U.S. v. Weyharauch, No. 07-30339 (9-8-08). To file an interlocutory appeal from a suppression order, the government has to properly certify that the evidence is material and the appeal is not for delay under 18 USC 3731. The U.S. Attorney has to so certify. Here, the U.S. Attorney's Office in the District of Alaska is having some trouble finding the right paperwork. The 9th is losing patience, and in this, the third order, the 9th (D. Nelson joined by Tashima and Fisher) demand that the government show them the paperwork that makes an AUSA a special acting us attorney in this matter.

Edwards v. Ayers, No. 05-99001 (9-9-08). The 9th (Schroeder joined by Silverman and Bybee). The 9th starts off its opinion denying relief by stating that petitioner's disturbed behavior and mental problems were apparent from early childhood. For years the petitioner was confined to a Maryland mental hospital until he was released because of a change in state law, although his doctors still thought him dangerous. He ended up killing a little girl and injuring another by lying in wait and shooting them. The 9th concludes that the special circumstance of lying in wait was a constitutional limiting aggravator; that the state's failure to turn over the complete file from the mental hospital was not a Brady violation because there was more bad in the file than good; and that there was no IAC in failing to present a diminished capacity defense at the guilt phase; nor in not presenting the long history of mental illness as a mitigator in the penalty phase. Defense counsel had petitioner evaluated by four experts, and could not develop a diminished capacity defense. At penalty phase, the mental issues showed an increase in aggression and bizarre behavior, and counsel made a decision not to inflame the jury. Lastly, any Brady error was harmless. The strategy to present lay witnesses to say that petitioner was depressed about his divorce and that this act was aberrant was not deemed to be ineffective.

U.S. v. Lopez-Martinez, No. 07-10174 (9-10-08). Let's see, the court told the prosecutor that she was not developing her evidence sufficiently to prove the elements of alien smuggling resulting in death. Did the court do this for the benefit of the government? No, the court did this to help the defense bolster its Rule 29 motion and to have it stand up. Yes, that was the reason. However, the prosecutor did develop the facts and so the Rule 29 was denied. Was the court's advice or coaching, albeit out of the presence of the jury, improper? No, concludes the 9th, because the judge is not a mere umpire, calling balls and strikes, but presides over the search for truth, within bounds, and can ask witnesses questions, ensure orderly presentation of evidence, clarify matters, and prevent undue repetition. If the court can ask questions, then the court, as many other circuits have concluded, can coach a bit, but not to an extent that it crosses the line. The line was not crossed here because, of course, the probing was for the defense benefit in its Rule 29 motion and it was outside the presence of the jury. The court also stressed that it was acting so the defendant, if convicted, was convicted under proper evidence and not by insinuation. The 9th (McKeown joined by Tashima and Gould) also considered, under plain review, whether an agent could testify as an expert on patterns and methods of alien smugglers and whether the defendant did indeed act as a guide for the ill-fated lost party. The 9th found no error, as the agent had 14 years experience, and supported his conclusions by explaining his methods and experience. A Daubert hearing was not necessary. The 9th next upheld the denial of the Rule 29 motion in light of the evidence presented that the defendant was in fact the guide. In closing the prosecutor argued that the defendant, when rescued, did not seek their help in rescuing the rest of the stranded party. This comment on silence is reviewed for plain error, and the 9th allows it because the defendant did not invoke, but rather misled the officers by stating that no one was with him. The 9th found no juror misconduct with some extrinsic notes being found in the jury room (no juror stated he or she saw the pages or notes). Lastly, the court did consider the 3553 factors at sentencing.

U.S. v. Waknine, No. 06-50521 (9-10-08). The district court sentenced the defendant on an extensive foreign bank fraud to 121 months. The court pronounced sentence without giving the government a chance to voice its recommendation of 108 months (low end of the Guidelines range). The plea agreement stated the recommendation. The defendant argued that the government should have been given a chance to voice its recommendation and raised several issues. The 9th (Gould joined by Wallace with a partial dissent by Ikuta) first found that the opportunity to "state the position" was ambiguous as to "time of sentencing," and concluded that whether there was error or not, the court had been aware of the recommendation, and therefore the defendant had not met his burden. The 9th also concluded that Fed R Crim P 32 requires the government to state its position at sentencing, and the court's rush to sentencing violated this. However, the review was for plain error, and the 9th found that the sentence would not have been different. The 9th did remand for resentencing because the court failed to state that it considered or weighed the 3553 factors. The 9th also vacated restitution and remanded, ordering the government had to provide the court with a more detailed accounting and evidence of loss given the victim witnesses's credibility issues in their conclusory summary affidavits. This last point caused Ikuta to dissent, arguing that affidavits are a proper means of finding restitution, and that a more onerous burden should not be placed on victims. The majority responds that affidavits are fine, but they have to have a sufficient evidentiary basis for concluding that certain losses occurred.