Monday, March 09, 2009

U.S. v. Boulware, No. 05-10752 (3-9-09). The 9th affirms the district court's holding that the defendant failed to make a sufficient showing of proof to support a "return of capital" defense in a tax prosecution.

U.S. v. McFall, No. 07-10034 (3-9-09). The 9th reversed five convictions in a public corruption case. The defendant was a lobbyist and local elected official who allegedly played fast and loose with influence and contracts. The reversed convictions were for insufficient evidence on attempted extortion and conspiracy to extort because, under a Hobbs Act prosecution, putting barriers for a competitor was not the same as extorting a benefit and obtaining a benefit. The trial court also erred in its jury instruction as to "official right" by failing to include an aiding or abetting or conspiracy charge when the allegation was for acting in concert with another. Finally, the court erred in excluding the exculpatory grand jury testimony of one witness.

U.S. v. Streich, No. 07-30105 (3-9-09). The issue is whether a criminal defendant who pled guilty can challenge the inclusion of information in his presentence report that might put him at risk of subsequent civil confinement. The defendant plead guilty to a sexual abuse of a minor charge. In his plea agreement, the government said it would not prosecute for any other known offense. During the PSR interview, the defendant signed waivers for past information, including treatment for a juvenile sex conviction. The treatment accounts were detailed in the PSR. The defendant argues that this information can be used under the Adam Walsh Act for a civil commitment. The 9th concludes first that the government did not breach the plea by the inclusion of this information. Significantly, the 9th also holds that the possible use of this information in a civil commitment proceeding is a future contingency, and that it is not ripe. The BOP can make use of the information for other purposes (security, etc.) but as for commitment, and Fifth Amendment rights, that has to be postponed to when, and if, such a proceeding takes place. In a concurrence, Kleinfeld argues that the claim is ripe now, and that such information is proper. This case presents critical issues for those representing defendants charged with sex offenses, and whether information disclosed during the PSR and treatment can be used. If it can, the defendant may face lifetime commitment. Be careful of what the defendant says, or signs, in the PSR interview.
U.S. v. Brobst, No. 07-30284 (3-9-09). The 9th upheld search warrants for child pornography, but remands for resentencing because convictions for receipt and possession of child pornography constitutes double jeopardy. In discussing whether the search was reasonable, the 9th rejects the defendant's contention that state law (Montana) must be looked to in the analysis rather than federal. The 9th stresses that the Supremes recently in Virginia v. Moore, 128 S.Ct. 1598 (2008) have precluded that argument, and that the litmus test is reasonableness under the Constitution.

U.S. v. Franco-Flores, No. 08-10101 (3-9-09). A Nevada deferred sentence to attend drug court still imposes conditions so that it is counted under criminal history.


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