US v. Holland, No. 06-30258 (9-4-07). A defendant called and left threatening messages on the judge's home phone. This is not the allocution that usual occurs. The judge brushed off the threats, deeming that they did not affect him, the defendant could not effectuate them, and that, objectively, his impartiality was not at issue. The 9th, in looking at 18 USC 455 (recusal) affirms the decision not to recuse. The 9th's opinion, a paean to impartiality, traces the power to recuse, the reasons for it, and the standards of review. It is a good starting place for that motion. It just did not work here, on appeal, where it was not raised below.
Sherman v. US Parole Bd, No. 05-35364 (9-4-07). When is a warrant not a warrant? Of course when it is a parole violator warrant. No oath or affirmation is necessary because the parole system is administrative, and such a warrant is not statutorily required. This contrasts, the 9th take pains to point out, with the need for a judicial warrant in the case of supervised release, Vargas-Amaya, which is statutorily required. The 4th Amendment does not mandate such compliance in a supervisory scheme.
US v. Braswell, No. 05-35009 (9-4-07). The 9th upholds a procedural bar to petitioner's challenge to the adequacy of the indictment under which he was convicted. The indictment failed to specify the drugs he was trafficking. The evidence was overwhelming, the prejudice nonexistent, and the petitioner failed to challenge such notice pretrial, at trial, or on appeal.
US v. Torres-Flores, No. 05-50898 (9-4-07). The 9th (Kozinski joined by Reinhardt) holds that the +6 level enhancement for "substantial risk of death" in an alien transportation case was error. The defendant tried to smuggle in an alien hidden in the back of a pickup cab, in a crude space that resulted in a "big hump" of carpet. The court found that the enhancement was justified because, if the defendant had gotten into a wreck, a substantial risk of death or injury would have resulted. The 9th reasoned that the "if" part, under these circumstances, was too speculative, and not in line with the factors under the guideline, where the risk had to be more imminent. The alien was not in the trunk, nor faced any greater risk than the driver, unless an accident happened. Interestingly, the 9th focuses on the extent of the enhancement, +6, to say that the magnitude is also a factor to be weighed. (11452).
In dissent, Ikuta argues that the 9th should read the guidelines enhancement liberally and give deference to the district court. Ikuta also takes issue with the magnitude factor in assessing an enhancement.
Congratulations to Matt Shaftel and Vince Brunkow of the Federal defenders of San Diego for the win.
US v. Mitchell, No. 03-99010 (9-5-07). The 9th (Rymer and Silverman) affirmed capital convictions and sentences from deaths arising from the Navajo Reservation in the District of Arizona as "no error requiring reversal occurred . . . ." Dissenting, Reinhardt argues that reversible error occurred in the admission of post-arrest statements, in the tainted jury selection where the only African American juror and only Native American juror were struck for impermissible reasons, and that sentencing was rife with errors.