Cooper v. Brown, No. 05-99004 (12-4-07). The 9th affirms the denial of a habeas petition. The petitioner asks for various tests to be conducted, and they were, with the result that innocence was not established. The 9th (Rymer joined by Gould and with a concurrence by McKeown) holds that neither the actual innocence "gateway" nor AEDPA standards were meet for the claims. McKeown, concurring, is troubled by the sloppiness in the investigation and forensic testing. She points out discrepancies, errors, and questions in pieces of the physical evidence. She wonders if certainty is established "once and for all," as requested by the tests. She ends up concurring because of AEDPA's standards of deference.

Smith v. Patrick, No. 04-55831 (12-4-07). On remand from the Supremes, this panel of the 9th (Pregerson, Canby and Reed) hold again that no reasonable jury should have found the petitioner guilty of assault on a child resulting in death. The injuries to the child were not consistent with the supposed violent shaking. The 9th finds that AEDPA's deference to state holdings unless it is contrary to a Supreme Court decision does not require an exact lining up of facts, but is rather to be compared to the general holding of the precedent. Here, the Court's precedent was Jackson, and "the light most favorable..." articulation. There was no physical evidence in this case to support an assault resulting in death offense.

U.S. v. Macias-Valencia, No. 06-10711 (12-5-07). This "conspiracy appeal" answers the question: can a defendant get a 10 year mandatory minimum for a conspiracy where there was no contraband? The answer (drumroll) is "Yes." (What did you expect?). The defendant was in a reverse sting (buying drugs) but when he showed up with the money, and said "show me the drugs," police badges were flashed instead. The 9th (Graber joined by Trott and Beezer) stated that conspiracy is a substantive offense distinct from possession with intent, and that it carries the same penalties as possession with intent, but with different elements. The straight reading of the statute and legislative history all support the applicable mandatory minimum even in the absence of the drugs. The 9th follows the 6th Circuit in this holding.

U.S. v. Holt, No. 06-30597 (12-5-07). In an appeal from an "enticing a minor" offense, 18 USC 2422(b) and possession of child pornography, the 9th (Gould joined by Canby and Graber) hold that a "deception adjustment" under the guidelines was appropriate. The defendant was a 45-year old doctor pretending he was a 19-year old college student to who he thought was a 13-year old girl (but was, of course, a middle-aged FBI agent). The defendant did inform the "girl" that he was older six months after the first contact that he was older, and gave his name, before he sent explicit photos. The court, and the 9th, found that an adjustment for deception was proper because he first made contact and "groomed" with a false identity. The 9th also affirmed an adjustment for sadomasochistic photos on the computer.

U.S. v. Zalapa, No. 06-50487 (12-5-07). A failure to object to multiplicitous charges does not waive double jeopardy challenge. Here the defendant was caught with a gun and bullets. The government charged him in a multi-count indictment, with counts two and three alleging possession of an unregistered machine gun and an unregistered firearm with a barrel less than 16 inches, each count falling under the prohibition against possessing such unregistered firearms. The 9th first found that such a double charge was multiplicitous, as the overall section 5861 punishes individual firearm possession, with the firearm as a unit. The precedent is that two or more sections cannot be attached to one firearm, although many firearms can have specific violations. The 9th goes on to hold that the objection was not waived as the challenge is to the conviction and sentence under double jeopardy, and not to the form, or the type of proof presented, in the indictment. There is also prejudice.

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