U.S. v. Waters, No. 08-30222 (9-15-10) (Tashima with Fisher and Berzon). The 9th reverses and remands arson convictions because the trial court let in anarchist literature that was of doubtful relevance and was not balanced under FRE 403. The 9th also reversed on the ground that the court failed to inquire or instruct the jury as to the publicity on the case. This was a prosecution of radical environmentalists who burnt down buildings associated (wrongly) with genetic testing. After much investigation, and dead ends, a cooperator pointed to the defendant. There were problems with the identification and corroboration. The defendant argued that she was not involved, and that she did not agree with the radicals' tactics. She mounted a character defense. A folder of anarchistic writings was introduced as supposedly coming from the defendant, although that was questionable. The 9th wondered about its probative value, whether it could be shown defendant had read them, and the dangers of associating what one reads with the charge. The 9th also found abuse of discretion in the court not allowing in defendant's documentary, made at that time, which advocated peaceful protest. If the trial court let in the anarchist writings, it should have let the video in. The trial court also erred in failing to make adequate inquiries into what the jury may have heard and read when, as the jury began to deliberate, another terrorist arson was being reported amidst great publicity. This case, together with Curtin, marks the 9th as greatly disfavoring the introduction of one's reading materials, demands a high linkage, and requires the court to review each and every page to do a 403 balancing.

U.S. v. Albritton, No. 09-30436 (Thompson with Noonan; dissent by Berzon). This concerns what exactly is "brandishing." The defendant had a BB gun in a bank robbery and pointed it at the teller. He got the "otherwise used" adjustment. The majority affirms this finding, holding that pointing the weapon at someone constitutes "use" and not simply waving or flourishing. This comports with the First Circuit's take in Villar. In dissent, Berzon argues that this is a too-narrow reading of "brandishing," which should include pointing at a person. Brandishing is more expansive than the dictionary definition as can be seen in the amendments of the Guidelines and reading it in connection with "otherwise use" which would include pistol whipping or use of other weapon.