US v. Sutcliffe, No. 04-50189 (10-11-07). The defendant was a dissatisfied IT employee. He was let go by his company, and then SSNs started appearing on websites, and threats being made. The defendant apparently ignored a restraining order, and became increasingly hostile. He was eventually charged and convicted on interstate threats and transferring SSN numbers to facilitate a criminal activity. On appeal he raises numerous issues. the most interesting is the trial court's "implicit finding" that he waived counsel. He went through five appointed lawyers, suing them or attacking them or blatantly disregarding their advice. The court, exasperated, held that his actions were akin to his wanting self-representation, and the court so ordered, with an appointment of stand-by counsel. The 9th affirmed. The 9th held that the defendant's actions toward and relationship with appointed counsel made it clear that the district court did not err in finding self-representation. This finding was carried over to the defendant's argument that he should have had appointed counsel for sentencing. The 9th held that stand by counsel acted in the defendant's interests. This issue differs from trial representation, and once a conviction occurred, it could be argued that counsel was needed, especially with guidelines. The 9th however affirmed. Lastly, there was no Ameline error, because the 9th held that the sentence would have been the same. (This strikes one as being annoyed with appellant.)
US v. Richard, No. 06-10377 (10-12-07). The jury sends out a note, "We want to hear a portion of a witness's testimony." What's a court to do? Well, a good starting point would be this decision, where the 9th (Hawkins joined by Wardlaw) reverse a prohibited firearm possessor for the trial court's abuse of discretion in reading only a portion of a key witness's testimony about the weapon. The defendant was a passenger in a car, where a gun was found, and there was a lot of conflicting evidence about whose gun it was. The key witness had trouble identifying the defendant and there were credibility issues. The 9th grants that a trial judge has discretion, but delineates certain basic rules for reviewing testimony; namely, that it be in open court; that it be all the testimony, including cross; and that there be a limiting instruction. of course there might be exceptions, but the circumstances of the case are critical, and these factors usually should apply. They were not here. Dissenting, O'Scannlain argues that the abuse of discretion standard grants the court discretion, but that this new test transforms the standard into de novo, and imposes a strict test. The dissent would find that the circumstances here, even with the less than ideal playback conditions, did not create an undue emphasis on the testimony, and there did not appear to be error.
Congratulations to AFPD Anne Traum of D. Nev. (Las Vegas).
Bockting v. Bayer, No. 02-15866 (10-12-07). No. 15866 (10-12-07). This withdraws the decision and dissent of 9-27-07 and substitutes this opinion instead. the 9th (Wallace joined by McKeown) find that the admission of a child's out of court statements were trustworthy under the law as it existed pre-Crawford, and that the guarantees of trustworthiness were met. This was a child sexual abuse case, and the child victim became unavailable for testimony. Her statements to the detective and mother were let in and the state supreme court's decision was not unreasonable. In dissent, Noonan argued that the guarantees of trustworthiness were not met.