U.S. v. Selby, No. 07-30183 (2-9-09). The 9th (per curiam) substitutes this opinion for the one filed on Jan. 15, 2009. This case concerns a conflict of interest under 18 U.S.C. § 208 and wire fraud. Defendant was an administrator with the Bonneville Power Administration, and used her influence in regards to purchasing extensive software. Her husband was a salesman with the software company. Defendant argued that the initial contract was with the company before her husband went to work for them. The 9th held this did not matter, because the conflict of interest arose with subsequent purchases and contracts. The 9th also affirmed the wire fraud convictions against sufficiency of evidence challenges.

U.S. v. Cruz, No. 07-30384 (2-10-09). "Who is an Indian?" This question is an element in those cases arising from 1153 (Major Crime Act) prosecutions on Indian Reservations. Usually the question is easily proved: the defendant is an enrolled member of a tribe, receives benefits, and identifies as a member of the tribe. Occasionally, though, the test is more complex, especially when a person shuns or disputes tribal status. That is the case here. Defendant had 22% Blackfeet "blood" (chilling that we use that term) from his mother, but he was never an enrolled member of the tribe, moved off the reservation when he was a few years old, was eligible for tribal benefits, but never took advantage of them (like health), and went to school and had jobs that were open to Indians and non-Indians. He was renting a motel room on the Indian Reservation when an aggravated assault took place. The 9th (Reinhardt joined by Thomas) reversed the conviction on insufficiency grounds, even under plain error. The government failed to satisfy the test for Indian status set forth in U.S. v. Bruce, 394 F.3d 1215 (9th Cir. 2005). That test requires the defendant to have sufficient "degree of Indian blood," and has "tribal or federal government recognition as an Indian." The first prong of the test is conceded by defendant; the second prong has four factors, which are, in declining importance, tribal enrollment, government recognition, formal or informal, through receipt of Indian assistance; enjoyment of tribal affiliation benefits, and social recognition and participation in Indian social life. The 9th holds that, in this instance, none of the four factors were met. The defendant never voted in the tribe, never availed himself of tribal benefits, had been prosecuted by the tribal courts, but never seemed to identify as a member of the tribe. In dissent, Kozinski argues that the tribe recognized defendant and made him eligible to receive benefits, even though non-enrolled. The focus of the dissent is on what the tribe did, and the dissent argues too that the balancing test of Bruce is recalibrated into a too rigid test of declining weighted factors. This is an important case for the Indian test, and has established a jury instruction for the element. the case also has an interesting discussion of the standard of review for jurisidictional elements when based upon facts presented to the jury.

U.S. v. Beltran-Moreno, et al., No. 07-10368 (2-10-09). What were defendants or appellate counsel thinking on appeal? The defendants plead guilty to various drug counts and two firearm counts. The drug guidelines were life, but the court departed downward to 25 years, and because the court was unaware of the Supreme Court's Deal decision pertaining to 924(c)s, it imposed two consecutive 5-year sentences instead of the mandated 5-year and 25-year sentences. Instead of life plus 30 years, the defendants got 35 years, still 5 years under the mandatory minimums (10 for drugs and 30 for guns). Sentencing counsel, wisely, did not object. However, the defendants for some reason appealed! One even argued that the sentence was unreasonable and procedurally deficient. The 9th (Reinhardt joined by Hug and Tashima) were bewildered and perplexed at this decision, the role of counsel, and the arguments. The 9th managed to affirm the sentences only because the government chose not to appeal, see Greenlaw v. U.S., 128 S. Ct. 2559 (2008). The 9th praises the government in choosing not to appeal these incorrect sentences and harshly chastises defense counsel.