In re Morgan, No. 07-70201 (10-9-07). The district court rejected a Fed. R. Crim. P. 11(c)(1)(C) stipulated sentence because it did not allow a judge to judge. The rejection was "as a matter of law." Such pleas, reasoned the district court, reduced an article III judge to a mere formality. The charge was "assault resulting in serious bodily injury," there were two defendants, and the offense took place on the Hopi Indian Reservation in Arizona. The district court accepted the stipulated plea of the co-defendant (33 mos.) three weeks earlier because it was at the high end of the guidelines, but turned down this stipulated plea "as a matter of law." A stay was granted and the defendant sought mandamus to enforce. The 9th (Goodwin joined by Thomas and Bea) held that a court could not categorically reject stipulated pleas but must consider each plea individually on its facts and circumstances. The 9th reviewed at length the role of courts with sentencing bargains, Rule 11, and the power of the court to reject plea bargains under an abuse of discretion standard. The 9th concluded that the court could not categorically reject Rule 11 stipulated sentences. The court erred, but mandamus was not granted, and the plea was remanded for further consideration. This opinon is an important vindication of stipulated sentences, and pairs up with the requirement for individualized sentencing.

Congratulations to AFPD Craig Orent of D. Arizona (Phoenix) for the win.

US v. Vidal, No. 04-50185 (10-10-07)(en banc). The 9th, sitting en banc, held that a California Vehicle Code sec. 1085(a), criminalizing "theft and unlawful driving or taking of a vehicle" could not be categorically characterized as an aggravated felony for a sentence of over a year because it applies not only to principals, but also to accessories after the fact. Under the modified categorical approach, the defendant did not admit all the elements of a generic theft. Paez wrote for the court, joined by Schroeder, Reinhardt, Hawkins, Thomas, Wardlaw, Fletcher, Fisher and Gould. The analysis focused on the statute, and the use of statutory terms of "accessory" and what scope that gave the statute's reach. The majority concluded the scope was enough to take it out of a categorical definition. Callahan, joined by Kozinski, Tallman, Clifton, Bybee, and Bea dissent, arguing that the statute only applies to principals and accomplices, and that the state's jury instructions support this reading and that language stating "accessory" must be redundant. Kozinski also files a separate dissent, also joined by Clifton, Bybee and Callahan, argues that the Supremes in Gonzales v. Duenas-Alvarez, 127 S. Ct. 815 (2007) stress that a crime falling outside a generic definition must require a realistic construction, and not legal imagination.

Parle v. Runnels, No. 06-16780 (10-10-07). The 9th affirms the granting of habeas relief for cumulative evidentiary errors committed by the state trial court that resulted in a violation of due process. The petitioner killed his wife. It was a stormy relationship, with physical abuse on both sides. He argued that his state of mind was such that the conviction should be for second degree or voluntary manslaughter. The jury convicted of first. The trial court had erred in violating the psychotherapist-patient privilege, improperly excluding rebuttal testimony from a defense mental expert on bipolar or manic disorders, improperly excluded the victim's propensity for violence, improperly excluded demeanor evidence of the petitioner right after the crime, and improperly admitted character evidence against petitioner. The state courts found all these errors, but shrugged them off as harmless. The 9th (Hawkins joined by Tallman and Bea) held that such a culmination of errors was not harmless, and under Chambers v. Mississippi, 410 US 284 (1973), a culmination of evidentiary errors can violate due process when the trial is so infected with unfairness that the resulting conviction is a denial of due process. Precedent from the Supremes establish this, and in this case, the extent of the errors, the nature of the errors, and the one sided nature of the errors, all going to petitioner's state of mind, the state court's decision was unreasonable.

Congratulations to Vince Brunkow of the Federal Defenders of San Diego for the win.