U.S. v. Gonzalez, No. 07-10326 (6-19-08). This was a case of making "bale." The bale was marijuana, and the defendant, a Border Patrol agent, took one bale out of 30 when he was left to guard a pick-up. He placed the bale in his vehicle, and acted none the wiser. His actions were caught on videotape. Convicted at trial, he argued that there was no jurisidiction for the gun charge, and that there was a lack of sufficiency of the evidence. The 9th (B. Fletcher joined by Rymer and Duffy) first hold that a motion for acquittal filed after the verdict, within seven days, preserves the sufficiency challenge. The 9th found, though, that there was sufficient evidence the firearm was used in relation to the offense. There was also sufficient evidence to support a possession with intent to distribute charge. (Making phone calls to a relative with a prior drug conviction did not help). There were also no sentencing errors.

U.S. v. Chapman, No. 07-50000 (6-23-08). Standing still is not assaultive, although the government so argued. Defendant was approaching the POE in San Ysidro when a Border Patrol ordered him to stop and move to the sidewalk. He did stop, but did not move. The agent tried to escort him to the side but could not move him because the defendnat had tensed up and stood rigid. The agent then tried to arrest him for interference, but in trying to cuff him, slipped. The agent then whacked him with a baton, to which defendant said, "hit me again." The agent did. All this resulted in a misdemeanor charge of assault under 18: 111(a). There's only one problem: the act must be a simple assault for a misdemeanor. The 9th (Wardlaw joined by Thompson and Reed) held that the act of standing still may be obstruction, might be interference, but it was not simple assault. The conviction was vacated.

Congratulations to Steven Barth of the Federal Defenders of San Diego for the win.

Duncan v. Ornoski, No. 05-99010 (6-24-08). The 9th (Reinhardt joined by Gould and Paez) find IAC in a capital case on both the guilt and sentencing phases. The trial lawyers failed to test the blood sample in the room at the site of the murder. The sample was neither the victim's nor the petitioner's, which supported his contention that he was the accomplice but not the shooter. The defense at trial was that someone else had been involved in the murder and it was not petitioner. The 9th found the error harmless for guilt because of felony murder, but prejudicial for the sentencing phase, where the fact of being a trigger-man was critical.

U.S. v. Tsui, No. 07-30467 (6-25-08). The 9th affirms the Parole Commission's imposition of a Supervised Release tail on a sentence in a prisoner transfer from South Korea. The defendant received a sentence in South Korea, and used the prisoner transfer treaty to serve his time here. With good time, and guidelines, he was facing less than 60 months, but the Parole Commission's decision to "tail" the sentence to 60 months was not unreasonable.

U.S. v. Locklin, 07-50187 (6-25-08). The 9th found an Apprendi violation in a prosecution for failure to appear. Defendant faced a felon in possession charge. He fled while the jury was being picked, and was subsequently found and brought back. He was acquitted on the felon in possession charge, but convicted on a flight charge. The government failed, however, to send to the jury what the underlying charge was, because that has an impact on the length of sentence of flight. Because the government failed to prove the underlying charge, the most the defendant can be sentenced to is one year. The conviction is affirmed; the sentence is vacated and remanded.

U.S. v. Taylor, No. 06-30580 (6-26-08). The 9th affirms that Arizona's "attempted armed robbery" is a crime of violence for career offender purposes under 4B1.1. The federal courts can rely upon an Arizona intermediate court decision that equates the state's broad any step attempt statute (13:1001) with the categorical defintion of substantial step.

Brown v. Lambert, No. 04-35998 (6-27-08). The 9th (Kozinski and Berzon) affirm a petition's denial. Petitioner alleged IAC for failure by his trial counsel to present evidence related to a bipolar disorder. The trial counsel declined to have petitioner examined by a psychiatrist, who would have tetsified that lithium would have controlled mood swings. Trial counsel also failed to put on the mental health counselor from prison, and also failed to cross-examine the state's psychiatrist at sentencing. The 9th excuses this as trial strategy, because there was potentially harmful evidence that could have come out. Specifically, that the petitioner may not have been in a bipolar episode at the time of the murder; that he may have been untruthful; conduct in prison, and that lithium may not have controlled him. Counsel's decision goes to sound trial strategy. Reinhardt dissents, arguing that mental health testimony was a key here, and that trial counsel's decisions were unsound, and ineffective.