U.S. v. Gossi, No. 09-30202 (6-15-10) (Alarcon joined by W. Fletcher and Rawlinson). "Its not fair, I got punished by having to pay more restitution than the others." That is the complaint and appeal of the defendant under the Mandatory Victims Restitution Act. He and codefendants were charged with bank fraud. Defendant plead to one count against one bank as victim. His amount of restitution was higher, based on the loss to that bank, than the others were ordered. Tough, snarled the 9th, you plead to that count. And, moreover, as to the issue of the amount of loss being too high, the loss is determined for this house when the victim (bank) got the property back. The argument by the defendant that the loss should be valued at when the bank should have foreclosed, because they knew the loan was either bad or that the defendant was in trouble, unsurprisingly, found little sympathy with the 9th.
Howard v. Clark, No. 08-55340 (6-15-10) (Gertner, D.J. joined by Kozinski and D. Nelson). The defendant was accused of shooting at two victims. He allegedly murdered one and injured the other. Problem was, the defendant said he was innocent, and was not there. One witness on the stand said that she could not identify him. (The police detective said that she had identified him in a photo line up, which was contested. The prosecution argued gang intimidation). The jury convicted of first degree after lengthy deliberation and saying that they were hung. Oh yes, about the victim that lived? It seems that he would have said that the defendant was NOT the shooter. Unfortunately, the trial lawyer never interviewed him nor called him. IAC? One would think. The state court though said that it was not because the same information came out through the witness. The 9th though reversed and remanded for an evidentiary hearing on prejudice. The 9th emphasized how important the victim-witness would have been, and how powerful that testimony would have been. The interview of him could have lead to other leads and an even more potent cross examination on others. The 9th did hold that it was not IAC for the lawyer not to have called an expert on eye witness identification.