U.S. v. Wright, No. 08-10525 (11-4-10) (M. Smith with Hogan, Sr. D.J. for DC; concurrence by Hug). This is a child porn case that went to trial and is now appealed. Defendant was arrested and charged with numerous counts related to child porn. Defendant said he did not know it was on his computer and pointed at his roommate, whom had motive, opportunity, and intent. Upon arrest, defendant made some statements (equivocal) that the court let in. Defendant also argued for greater access to discovery. At trial, the prosecutor committed misconduct in argument and came close in other spots. As for the roomate, the court kept out 404(b) evidence that went to the roomate's expertise, motive, intent, and some damning stuff (i.e. the roomate's on-line identity was "Presumed Innocent."). The jury acquitted on most counts, but found the defendant guilty of possession of child porn under 18 U.S.C. 2252A(a)(1) and (a)(5)(B). On appeal, the 9th reversed the conviction for 2252A(a)(1) because the photos did not travel interstate; the transportation was all intra-state (the images never went over state lines). The statute has since been expanded to include interstate means of transportation, but here, the jurisdictional element was not met. On the second count, the 9th remanded as to statements. The district court failed to make the necessary factual finds of whether the defendant was or was not in custody, asked for counsel, and was coerced. The 9th acknowledged error by the government in argument but said that defense counsel's rebuttal to it was so effective that it was harmless. The 9th sidestepped the whole issue of access to discovery under the Adam Walsh Act because, in this instance, it found that the defense had ample time to review the evidence. It does not need to be equal access, just ample. As for the 404(b) evidence, the 9th stressed that a witness need not testify for 404(b) to be introduced. However, due to some equivical and confusing rulings, the review was for plain error. This was not met because. it seems, a lot of other evidence of the roomate was introduced, and so the 404(b) evidence was cumlative. Concurring, Hug would find that the district court had implicitly made rulings in denying the motion to suppress because it was a credibility determination.

Congratulations to AFPDs Heather Williams and Brian Rademacher, Arizona FPD (Tucson) for the win.

U.S. v. Hantzis, No. 05-50507 (11-4-10) (M. Smith with O'Scannlain and Gould). The 9th found that the Faretta colloquy for self representation was adequate. Moreover, the court does not have to repeat the Faretta colloquy at every hearing or at every stage (pretrial, trial stages, and sentencing).