US v. Juvenile male, No. 06-30587 (7-5-07). The 9th, per curiam, vacates the district court's decision to transfer a juvenile defendant because of clearly erroneous factual determinations. This is the second time (the first remand was because the court felt it had to consider that the defendant was guilty; such a conclusion is discretionary). In this second proceeding, the defendant again faces a charge of 2nd degree murder. He was over 15 at the time, it was a violent felony, but the transfer revolves around whether the transfer would be in the interests of justice. The court made a factual ruling, in transferring, that the defendant had never been a victim of domestic violence which was completely wrong. Moreover, the court made some judicial observations regarding other juveniles and other programs in BOP that were outside the record and inappropriate. The case gets remanded yet again.
Congratulations to AFPD David Ness of the Federal Defenders of Montana.
US v. Ensign, No. 06-10447 (7-5-07). The 9th affirms the district court's denial of an out-of-district lawyer to appear pro hac vice in this failure to file case. The counsel had been appointed as co-CJA counsel under a catch-all provision given the complexity of the case, but certain Bar improprieties were brought to the court's attention by the government. The court held a sealed hearing as to the proceedings taking place in the State Bar of Arkansas. The court then relieved counsel of his co- CJA appointment. He then sought appointment pro hac vice. The court denied this request, citing the possibility of Bar discipline in Arkansas and other reasons. The 9th affirmed the denial as not being an abuse of discretion. Moreover, the Sixth Amendment did not compel appointment because the defendant was represented by court appointed counsel, and she was not entitled to counsel of her choice when there is appointed counsel irrespective of the questions raised by out of district counsel.
US v. Forrester, No. 05-50410 (7-6-07). A pretty simple rule can be derived from this Farretta case: self-representation must knowingly and intelligently waive counsel, which includes being informed of the charges, sentence, and the dangers of self-representation. The district court missed two out of three. The court failed to inform the defendant of the "nature of the charge" (conspiracy) and misstated the sentence he was facing. The 9th (Fisher joined by Clifton and Smith) easily dismissed the government's harmless error argument, and vacated and reversed. As for the co-defendant, the 9th affirmed his conviction, holding that there was no expectation of privacy or searches in the goverment's computer surveillance of the IP addresses. Content was not searched; just addresses where the messages were sent.
US v. Ruiz-Chairez, No. 05-10226 (7-6-07). The 9th (Schroeder joined by Trott and Moskowitz) held that 2L1.2 (illegal reentry sentence) does not violate the equal protection clause. The Congress can act to enforce immigration laws; and the increasing of a sentence for prior offenses has a rational basis. The 9th noted that other offenses are punished less severely but writes that the argument misses the point, because this heightened sentence is not irrational.