U.S. v. Biagon, No. 06-10479 (12-17-07). The court acknowledged the "elephant in the room" at sentencing, but when the defendant asked that the court be cleared and sealed so he could address "the elephant," the court said "no." Acknowledgement was enough. The "elephant" was cooperation in a mail theft scheme. Defendant wanted to argue that three months imprisonment was too much, and he should be at a halfway house instead given the extent of his substantial assistance, and the threats. The district court and parties danced around the fact of cooperation, all treating it as a factor that dared not speak its name. Defendant allocuted, but the court still gave him three months imprisonment. On appeal, defendant argues that his right to allocute was hampered, or constrained, by the court's failure to seal the courtroom. The 9th (Thomas joined by Thompson with Kleinfeld concurring) rejected the appeal. The 9th stressed that defendant had an opportunity to allocute, but that right is not unlimited, and the fact that court declined to clear the courtroom, in this case, was permissible. There were other avenues (in camera). Moreover, the 9th emphasized, defense counsel under Rule 32 failed to move to seal the courtroom. Concurring, Kleinfeld argues that the panel has added a layer of complexity in possibly requiring a motion to seal or clear where an oral motion oftentimes suffices.

U.S. v. Zimmerman, No. 06-50506 (12-18-07). The Justice for All Act of 2004 requires DNA collection from those on probation. The defendant here was ordered to give a blood sample. He protested, arguing that this would violate his religious beliefs and violate the Religious Freedom Restoration Act. The district court held that defendant's beliefs, an amalgamation of Catholicism, Buddhism, and scriptual reading were not religious, and that a sample would have to be given. The 9th, per curiam, remanded. The 9th held that defendant's beliefs, as on the record and with its underpinnings, were in fact religious. Whether the beliefs were sincerely held was another matter, and as a question of fact, was an issue the district court could consider. The 9th pointed out certain transgressions of the defendant in the past that seemed to conflict with his new belief, namely drug abuse, and that tattoos seemed to be at odds with the defendant's professed belief in the complete sancity of the body and the prohibition in Genesis against shedding blood. Nonetheless, the 9th notes, people change beliefs. The district court can also see if there is another way to give DNA samples that does not involve blood, and would not impinge upon defendant's religious beliefs (hair/swab?). Finally, the district court can finally determione, if defendant's beliefs are sincere, and there are no other means of getting DNA without violating religious beliefs, whether there is such a compelling government interest as to require the giving of a sample, and through the least burdensome means.

Congratulationss to AFPD Gail Ivers of the C. D. Ca. (Los Angeles) for the win.

U.S. v. Berber-Tinoco, No. 06-50684 (12-19-07). This was a stop close to the border for suspicious activity (crime afoot) occasioned by slow driving, in tandem, in a rural area, and pattern of directions. More interesting is the fact that the judge knew the area, and kept on interjecting his observations of the road, and area, and whether there was one or four stop signs. The 9th (Ikuta joined by Wallace and Nelson), found sufficient reasonable suspicion, but error in the judge using his own personal knowledge. It is one thing for the court to use general knowledge (the shape of a snowman, for example) versus specific knowledge of an area, that he makes part of there record. Nonetheless, the errors under FRE 605 were harmless.

Bradley v. Henry, No. 04-15919 (12-19-07). In an en banc opinion, the 9th (Noonan writing, concurrence by Clifton and dissent by Silverman) found the California appellate courts were objectively unreasonable in affirming a trial court's denial of counsel of choice. This was a murder case. The petitioner had a rocky relationship with various counsel, and there were various changes, some with he being present, one without. Various trial court judges kept granting continuances, for various reasons. A counsel that wanted to represent petitioner was denied because of payment concerns in a quick hearing. The majority looked at this case through the lens of petitioner's right for counsel of her choice. The majority viewed the repeated instances of denial of representation as a whole, and found it a Sixth Amendment violation. It also argued that the trial court itself was there reason for the delays, not the petitioner's choice of counsel. The concurrences looked at the brusque denial of counsel when the trial court, six weeks before trial, failed to adequately question counsel as to his ability to try the case at the time. In dissent, Silverman (joined by Tallman) looked at this case through the lens of the court, and the exasperation of the judges with the various changes in counsel, and sided with the judges finding that there were enough questions, and track record, that the denial of counsel under the circumstances was not objectively unreasonable.

U.S. v. Crampton, No. 06-30219 (12-20-07). The 9th (Kleinfeld joined by Thompson and Bybee) affirm an ACCA conviction. The 9th rejects the argument that because Oregon law does not preclude the possession of ammunition by a felon, defendant is not a prohibited possessor. The 9th pointed out that the Supremes define prohibited, and that the state, unless it restored all guns rights completely, would still fall under ACCA. The 9th also reaffirmed that the state law stat max for ACCA purposes was the maximum statutory sentence, and not the guidelines sentence. Blakely did not reduce the stat max to the guideline max for ACCA purposes.