Byrd v. Lewis, No. 06-15977 (12-11-07). Petitioner, serving 25- to life for stealing a car under California's three strike law, gets relief from the 9th (Rawlison and Restani). The petitioner argued that he had "consent" to borrow a friend's car for several days, and when stopped, the radio was gone, belongings were gone, it would not go in reverse, and later, could not move forward. At trial, the court instructed the jury that an element for a scope of consent defense was that a defendant was not guilty if it was clearly established that the borrowing of a vehicle did not substantially or materially exceed the consent. The petitioner argued, and the 9th agreed, that the "clearly established" diminished the state's burden of beyond a reasonable doubt. The jury asked about the scope, and the state court's harmlessness review was unreasonable. Victor v. Nebraska, 511 US 1 (1994). Wallace dissented, arguing that the state's application of harmlessness was reasonable.

U.S. v. Moreland, No. 05-30541 (12-12-07). In this appeal from a major ($37 million) pyramid scheme, the 9th affirmed the conviction and sentence over numerous objections. Two of the more interesting ones involve the improper cross-examination by the prosecutor of the defendant concerning the veracity of two of the government's witnesses. The defendant, on the stand, was asked if the witnesses were liars and were lying. This is improper. However, under plain error, it was not prejudicial enough given the wealth of other evidence. The second issue, tied to the first, is that the defendant represented himself. He argued IAC (yes, he did), by saying that advisory counsel was not advisorial enough. The 9th held that there were two Faretta hearings, and that the defendant knew the risks of representing himself, and kept, strangely, asking for representation by a non-lawyer (and co-participant). The 9th reasoned that the defendant could have asked for appointed counsel.

U.S. v. Betts, No. 06-50205 (12-14-07). The appeal concerned SR conditions. The defendant had pled guilty to conspiracy for a scheme that fixed bad credit reporting for a bribe (the defendant worked for one of the credit reporting agencies). As conditions of SR, defendant was barred from working in a position where he had control of credit, he had to submit to reasonable searches, had to have the probation officer divvy up any "windfalls" in monies (inheritances, lottery winnings etc.), and could npt drink. The 9th upheld the first two, finding that there was a connection between his offense (credit fixing), and duty owed to an employer; it upheld the second given the Supremes gutting of the Fourth Amendment when it came to someone on probation. The 9th remanded though on the "windfall" condition, because, although close to a million was owed in restitution, the amount of the windfall to go to restitution must be determined by the court and not the probation officer. As for drinking alcohol, there was no indication of any drinking or drug problem, the offense did not involve alcohol, and the condition seemed to be imposed because the defendant declined to talk about any drug usage to the probation officer per FPD sentencing policy. The 9th (Kleinfeld joined by Gould and Smith) requires some connection, and so vacated. All Betts were off for this condition.

Congratulations to AFPD Jim Locklin of C.D. Ca (Los Angeles).