U.S. v. Easterday, No. 07-10347 (8-22-08). The 9th (Schroeder joined by Fairbank, dissent by N. Smith) finds that circuit precedent has been effectively overruled by the Supreme Court. The precedent was U.S. v. Poll, 521 F.2d 329 (9th Cir. 1975), which requires, in a failure to pay payroll tax under 26 USC 7202, that the government prove the defendant could pay taxes, and the defendant could argue, as part of "wilful" failure that he did not have the funds. In this case, the defendant ran a series of nursing homes. His business situation became ill, and then grave, and so he did not pay payroll taxes in an effort to keep the businesses viable. At trial, the court refused an instruction, seemed to be supported in Poll, that he could defend on not having enough money and therefore his failure was not wilful. A Poll tax? The Supremes, however, in U.S. v. Pomponio, 429 US 10 (1976) (per curiam), held that "wilful" in a tax context meant that if you owe taxes, and do not pay them, you acted wilfully. There is not a necessity of "evil," nor of having to show that you had the funds. The 9th then says that prior precedent binds it, unless the Supremes over-rule, and here they did in substance. The 9th also points out that the prior case belies "common sense" in that it rewards a defendant for having spent money on everything but taxes. Dissenting, N. Smith argues that precedent is precedent, and that the jury instruction should have been given.

U.S. v. Daniels, No. 07-50242 (8-29-08). This case raises again issues as to supervised release conditions. The defendant plead to one count of possession of child pornography. On appeal, he argued that lifetime supervision was unreasonable. The 9th (Wallace joined by Gould and Ikuta) held that the court had implicitly considered the length of the SR term, and had alluded to there reasons set forth in the PSR. Again the 9th stressed that the court could have said more, but under Cope and Carty, the record indicates the court's consideration. The 9th remanded to clear up whether the court meant psychological or physiological testing as part of treatment and supervision. The court also needs to findings as to what prescribed medication the defendant must take.

U.S. v. Gambia, No. 06-35021 (8-28-08). The 9th (M. Smith joined by Goodwin and Fisher) hold that counsel, and not the client, can make the decision to have a magistrate judge preside over closing arguments. The trial was set for closing argument when the trial judge had to pick up his spouse from the hospital. Counsel agreed that the magistrate judge could preside over argument, and the district judge would take over when he returned. On appeal, the 9th held that counsel, for strategic and tactical reasons, could consent to a magistrate judge without the defendant's personal assent. The Supremes recent precedents provide support. If a magistrate judge can pick a jury, the magistrate judge can preside over argument.

Johnson v. Knowles, No. 07-15221 (9-2-08). The 9th (O'Scannlain joined by Hawkins and McKeown) define the Schlup "innocence" gateway for successor petitions. The petitioner here complained about procedural errors and mistakes. The 9th, examining the purpose of the Schlup innocence exception, holds that it is limited to those extraordinary cases where the petitioner asserts his innocence and asserts that a court cannot have confidence in the finding of guilt. Claims only asserting procedural violations fails to meet this standard.