US v. Sandoval, No. 06-30370 (5-23-07). The 9th (per curiam) affirms the use of a state court abstract for the discrete question of the length of the prior sentence imposed. The court did not use the abstract to guess at the nature of the conviction, which the 9th has held to be impermissible under Navidad-Marcus, 367 F.3d 903 (9th Cir. 2004). An abstract can be used, with charging documents, to see if a prior conviction qualifies as an aggravated felony under Valle-Montalles, 474 F.3d 1197 (9th Cir. 2007). The use of the abstract here was not an assessment of the prior, or a look at its nature; it was for the sentence imposed. The 9th also brushed aside an objection to the court's order for fingerprint exemplars.

US v. Jeremiah, No. 06-10397 (5-24-07). In a SR appeal, the 9th decided it did not have to decide whether a probation officer's swearing for a request for a warrant did or did not include the supporting facts. The reason was that the defendant was found in violation, and a conviction cannot void the arrest here. This differs from Vargas-Amaya, where the warrant and arrest was affected after the SR ran because here, the defendant was still under SR. The failure to conduct a PH was also waived because it was not raised before the district court at the admit/deny hearing. There was sufficient evidence for a violation finding although the evidence was open to interpretation. Finally, the 9th upheld the conditions and times of drug testing as the court set the number, and was appropriate.

US v. Curtain, No. 04-10632 (5-24-07). Sitting en banc, the 9th (Trott) reverses and remands a conviction in a child "traveler" case on the basis of the court failing to properly conduct a FRE 403 balancing test. The defendant here was ensnared in a sting operation with an undercover agent posing as a 13 or 14 year old girl. The defendant traveled to meet her. His defense attacked the specific intent, arguing was that this was all fantasy, and he was hoping that she was an adult woman who was also play acting. To rebut this, the government introduced reading material he had in his possession, some five pornographic stories that dealt with underage initiation into sex. The district court read two stories, tied their admission to intent, and allowed the stories in. He did not read all the stories for a 403 balancing test. All 15 judges agreed that the 403 analysis was flawed because the district court had to read all, and assess how unduly prejudicial they were (one unread story, for example, had bestiality involved). In the majority opinion, the 9th rejected any blanket ban against admission of legal reading or first amendment material to prove intent. Such a ban is unnecessarily broad. The opinion reviews the various circuits, and finds that in specific cases, with specific facts, and with specific defenses, such admission may be proper. It still must be balanced. Moreover, the 9th cautioned against a wide-open interpretation; it must be narrowed and tied. An example was a book about the great train robbery and a case involving theft from a train with similar details and circumstances. As for 403, the district court must review all the evidence and weigh and balance. That was not done here. In a number of concurrences, with strange bedfellows (Kleinfeld, Kozinski, Pregerson, Thomas and Berzon), concern was expressed at whether the issue had to be even decided (Wardlaw), or whether prior precedent could be taken as a ban (it was not) and that First Amendment concerns had a place in the analysis. Fantasy is not illegal.