US v. Murphy, No. 05-50608 (4-18-07). Squabbling notes come out from a jury, with the foreperson saying one juror won't deliberate or listen. The case was a 1001 false statement. Defense counsel (!) stipulates that the one juror be removed and that the jury continue with 11. The juror is dismissed, but leaves a note, which states why she is holding out for acquittal, discussing evidence, reasonable doubt, and a sense that any false statements were at most inadvertent. Defense counsel tries to say "oh no, this is a terrible mistake," but it is too late and the inevitable conviction comes. On appeal, the 9th (Clifton joined by Rymer) hold "too late, too bad." Counsel agreed to proceed with 11, when the first notes indicated stubbornness and a refusal to deliberate, and it was a strategic decision. It did not implicate the right to a unanimous jury. Dissenting, Gibson (from the 8th Cir), says "Whoa, it does implicate the right to a unanimous jury." There was misinformation, and the note from the juror clearly indicates that she was holding out in good conscience. He would vacate and remand for a new trial.

Obvious Lesson Learned: don't ever agree to having the hold-out dismissed.

US v. Leonard, No. 06-30127 (4-18-07). The 9th (Clifton joined by Farris and Bea) declares open season on supervised release sentencings. The defendant was on SR here, and violated most conditions. The court declared him a total failure on SR and sentenced him to the max of 24 months. This was way above the advisory guidelines in Chapter 7 for SR violations. On appeal, defendant argued that eh should have gotten notice. "Why?", the 9th rhetorically asks. The defendant knew what the max was, and the Chapter 7 policy clearly stated that the guidelines were advisory. Moreover, if the 9th doesn't require notice of sentences above the range in probation violations, a court doesn't have to do it for SR violations. They are akin. Of course, the 9th looks to 2d, 5th, 8th and 10th circuits. The 9th does acknowledge that this holding could seem to conflict with its holding in Evans-Martinez, 448 F.3d 1163 (9th Cir. 2006), that an upward departure notice is still required even after Booker. How does the 9th resolve this? First, it says that Evans-Martinez does not explicitly overrule prior probation sentence precedent (sure, why not have the form take precedence over the spirit); and SR sentences are under Fed R Crim P 32.1 which does not have an advanced notice requirement (ah, due process is brushed aside again).

US v. Thrasher, No. 05-35929 (4-18-07). The 9th (Wallace joined by Gould) holds that under a limited remand, the decision by counsel not to call a witness, after mentioning her in opening, was not IAC. This decision was reached after an evidentiary hearing. The district court refused to look at other issues, which the 9th said was proper under the limited remand doctrine. It indicated that it may have been quasi-jurisdictional. Berzon, concurring, takes issue with characterizing the limited remand as jurisdictional as situations may develop that widen the scope.

US v. King, No. 05-10629 (4-18-07). The 9th (O'Scannlain joined by Beezer and Trott) finds no Speedy Trial violation when the superseding indictment added a co-defendant, and then there were excludable periods.