U.S. v. Garrido, No. 08-10398 (2-25-10) (D. Nelson joined by Farris and Bea). The 9th affirms a conviction for a Hobbs Act robbery and use of a firearm in a game room in Guam. It vacated the sentence and remanded for consideration of acceptance of responsibility. The offense was an armed robbery, where the security guard recognized the defendant, and testified that a firearm was pointed in his face. The defendant argued that he did not use an actual firearm. He offered to plead to the robbery, which was rejected. The 9th affirmed the conviction, affirming the district court's allowance of lay testimony that the gun used was an actual firearm under FRE 701 and 702. A fact witness could identify. At sentencing, the district court had denied acceptance because the court said that he had to accept responsibility for all the counts. This was error, the 9th decided, because the defendant only had to accept responsibility for counts that were grouped. The 924(c) was not grouped, nor could the defendant receive acceptance for it (a mandatory 7 years). The 9th stressed that the defendant could receive acceptance after trial if he admitted the elements, and showed remorse, for the grouped counts. This accords with other circuits.
Doody v. Schriro, No. 06-17161 (2-25-10) (en banc) (Rawlison for majority; concurrence by Kozinski; dissent by Tallman, Rymer and Kleinfeld), decision available here. This was a horrible crime, with the petitioner helping to shoot six Buddhist monks in a robbery of their compound (nine victims were killed in total). A month later, the crack sheriff's department arrested four men, who gave confessions. These confessions turned out to be false because, subsequently, two youngsters were arrested when evidence was found that linked them to the murders and they confessed. One of them, the petitioner here, was 17-years old at the time. He was interrogated for 13 straight hours, and was sleep deprived. His Miranda rights were marginalized, mangled, and mischaracterized. The Arizona state court of appeals found them sufficient. The district court denied the petition, but the 9th reversed, only to have it taken en banc. In this decision, the 9th firmly states the Miranda rights of the petitioner were violated and that the confession was involuntary. The 9th stressed that it simply could not acquiesce to the state's findings under AEDPA, stating "The dissent would prefer that we simply parrot the findings made during the state court proceedings and call it a day. However, if we succumb to the temptation to abdicate our responsibility on habeas review, we might as well get ourselves a big, fat rubber stamp, pucker up, and kiss The Great Writ good-bye." (Rawlison!) Kozinski concurs, finding that the Miranda violation should have ended the inquiry. Dissenting, Tallman, joined by Rymer and Kleinfeld, try to parse the words of the 12 page transcript where the rights were given to find that the unintelligible was somehow intelligible to a teenager, exhausted, questioned in tag teams, over the course of 13 hours. The dissent would give great deference to the state court's review.