U.S. v. Pineda-Duval, No. 08-10240 (8-10-10) (B. Fletcher with Canby and Graber). This is an appeal from a 10-count alien smuggling conviction in which death resulted due to a roll-over. The district court refused a causation jury instruction, which would let the defendant argue that he had not proximately caused the deaths but rather the border patrol did in its negligent employment of the spike strips used to stop the car, resulting in its roll-over. The defendant also argued various other evidentiary rulings. The court also brushed aside defendant's argument at sentencing that he had not acted with malice aforethought (indifference to life) because he had done this before and he thought it would be safe. The 9th found error in the court's preclusion of evidence, stressing that causation (proximate cause) has long been required. The only exception really is in drug trafficking offenses, as seen in Houston, 406 F.3d 1121 (9th Cir. 2005) (Tallman decision), but that is cabined for that class of offenses. Alas, although there is error, the 9th found it harmless under the circumstances and with the weight of evidence. The 9th also found error, albeit harmless, in the court's preclusion of evidence as to the training manuals of the Border Patrol. The 9th did vacate the sentence (life) and remanded for a new sentencing on the issue of whether there was clear and convincing evidence of the defendant acting with malice aforethought. The court failed to make clear findings as to the degree of recklessness was involved and used the wrong evidentiary standard. The 9th implied that the degree of recklessness did not meet the malice aforethought/reckless indifference standard.

Congratulations to AFPD Dan Kaplan (Phoenix) and AFPD Richard Juarez (Yuma) for the win.

U.S. v. Wahid, No. 09-50036 (8-10-10) (Fogel, D.J., with Silverman and Thomas). The defendant pled guilty to various fraud, wire fraud, theft, and identity theft counts. His appeal challenges the sentence, arguing that the district court erred in not realizing that it could depart on a guideline sentence for non-predicate felonies separate from the aggravated identity theft -- in other words, the court could depart for the guideline sentence on mail fraud. The 9th affirms the sentence. Under plain error review, the 9th held that the district court recognized it had discretion in sentencing; and that the court had not erred in its criminal history calculations.