US v. Lujan, No. 02-30237 (10-2-07). The government extracts its pound of flesh, and the probation office joins in with a blood sample. This is a challenge to the DNA collection on supervised release. The defendant's SR terms did not include sample collection. The DNA Act came into effect, and she challenged collection. Alas, the 9th holds that Kincade, 379 F.3d 813 (9th Cir. 2004) (en banc) and Reynard, 473 F.3d 1008 (9th Cir. 2007) control. Reynard rejected an ex post facto challenge and Kincade rejected a Fourth Amendment challenge. The analysis in Reynard also forecloses a bill of attainder (punishment) challenge. The 9th, finally, also dismisses the separation of powers argument.

US v. Brock-Davis, No. 06-30565 (10-2-07). This is another sentencing restitution issue. Under the MVRA, the 9th holds that defendant could be ordered to pay restitution to a motel for damage to a motel room because of meth production (what, it wasn't in the minibar?). The 9th found that there was an intervening cause (Palsgraf checked out?), and that he motel fell under the definition of a "victim," testing for asbestos in the actual room related to the meth lab was permissible, and the discrepancies in the bill did not render the bill unreliable. However, the court erred in ordering lost income from the room and the unsegregated bill for asbestos testing of other rooms.

Congratulations to AFPD John Rhodes for a partial victory in this Motel Montana case.