U.S. v. Singh, No. 07-30150 (7-17-08). In an alien smuggling case, the defendant was convicted of aiding and abetting a "brings to" the U.S. offense under 8 USC 1324. The defendant argued, under plain error review, that there was insufficient evidence to support the conviction of aiding and abetting bringing an alien to the U.S. At worst, he argued, under Lopez, 484 F.3d 1186 (9th Cir. 2007), he aided transportation within the U.S. The 9th (McKeown joined by B. Fletcher and Paez) nonetheless affirmed. There was sufficient evidence of defendant's efforts to aid the bringing of the alien to the U.S. through encouragement. Under the plain error standard, the efforts of inducing supported the conviction, although it was a close case because most of the other actions occurred after the alien was in the U.S.

U.S. v. Miranda-Lopez, No. 07-50123 (7-17-08). 18 USC 1028 concerns false identifications. the statute is confusing as to whether the defendant "knowingly" possessed an identification of another. That is, does the defendant need to know, as an element, that the identification he uses belongs to another? The case revolves around whether the adverb "knowingly" refers to "another person" or "possesses." The 9th (Silverman joined by Berzon) holds that it refers to the person. The 9th thereby joins the D.C. Circuit. This sets up a circuit split, as pointed out by Bybee in dissent, 4th, 8th and 11th circuits. The case is one of statutory interpretation, and the rule of lenity. The 9th faces two readings, and it seems, consistent with lenity, and with the focus of the language, to go with need to show that the defendant knew it was a false identification of another, rather than just a false identification in general. This has sentencing implications of course. Bybee in dissent argues that the other reading, with knowing possession, makes more sense in the framework of the statute, and in comparison with other statutory formulations.

U.S. v. Lopez, No. 07-35389 (7-16-08). The 9th ( Fisher joined by Gould and Ikuta) found the government's withholding of Brady information as to a principal informant "troublesome." The Brady evidence was a memo that called the witness "unreliable." The 9th chided and chastised the government for its actions. Although the 9th wrung its hands, it washed relief away because the district court did not have jurisdiction under AEDPA for a successor; only the circuit could grant. It declines to do so here, using AEDPA as a towel to dry any misgivings because the newly discovered Brady evidence was not so dirty to establish by clear and convincing evidence that a jury would have acquitted. As to the government's conduct, it was not "so grossly shocking as to violate a universal sense of justice." U.S. v. Restrepo, 930 F.2d 705, 712 (9th Cir. 1991).

Green v. LaMarque, No. 06-16254 (7-17-08). The 9th (Bea joined by W. Fletcher and Miller) find a Batson violation when the state used its preemptories to strike all six African-American prospective jurors for reasons that were pretextual. The 9th stresses that a court cannot simply adopt the prosecutor's reasons for striking at face value, but must test them against the prosecutor's other actions. Here, white jurors with similar backgrounds -- various jobs, relatives in prison, etc -- were not stricken.