U.S. v. Andrews, No. 09-30072 (4-7-10) (opinion by Alarcon joined by Fernandez; concurrence by Clifton; dissent by Alarcon). This appeal revolves around restitution. The defendant pled guilty to assault resulting in serious bodily injury. The court ordered restitution, but refused to allow the defendant to present an expert witness as to causation for some of the victim's mental and physical diabilities. The court could not simply adopt a social agency's determination. The 9th also found that the restitution amounts for loss of function by one agency and disability by Social Security were separate and not "double-dipping." The panel fractured on whether the restitution could be paid to a third party, since the victim had already received compensation from the agency. Judges Clifton and Fernandez both thought this was permissible under the victim statutes (VWPA and MVRA). Alarcon, dissenting, would find that restitution can only be ordered to the actual crime victim.
Congratulations to Matt Campbell of the Federal Defenders of Eastern Washington & Idaho (Spokane) for the win.
U.S. v. Tello, No. 08-50579 (4-7-10) (Gould with Ikuta and George, Senior D.J.). The defendant was convicted under 18 USC 2422(b) of using means of interstate commerce to knowingly persuade a minor to engage in a sexual activity for which he can be criminally charged. The defendant lived in Arizona, and communicated with a 13-year old girl in Los Angeles. The "13 year old girl" was the usual FBI undercover agent. The defendant drove to LA and was arrested outside a bookstore, where he was to meet the girl, and take her back to Arizona for sex. He argued on appeal that the intent to commit the crime was formed in Arizona, and therefore the referenced California "criminal activity" did not meet the element of "sexual activity for which he could be charged." He contended that the sexual activity would be out of state. The 9th held that California law applies because the state law is interpreted to apply when any partial execution of the offense occurs with the state's jurisdiction.
White v. Martel, No. 08-16387 (4-7-10) (per curiam with Wallace, Graber and McKeown). Under AEDPA and section 2244(d)(2), the statute is not tolled when a petitioner's state PCR is deemed untimely. Equitable tolling also does not apply because of the petitioner's delay in not filing a federal petition, or at least a protective petition.