U.S. v. Maes, No. 07-10495 (10-10-08). It is not good to drive the wrong way on a one-way street, on VA property, especially when an officer can observe you. The stop lead to a citing, and a sighting of drug paraphernalia on the dash, and then a search that found drugs. Defendant was charged with drug possession under 21 U.S.C. 844. She argued that she should have been charged under the more specific regulation that refers to drug possession on VA property, 28 CFR 1.218(a)(7). The 9th (Clifton joined by Bea and Sedwick) held that a prosecutor has many quivers in her bow, and she can select the appropriate one. This is a prosecutorial function. Defendant failed to show that the regulations meant to supersede the general statute.
U.S. v. Lemoine, No. 06-50663 (10-9-08). A defendant pays his debt to society through incarceration and his debt to the victim through the MVRA and the Inmate Financial Responsibility Program. The court set certain restitution minimums ($25/quarter under the IFRP and $500 under SR). Oh yes, the total restitution was $2,835,126.88. The BOP decided that he could pay more ($132/month), and would receive certain incentives (i.e. UNICOR, etc.) if he did so. Defendant argued that this was a modification of the restitution order, and was not permissible because the court set the amount, and that it be under the IFRP. The 9th (Clifton joined by Tallman and Carroll) held that BOP could "voluntarily" encourage higher payments with incentives under the IFRP, and that it was mandated. Defendant was not in a protected class nor does the agency decision require strict scrutiny review; BOP's actions were rational in encouraging rehabilitation, and training and meeting the goals of restitution. BOP could play the voluntary IFRP tune, and the defendant would have to pay the piper.