U.S. v. Thompson, No. 07-50351 (12-3-09). The defendant, charged with drug crimes and being a prohibited possessor of a firearm, wanted counsel, did not want counsel, wanted stand-by counsel, and then wanted to represent himself. There were trips to the psychiatric wards for delusions, the MCC for competency, and a report about malingering. The defendant always seemed to have a psychiatric break on the day of trial. The court had continued the trial many times, given and relieved counsel, and finally refused to appoint counsel. The 9th affirmed the court's decision, holding that under Faretta, the defendant could represent himself, and seemed competent to do so, and under the new standard of Indiana v. Edwards, 128 S. Ct. 2379 (2008), articulated after this trial, the court had determined that the defendant had the mental capacity to represent himself. The court also did not err in refusing a continuance.

Bradway v. Cate, No. 08-55296 (12-3-09). In this habeas case, the 9th (Canby joined Rawlison and N. Smith) held that the California special circumstance statute that triggered a LWOP sentence was not unconstitutionally vague. Cal. Penal Code 189, 190.2(a)(15). The issue was whether the special circumstance of "lying in wait" for first-degree murder was the same as the special circumstance, thereby interjecting vagueness as to the distinction. The 9th held that the state court's interpretation that the two phrases were distinguished by the latter being "specific intent" could not be found under AEDPA to be an unreasonable application of federal law.

U.S. v. Kuo, No. 08-10314 (12-3-09). This was a prosecution for violation of civil rights arising from a conspiracy to force Chinese women into prostitution under 18 USC 241. The victims were lured to American Samoa, held hostage, and forced to work as sex slaves. The victims escaped, alerted the police, and this prosecution resulted. The defendants pled guilty. In assessing restitution, the court used a calculation that attempted to disgorge the ill-gotten gains from the forced prostitution. The court could only do this under 18 U.S.C. 1593(b)(3), trafficking, which was not charged here.

Congratulations to Peter Wolff, FPD of Hawaii, for the win.