US v. Lopez, No. 06-10062 (2-27-07). Tough facts for the defense in this case. The police responded to 911 call about the defendant brandishing a gun and driving away in a van. The police pulled alongside the van, and saw the defendant lean over as if he was placing something under the seat. When the van stopped, defendant got out, refused commands in English and Spanish to stop, and ran. He was caught. While being subdued, a purse fell out that contained $2840.25 in cash, including 63 $20 bills. The defendant was found to be a previously convicted felon, and an illegal alien. Oh yes, he also explained that the money came from house painting and casino winnings and belonged to his wife. He couldn't corroborate any of this, nor give his wife's address. He also said something to the effect that"if you don't find the gun, you have nothing on me." Well, they did find the gun. It was under the passenger seat. They also found cocaine in various small amounts. Defendant said the van was his, but not the gun nor the drugs. The 9th found there was sufficient evidence to convict, for distribution because of the nature of the drugs, the amounts, and the money. An expert testified for the government that it fit a pattern. The court also committed no error in its instruction of "in furtherance" when it came to the gun. There was also no error in failing to sever the "illegal alien" charge and the firearm charge from the drug charges.

US v. Vartanian, No. 05-10581 (2-28-07). This is an appeal from tax fraud convictions. The appeal turns on whether the district court abused its discretion in dismissing a juror from service. The dismissed juror in this case -- Juror 7 -- was found to have engaged in inappropriate conduct: she was seen speaking with defendant's family, made a statement to defendant's sister that "things will be all right", called out to counsel and defendant in the cafeteria line "buy us some coffee too," and other conduct. The court also noted that she engaged in "bizarre" behavior like bombarding the court with questions and bringing chocolates to the court reporter and insisting that she take them. The court found that the juror had engaged in questionable behavior and that she should be dismissed for good cause. The 9th affirmed, noting that the dismissal was not based on her deliberations or stance, but on conduct outside the jury room, for which she had been warned, and which was corroborated by witnesses.

US v. Alvarez-Hernandez, No. 06-10284 (2-28-07). The 9th (Bybee joined by Kleinfeld and Whaley) held that in a 1326 sentencing, a drug sentence which was fully suspended and probated only gets the 12 level enhancement and not the 16. The district court had given the 16-level enhancement, finding that the sentence imposed was different from a sentence of imprisonment. The 9th looked to the 2003 Sentencing Commission amendments and stated that the plain language of the amendment made it clear that an imposed sentence was to be given the definition of a sentence of imprisonment, and that statutory construction had to prevail. This made a difference in sentencing, and so the case was sent back.

Congrats to AFPD Mike Powell, D. Nev (Reno) for the win.

US v. Sadler, No. 06-10234 (3-1-07). Fed. R. App. 4(b) is determined not to be jurisdictional in nature. Rather, this rule setting timeliness of notices of appeal is a claim-processing rule subject to forfeiture. Bottom-line: defendant still loses for late filing of appeal. The 9th (Berzon joined by D. Nelson, and concurred with by Bright) considers the nature of Rule 4(a) and (b). Rule 4(a) is civil, and even after the Supremes ruled that they might be mandatory claim processing and not jurisdictional, the issue is still open. The 9th holds that Rule 4(a) is jurisdictional as for civil, because Congress set the limits by statute. Rule 4(b) though has no statutory basis; only rule. Still, although it isn't jurisdictional, dismissal may be mandatory under a claim processing analysis, although it could be forfeited. It wasn't here because the government objected in its responding brief and moved for dismissal. The argument was not forfeited by waiting until the responding brief. The upshot is that while Rule 4(b) is not jurisdictional (bright line), its mandatory nature still results in dismissal if late. Bright's concurrence relates what it takes for forfeiture, and that it wasn't an issue here. Practice point: file that Notice of Appeal ASAP.

US v. Kelley, No. 05-10547 (3-1-07). The 9th considers probable cause in a warrant for searching a computer. The 9th emphasizes again that it is a totality of circumstances approach, looking at all the factors, and is not a bright-line analysis of certain requirements when it comes to computers and transmissions. Here, the district court suppressed the pornographic images because there were no affirmative steps to show that the defendant had intentionally received the nine photos. The evidence was that a known child porno contact had sent e-mail to defendant's addresses, and defendant had transmitted the e-mails on, with images. This was enough for Rymer, joined by Justice (Ret.) O'Connor, who hold that the evidence here indicates the defendant probably knew that it was porno, and willingly received it and sent it on. In dissent, Thomas stresses that precedent required an affirmative act, positive steps, that indicate that the recipient knew it was porno, and not just receiving and transmission. Given the Spam traffic, and the misleading headers, more would seem to be required than unsolicited receipt and transmittal.