe he owes it to you.” Id. at 1207 (quoting United States v. Castor, 937 F.2d 293 (7th Cir. 1991)).

Of Note: Not surprisingly, Daane’s plight works better as a jury nullification argument than as a legal defense to extortion charges. It is interesting, though, that there has been an exception carved out for non-violent labor disputes – a vestige of the union battles of old. See id. at 1206 (discussing relationship between Hobbs Act charges and collective bargaining disputes).

How to Use: Maybe there is a very thin distinction in this case, because the defendants got greedy – they demanded $1.3 million more from fraudster Murdock than they had lost. Id. at 1208. Judge Rawlinson seizes on that fact to say that the jury instruction sought wasn’t factually warranted. Id. Nonetheless, even with that factual distinction it would be hard to dodge the precedent rejecting the use of violence in a “claim to right” defense. Id. at 1207. The best use of the case is to give it to fraudster clients, and remind them that federal charges aren’t the only dangers that arise from Ponzi schemes . . . .

For Further Reading: Murdock was the “mastermind of a $26 million pyramid scheme.” See article here. He duped over 600 investors, and was ultimately sentenced in federal court to almost ten years in custody and $13 million in restitution. Id. He was allowed to self-surrender late, to see his son play in a baseball tournament. Id. District Judge Timlin observed at sentencing that Murdock’s “comments suggest he doesn't understand the depth of his criminal conduct.” Id.

According to his J&C, William Daane (lead defendant in this case) was sentenced to eighteen months of custody and two years of supervised release.


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


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US v. Daane, No. 05-50282 (2-1-07). "Its my money and I want it back" is a request that, in various forms, is made frequently in person, over phones, via the internet, and in lawyers' letters. Taking the money, if it is indeed yours, is not theft but can be considered the "claim of right" defense. Unfortunately for the defendants here, using force when making such claims, and having that force involve guns, threats of physical harm, and chases, prevents the validity of the claim, and, in context here, allows the court to REJECT the JURY INSTRUCTION for such a claim. Such a claim here was not supported by law or facts.

Butz v. Mendoza-Powers, No. 06-71137 (2-1-07). Dismissal of a petition for failure to pay filing fees or comply with the court's orders is not a ruling on the merits, and a Rule 60(b) motion challenging the dismissal is not treated as a second or successive petition.

Edwards v. LaMarque, No. 04-55752 (2-1-07)(en banc). The 9th, sitting en banc, reverses a district court's finding of IAC. The issue revolves around whether counsel's asking questions of the petitioner that waived his marital privilege was ineffective. The questions focused on conversations about a killing, to the effect that "you don't have to worry about him again." The district court found that counsel's questions about conversations damaged the petitioner, served no purpose, could and should have been avoided, and were prejudicial. The en banc court, adopting the deferential standard of review under AEDPA to state findings, held that it was a tough case, and that counsel was trying to walk a fine line, and so there were tactical and strategic reasons for the line of questioning. The court (Hawkins) stressed that the review is not de novo, but whether the state court's holding was reasonable. Graber concurred in the result. She agreed that counsel blundered with his understanding of the marital privilege, but sided with the majority because of the deferential standard. Dissenting, Fisher, joined by 4 others, vigorously argued that trial counsel was totally inept, made elementary evidence errors, had no idea of the scope of the marital privilege, and his ineffectiveness undercut any supposed tactical decisions. The dissent would find the state court's affirmance objectively unreasonable.