Today is a "trifecta" for Judge Reinhardt, as he authors three opinions in an "attempt" to define crimes of violence and "unshackle" unfairness.
U.S. v. Saavedra, No. 08-10078 (8-21-09). The 9th (Reinhardt joined by Siler and McKeown) is shackled by precedent in finding that California's definition of attempt, which requires only "slight acts in furtherance" is the same as a "substantial step" at common law. Compare People v. Superior Court, 157 P.3d 1017, 1022 (Cal. 2007) with U.S. v. Sarbia, 367 F.3d 1079, 1085-86 (9th Cir. 2004). The 9th traces how "slight" can be understood as "substantial" in state interpretation, and how 9th Circuit precedent for the State of Nevada's interpretation of that phrase is co-extensive with California's. Reinhardt files a special concurrence bemoaning the state of precedent where "slight" and "substantial" mean the same thing. He states that it defies logic and common sense.
U.S. v. Rivera-Ramos, No. 08-10174 (8-21-09). The 9th (Reinhardt joined by Siler and McKeown) considers whether New York's definition of attempt -- conduct that comes within a "dangerous proximity" to the attainment of a criminal end -- is the same as the common law's "substantial step." The 9th follows the Second Circuit's holding that the two are co-extensive. Compare People v. Warren, 66 N.Y.2d 831, 832-33 (1985) with U.S. v. Sarbia, 367 F.3d 1079, 1085-86 (9th Cir. 2004). The Second Circuit had previously so found. U.S. v. Fernandez-Antonio, 278 F.3d 150 (2d Cir. 2002) (New York State's attempted robbery is an aggravated felony under the Guidelines). The Second's analysis of the co-extensive interpretation of the phrases was adopted.
U.S. v. Brandau, No. 06-10512 (8-21-09). The 9th (Reinhardt joined by Noonan and McKeown) confront the practice in the Eastern District of California where every defendant faces mandatory full body shackling at initial appearances. The judges of E. Dist. Ca. issued a general order requiring leg, waist, and hand restraints on all; they then revised the order, so that unless the court determines otherwise, all initial appearances must be in leg and waist restraints -- although this applies only to the Sacramento division. The other divisions are under the old mandatory order. The practice possibly has not changed. The challenge was by two defendants, on relatively minor non-violent offenses -- disorderly conduct in a national park and the other FEMA and mail false claims. Before the 9th can get to whether this policy makes sense, across the board, it needed the factual contours and to determine if this issue is not moot because of the repetitious but evading review doctrine and because the policy may be revived. Given the need to determine how exactly the policy was being implemented, the 9th remands the case to an out of district judge to hold a hearing on the practices. The 9th states that the judges of the E. Dist. Ca. might want to get counsel for representation purposes.