Friday, September 28, 2007

Bockting v. Bayer, No. 02-15866 (9-27-07). The 9th affirms a denial of a habeas. The issue revolves around the admission of a child's testimony in a child rape case under Idaho v. Wright, 497 US 805 (1990) and Ohio v. Roberts (Crawford has no retroactive application). The child gave statements to the mother and detective, and then became "frozen" on the stand, and said very little. The original conviction was affirmed by the state supreme court (Nevada) and then the Supremes remanded in light of Wright. The state supreme court again affirmed. Petitioner argues that the decision, even under Wright, was an unreasonable application of federal law and unreasonable as to facts. The 9th (Wallace joined by McKeown) rejected the unreasonableness, holding that the state supreme court's determination of the law and facts were reasonable. Dissenting, Noonan derided the state supreme court's analysis as mechanical and fact-finding as unreasonable.

US v. Bussell, No. 06-50088 (9-27-07). This deals with how to determine losses in bankruptcy fraud. In this case, the defendant is a practicing dermatologist and her husband a cardiac anaesthesiologist. Yet, both had millions in debt. They concocted a scheme, with lawyers, to play a shell game with assets and income. The shell game was exposed, the lawyers flipped in plea deals, and the defendant was left holding the bag, or at least the bankruptcy petition. On appeal, her main argument was that loss should be the amount of assets concealed, rather than the debt discharged. The 9th refused to go with a mechanical rule or categorical, but leaves it up to the court to determine loss based upon economic reality.

US v. Sullivan, No. 06-30546 (9-28-07). They can't have it both ways when it comes to halfway houses. What does this mean? Well, does a halfway house count as "imprisonment?" "No," says BOP and various other agencies. So, here, when the defendant tested dirty for pot in a Montana pre-release facility (halfway house), the question is whether his stay there counted towards supervised release on a federal charge or whether it did not. If it counted, defendant's SR had expired; if it did not, SR was still running. The 9th, joining other circuits, held that a halfway house is not imprisonment. It is an alternate to imprisonment. Hence the SR started running, and the petition was out of time, and the prosecution out of luck in seeking a revocation.

Congratulations to Deputy Federal defender David Ness of D. Montana (Billings).


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