U.S. v. Marler, No. 07-30181 (5-29-08). Defendant escaped from state custody, and six days later was arrested for conspiring to commit a robbery. He got 2 years state for the escape and 30 years state for the conspiracy. The feds then prosecuted him for being a felon in possession, and he gets a guideline adjustment because he was on escape status. His criminal history gave him points both for escape and for the robbery. Defendant argued that the escape merged into the robbery for criminal history purposes and should not be counted separately. The district court rejected the argument. The 9th (Tashima joined by Kleinfeld and Tallman) affirmed. The 9th did not buy the "related" theory, and the continuing nature of escape did not merge or become the robbery. Two distinct offenses, and the points get racked up.
U.S. v. Giberson, No. 07-10100 (5-30-08). Scrolling for fake identification files in a computer being searched pursuant to a warrant, the police could note and print what appeared to be child pornography. During an auto stop, it was discovered that the defendant had outstanding warrants and carried fake identifications. The latter led to a search warrant for his apartment, and for means of producing such identifications. Hence, the computer is the corner just called out to the police: "search me." They did, and in scrolling past files, porn pictures came up. The 9th held this was not outside the warrant, and the police could take a look while searching for the identifications. The 9th did vacate the sentence because the sentence for receipt and possession of child porn was multiplicitous.
U.S. v. Hinkson, No. 05-30303 (5-30-08). In an appeal from convictions for solicitation of murder of federal officers, the 9th (W. Fletcher joined by Hug) reverses and orders a new trial. The government used as a key witness the person the defendant allegedly solicited for the murders. It turns out that the witness was a liar and forger. The witness said he was a Korean war veteran, and other fabrications, when he was not. The 9th said this fabrication made his testimony suspect, and that the denial of a new trial motion was an abuse of discretion. In dissent, McKeown argues that the district court weighed and balanced the evidence, and his decision to deny the trial should be affirmed, although she would go so far as to allow a remand for further fact-finding as to when the government knew of the fabrications.