U.S. v. Ibrahim, No. 07-50153 (4-14-08). Defendant was convicted of conspiracy in regards to ecstasy. He got 188 mos. in prison, fined $4.5 million, and ordered to pay $4.5 million in restitution. One little hitch in the government's charges against him, which included forfeiture of $489,829.73 that was found during the arrest and search. The forfeiture notice was sent to defendant's cousin, John. The government confused the two. So, John got notice but not defendant (Tamer). Defendant then filed for return of property five years later under Fed. R. Crim. P. 41(g). The government argued that there was actual notice or at least implied because of records of meeting between John and Tamer. The court, applying a preponderance of evidence standard, agreed and dismissed. The 9th (Wallace) reversed, holding that the standard was summary judgment under a civil analysis under Fed R Crim P 12(b)(6). The issue is whether there is a material issue of fact, and here there was. Oh yes, defendant argued that he was really entitled to $981,485 but the 9th held that it was a typo, and what was $485 was transcribed as $485,000 and added to the actual amount found in the apartment and in the safe.

U.S. v. Rising Sun, No. 06-30614 (4-14-08). The defendant murdered two women in an isolated part of the Crow Indian Reservation. Indicted on first degree murder, he subsequently pled to two counts of second degree murder, with the possibility that the sentences would run consecutively. He got two life terms, but appealed. He argued that in sentencing, the court erred in adjusting for vulnerable victim (+2 levels) and obstruction (+2). The vulnerable victim adjustment was for the murders taking place in a remote part of the Reservation; and the obstruction for the defendant threatening witnesses before the investigation started to remain silent. The district court also gave a +3 level upward departure for extreme conduct. The 9th (Gould) reversed, holding that the record did not support the vulnerability based on remoteness. There were no facts developed that showed the victims were lured there, or had some vulnerability in the isolation that was part and parcel of, say, their job. They were just with the defendant there. The 9th stressed that remoteness could be a basis, but a factual basis had to be laid. As for obstruction, the 2003 Guideline had a temporal dividing line, subsequently erased, and therefore, under ex post facto, the obstruction occurred before an investigation started. The sentence was vacated and remanded.

Congratulations to Mark Werner and Tony Gallagher of the Montana Federal Defenders (Billings) for the win.

U.S. v. Perdomo-Espana, No. 07-50232 (4-14-08). Defendant suffered from diabetes. This led to a stroke while he was in a federal prison. Upon his release, he was departed, with a small amount of insulin. That was soon used up, and the Mexican available insulin proved ineffective. Defendant felt he had to return. Turned away at the POE, he tried to sneak in and was caught. He argued necessity at trial, and asked for a jury instruction. The court denied (although the court allowed defendant to testify as to why he did come back). On appeal, the issue was that jury instruction, with the question whether the necessity defense requires an objective standard. The 9th found that it did, rather than a subjective one (which focused of the defendant's own state of mind). The giving of the instruction based on a factual basis was then resolved under an abuse of discretion standard. The 9th affirmed the conviction.