Moore v. Czerniak, No. 04-15713 (7-28-09). The 9th issues an order and opinion that reaffirms its decision granting petitioner's habeas for IAC. The 9th denied en banc review, though over two voracious dissents. The petitioner confessed to a murder. The police violated his constitutional rights for counsel (he asked) and by promising leniency. Indeed, the police actions were very questionable (query: And Scalia says that modern police departments are professional and so we do not need the exclusionary rule?). The petitioner also supposedly told a family member and a friend. The state conceded that constitutional violations took place. So, did defense counsel file a suppression motion? No. He reasoned that the petitioner was not in custody (he was) and that others had been told. Defense counsel's theory was that the shooting was accidental. The petitioner was charged with felony murder and he plead "no contest" and received 25 years. Petitioner subsequently alleged IAC. The state courts found no prejudice as did the district court. The 9th (Rheinhardt with a concurrence by Berzon; dissent by Bybee) did. The 9th discussed the power of a confession, and the problems that the state would have getting the statement in. The statement was deemed involuntary and prejudicial. Berzon's concurrence distinguished between the analysis of IAC in not filing the motion and in advising petitioner to accept a plea. Bybee, dissenting, recounts the brutality of the incident, and would find that there were strategic reasons why counsel would not have filed the motion (other statements made, some mitigation). In the dissents from the denial of en banc review, Callahan argues that there is now a new rule requiring the filing of suppression motions in all cases (a bit overstated). Bea, in his dissent, focuses on the deference that should be given to the state's findings under AEDPA.

Congratulations to AFPD Barbara Creel of the Oregon FPD (Portland) for the win.

U.S. v. Berger, No. 08-50415 (7-31-09). "For richer or poorer, in sickness and health...till death do us part," but does that include restitution orders? The third party here, Cornella Berger, argues that the mandatory restitution order to victims of a swindle and fraud engaged by her ex-husband, precludes her half of the community property. "Not so," says the 9th (M. Smith joined by W. Fletcher and Clifton), in affirming the district court. The restitution order under the Mandatory Victim Restitution Act includes that portion of the community property that would be awarded upon dissolution of a marriage to the innocent spouse of a criminally liable defendant. Her innocence does not trump the restitution order.

U.S. v. Higuera-Llamos, No. 07-10602 (7-31-09). How much worse could it get at trial in a 1326 case, where the defendant had been arrested and confessed. How about introduction of a prior judgement for, yes, a 1326, to prove "alienage." Too prejudicial, one might think. Not so, opines the 9th (Wallace joined by Farris and McKeown), because the district court redacted it, and issued a limiting instruction that the prior could only be considered on the issue of "alienage." Isn't this like shooting fish in a barrel? No, again opines the 9th, because the government had the defendant's confession, but there has to be some corroboration of alienage, and this provided it. The district court's acts, such as redaction and the limiting instruction, distinguished this case from U.S. v. Bejar-Matrecios, 618 F.2d 81 (9th Cir. 1980). In Bejar-Matrecios, a certified judgment of conviction was entered into evidence with no redaction nor limiting instruction. The 9th believes here that the jury can cabin the evidence as to alienage rather than say, he has a criminal nature.

U.S. v. Mincoff, No. 08-50058 (7-31-09). In this major conspiracy and enhancement appeal, the 9th (Rawlison joined by Canby and N. Smith) affirms the conviction and sentence. The 9th goes through all the issues, finding sufficient evidence to show that the defendant had intended to distribute the drugs beyond himself (the wiretaps did not help). In the course of the affirmance, one learns a lot about "fronting" drugs (getting now, paying latter....think of it as a narcotics hedge fund). The 9th rejects the arguments too relating to multiple conspiracies, and the failure to turn over Brady and Giglio materials. This is very fact based. As for sentencing, the 9th upheld a constitutional challenge for vagueness in regards to the sentence enhancement (a doubling from 10 to 20 years) for a prior under 21 U.S.C. 841(b). The argument was that the prior of possession of ephedrine with intent to manufacture meth was not a "felony drug offense" because the conduct that was involved was vague as ephedrine by itself was not a stimulant. The 9th makes short shrift, concluding that any reasonable person would equate possession with intent to make drugs and drug offense.

U.S. v. Benford, No. 07-50210 (8-3-09). Is counsel needed at a pretrial conference confirming the trial date? Or is it a Sixth Amendment violation? The 9th Graber joined by Rymer and Bea) said there was not a Sixth Amendment violation, but stressed that its holding was limited on the specific circumstances here. The defendant and a co-defendant were charged with armed bank robbery. At a short pretrial conference, defense counsel for defendant did not appear (he was "on his way"). The prosecutor also said that the defense counsel might have spoken to another AUSA about a possible continuance. The court reconfirmed the trial date. The 9th found that this would not be considered a crucial stage -- which would require presence of counsel -- because nothing of substance or significance happened (or did not happened). Defense counsel could have filed a continuance later; no issues were resolved, or raised. As the 9th wrote: "We limit our holding to what happened (and what did not happen) in this case; we do not hold that a status conference never can be a critical stage, but only that this one was not." The 9th also said that the claim was whether absence was per se ineffective. In the ruling here, an IAC claim on post-conviction was not precluded. The 9th considered whether, under a 924(c) charge, the mandatory minimum should be 5 or, if the weapon was brandished, whether it should be 7 years. The Supremes in Harris v. U.S., 536 US 545 (2002) held that such a determination is judge-determined and is not an element of the crime. There was sufficient factual basis as the court had found that the defendant turned and pointed the gun at the teller, which had to be a "harrowing" experience. This encompasses "brandishing."