U.S. v. Smith, No. 05-50375 (3-31-08). Defendant argued that the evidence did not cut both ways because of the jury instruction. The 9th held it did. Defendant was charged with assault with a dangerous weapon. The charge arose from a prison fight. The dangerous weapon was supposedly a knife fashioned from melted plastic utensils and Styrofoam that was used to stab inmate. The knife broke, and the wounds were merely minor cuts. A prison medical assistant (who had failed his medical board exams twice), however, opined that it could have inflicted fatal wounds and therefore was dangerous. The jury instructions given stated that a prison made knife could be a dangerous weapon if used in manner that caused capable of causing death or serious bodily injury. The 9th (O'Scannlain joined by Jones) affirmed, holding that the instruction was not ideal, but that the instruction stating that the prison made knife was a dangerous weapon if used to cause death or serious injury apparently did not shift the burden of proof from the government. Rather, there was a link between the weapon used and the need for the government to prove that it was a dangerous weapon beyond a reasonable doubt. A following instruction stating that the weapon had to cause certain injuries could be viewed as clarifying. The testimony supported such a link, and went to sufficiency too. D. Nelson dissented, arguing that the defining of the dangerous weapon used as the prison made knife undercut the burden the government had.

U.S. v. Stringer, No. 06-30100 (4-4-08). A supposedly bad faith investigation by the SEC and US Atty. An outraged district court that the government deceived defendants. Suppression of evidence because of atty-client interference. Too good to be true, or at least held up on appeal? Of course. The 9th (Schroeder joined by Silverman and Bybee) reversed the dismissal because, although the spade work was all done in the civil investigation, the form letter sent to defendants and counsel did state that the information could be used in a criminal prosecution. Such dual track investigations do not violate due process, and there was not bad faith here because, after all, the civil investigation started first. The government was not exactly forthcoming, keeping the criminal investigation secretive, but that was the government's prerogative. As for the attorney-client interference, the government got the information from an attorney freely, and did not exploit any conflict she had.