US v. Sine, No. 05-10575 (5-1-07). The 9th decides that a district court's description of defendant Sine's sin was reversible error. The 9th (Berzon joined by B. Fletcher and Trager) consider the appeal of a lawyer who engaged in a complex, complicated, and completely fraudulent pyramid scheme. As the pyramid started to collapse, he started to concoct a "good faith" defense. In a move tantamount to crying, "Look, the pyramid is falling, what a surprise!", he began to file lawsuits around the country attacking those who recruited for failing to put up enough collateral. A district court judge dismissed the suit, held him in contempt, and in the proceedings and order denounced the defendant as deceitful and other unkind characterizations. The prosecutors in the E.Dist. Ca. used that order and findings in their case, and in cross examination. On appeal, the prosecutors argued that the good faith defense opened the door. The 9th slammed that argument shut. The 9th held use of the judgment and order was error, and pretty bad error on hearsay FRE 403 grounds. Indeed, the 9th stresses that "Such use of the judge's statements was highly improper. It both unfairly prejudiced Sine and introduced impermissible hearsay into the trial." Alas, the defendant never objected! So, although there was error, in light of the overwhelming admissible evidence, it was harmless.

Note the nice literary touch: "[W]hile prosecutors are not required to describe sinners as saints, they are required to establish the state of sin by admissible evidence unaided by aspersions that rest on inadmissible evidence, hunch, or spite." Quoting US v. Schindler, 614 F.2d 227, 228 (9th Cir. 1980).

US v. Ray, No. 06-30466 (5-3-07). The 9th holds that Booker has no effect on the revocation of supervised release. Booker does not set the stat max at the applicable guideline range for subsequent violations. The 9th (Tashima joined by B. Fletcher and O'Scannlain) join all the other circuits in so holding. Moreover, this decision comports with recent the circuit's recent precedent concerning sentencing for probation and SR violations without being restricted by previous guideline ranges.

US v. Bibler, No. 06-30375 (5-4-07). At sentencing on a plea bargained drug case with a mandatory minimum, the district court held that the safety valve did not apply post-Booker. This was wrong. The 9th has held that the safety valve, being legislative under 3553(f) does apply. See US v. Cardenas-Juarez, 469 F.3d 1331 (9th Cir. 2006). The defendant, however, had entered into a plea agreement in which she waived her appellant rights. The 9th here (B. Fletcher joined by Tashima and O'Scannlain) said "too bad." The defendant waived and so the 9th lacks jurisdiction. The fact that the district court legally erred does not make a sentence illegal. The defendant should have kept appellant rights on this issue.

THIS SHOULD BE A WARNING. The government insists on appeal waivers in most cases. Before one agrees, recognize this is broadly construed. Use this case to point out why one may need an exception for safety valve, or other adjustments. Defendants cannot depend upon the kindness of courts.