U.S. v. Langer, No. 09-50399 (8-20-10) (Breyer, D.J. with Trott and W. Fletcher). The 9th decides that a rap sheet, even in the absence of corroborating evidence, is still sufficiently reliable to establish by a preponderance of evidence the timing and length of the resulting sentence. The defendant agreed that he had a prior conviction for assault. He argued that the rap sheet indicating 180-day sentence (which got him an additional 2 points under criminal history), may be good enough to prove identity (that's me) when there is a fingerprint match, but is not good enough when it comes to the length and timing of the sentence. The 9th holds though that rap sheets, when matched with fingerprints, are good enough. In Alvarado-Martinez, 556 F.3d 732 (9th Cir. 2009), the 9th found that a finger-print matched rap sheet was sufficiently reliable for criminal history. If it was good enough for that, reasons the 9th, it is good enough for timing and length. The 9th notes that the defendant did not challenge the rap sheet as incorrect, or contest the sentence, and indeed admitted he had such a conviction. This is a reliability decision, and it is reliable enough here.

U.S. v. Farias, No. 09-50269 (8-20-10) (Paez with B. Fletcher and Walter, D.J.). This is a Faretta decision concerning self representation. The 9th reverses a conviction in a 1326 case because the defendant had indicated that he wished to represent himself, the district court acknowledged his desire, but stated that there would be no continuances. The defendant had asked to represent himself in a timely manner at a pretrial conference (January 12th; the trial was scheduled for the 13th). The district court tried to dissuade the defendant, and there was a moment when the defendant said, "you have a point," when it came to the difficulties, but the colloquy was never completed. The record, as it was, indicates that the defendant's request seemingly was made in good faith, and he cited his dissatisfaction with counsel. The district court's statement that there would be no continuance in light of this was an abuse of discretion. The right to represent oneself includes the right to meaningfully prepare. The 9th stresses that the record is bare of any indication that the requests was for delay or in bad faith.

Congratulations to Janet Tung of the Federal Defenders of San Diego for the win.

U.S. v, Hunter, No. 09-30246 (8-20-10) (Snow, D.J., with Fisher and Berzon). This concerns restitution. The defendant committed fraud in obtaining a position as a nurse for a school district in Alaska. The FBI uncovered the stolen identity and after conviction, and a 96-month sentence, she was ordered to pay $12,558 to the school district and $5,547 to the Department of Labor. The Mandatory Victims Restitution Act requires restitution to actual loses of those directly harmed. Here, both the school district and the Department were harmed because they paid for services of a licensed nurse, and she was not. This tracks the Sixth Circuit in a similar case. The amount of restitution is not reduced by the value of services the defendant had performed, given her non-licensure.

Detrich v. Ryan, No. 08-99001 (8-20-10) (Paez with Pregerson and McKeown). The 9th grants penalty habeas relief in this capital case. There was IAC when it came to penalty investigation and presentation in a resentencing. Trial counsel did not use a expert mitigation investigator: and the investigator used was unqualified to do a life history. His investigation was minimal at best. No defense mental health expert was used nor defense evidence presented. Counsel failed to investigate and present the extensive mental health history. This ineffectiveness was prejudicial.

Crittenden v. Ayers, No. 05-99006 (8-20-10) (Fisher with Farris and Berzon). The 9th grants habeas relief in this capital post-conviction challenge. The 9th ordered a remand for a hearing on a Batson issue. At trial, the state struck the only African American prospective juror, supposedly for a reluctance to impose death. The prosecutor, however, kept other jurors that expressed the same qualifications when it came to the death penalty. Under Batson, the petitioner has to have presented a prima facie case, which he did; and the State has to come forth with a race-neutral explanation. If time has passed, and memories faded, the state can produce reasons that are race neutral based on the record and circumstantial evidence. At the third step, a court has to assess whether the strike was "motivated in substantial part" by race. Cook v. LaMarque, 593 F.3d at 815. Cook came down after the district court had conducted a mixed motive analysis (where there race neutral reasons that would have led to a strike even if race was an issue). Under Cook, if race was a substantial part of the strike, then Batson relief must be given, even if other reasons exist or provided substantial reasons. The remand is to allow the court, which had found that race did play a factor, to conduct a Cook analysis.