US v. Yida, No. 06-10460 (8-16-07). The 9th upholds a district court's exclusion of the former trial testimony of a witness in the retrial of the defendant. The government allowed the witness to be deported to Israel (truly next year in Jerusalem) when he gave assurances that he would return. He did not. He stated that health problems prevented him; the government's assurances they would pay for travel, hotels, and medical were to no avail. When the government sought to use his tetsimony in the second trial, the defendant objected, and the court granted the preclusion. The 9th's affirmance (Gould joined by Smith and Covello) focused on FRE 804's unavailability requirement and the government's need to use all "reasonable means" to "procure the declarant's testimony." The government, although not acting in bad faith, did not do what was reasonably necessary when the defendant was here to secure his availability for the next trial, and just bringing in the testimony was insufficient. Gould, who authored the majority, also penned a concurrence emphasizing the constitutional stakes of confrontation, and that interpretation gives added weight to the statutory spin.

Congratulations to AFPD Josh Cohen of D. N. Ca. (San Francisco) for the win.

US v. Hernandez-Acuna, No. 06-10173 (8-16-07). A district court judge rejected a magistrate's recommendation to suppress evidence without conducting his own evidentiary hearing. The defendant argues this violated due process. The 9th (Rymer joined by Thompson and Fisher) sidestep the issue. The magistrate had suppressed a stop of a sedan for supposedly driving in tandem with a truck containing marijuana. Officers had testified as to their observations of the driver and passenger as appearing rigid and of their driving habits. The magistrate found no reasonable suspicion. The district court rejected the recommendation to suppress without a hearing. He found, under the facts developed, there was reasonable suspicion under the totality of circumstances. At trial, the same officers testified, and defense counsel moved for suppression. The 9th was troubled with the rejection without a hearing, although noting that no credibility finding was made, there had to be implicit suggestions of doubt. Nonetheless, because of the "replay" at trial, and the opportunity to hear the officers, defense counsel raised the issue directly. As such, there is no reason for a remand for another evidentiary hearing.

US v. Lambert, No. 07-30060 (8-16-07). The 9th (Hawkins, Alarcon, and Wardlaw) affirm the sentencing enhancement under 2B1.1(b)(8)(A) for the defendant's misrepresentation that he had submitted grants on behalf of a tribe's Education Dept. The defendant had argued that the fraudulent grants he submitted on the Education Dept's behalf were written under his own name, and not on behalf of the Education Dept. He received $12,000 for his fraud. The acts of defendant were under the guise of representing the education dept of the tribe, even if he used his own name, and so fell under the guideline.