U.S. v. Diaz-Lopez, No. 09-50604 (11-9-10) (Gould with O'Scannlain and M. Smith). It is not every day we come across an extended discussion of "the best evidence" in a criminal prosecution. We do here, along with an interesting foray into foundation, arising from a 1326 (illegal reentry) appeal. The agent testified at trial that he searched a computer database for evidence of the defendant getting permission to return. There was none. However, the agent did not testify as to how the database was maintained. This was the subject of a foundation attack. The 9th held it was not necessary for the agent to be an expert in the creation and maintenance of the database; it was enough that he was familiar with it, how data was entered, and the record-keeping practices. As for "best evidence," the 9th accepts that this is an issue: an original has to be produced when or if the document's terms are in question (not the interpretation). The 9th reviews the history of the doctrine, the gnashing of evidence professors' teeth over the meaning, and the extension of the doctrine in the 21st century. The 9th finds it is not applicable here because the agent's testimony was a negative one: there was no record of a request to come back or action upon it. Thus, Rule 1002 (best evidence) is inapplicable to his search of a database that revealed no record.

U.S. v. Schaffer, No. 08-10167 (11-8-10) (Tallman with B. Fletcher and Rawlinson). The defendant and his co-defendant (and wife) were convicted of conspiracy to grow and distribute marijuana plants. They were growing marijuana for medical purposes (the co-defendant has cancer) and the government prosecuted on the fact that the operation expanded to be a distribution undertaking. The defense at trial was entrapment by estoppel because the county deputy sheriffs dropped by to check out the medical dispensary operation and gave it their okay. The deputies were also working with the federal task force. The 9th affirmed the convictions and sentence, affirming the district court's rulings precluding the defense and a medical necessity defense. The 9th reasoned that the defendant knew distribution was illegal under federal law (it was on the pamphlets they distributed with the product). The defendant's argument that his actions were sanctioned by the government were not supported by any evidence. The Supremes decision in Oakland Cannabis Buyers' Cooperative precluded the medical necessity defense, and could be applied to the operation retroactively because the issue was unsettled, and the drugs had been illegal at least since 1970. The 9th also found that the defendant was not entitled to an evidentiary hearing on the motion to dismiss given that the issue of estoppel was intertwined with the general issue of guilt.

U.S. v. Grob, No. 09-30262 (11-10-10) (Wardlaw with Gould and Mills, Sr. D.J., C.D. Ill). What "mischief" is the 9th up to in this opinion? Not much, because the 9th finds that a Montana criminal mischief conviction is like disorderly conduct, and meets the requirements not to be counted under USSG 4A1.2(c). The defendant had been convicted of cyberstalking. The district court counted the conviction, placing the defendant in Criminal History Category III. The 9th vacates and remands for new sentencing for procedural error in counting the prior. In holding that the "mischief" was like disorderly, the 9th first notes that criminal mischief is not listed in the enumerated offenses that are not counted if the sentences fall short. If the offense is like one of the enumerated offenses, then it is not counted. Is mischief like disorderly conduct? The offense is not defined in the federal criminal code. In doing the comparison, the 9th applies application note 12 of the Guidelines, which states that the court should use a "common sense" approach. This common sense approach is for Guideline comparisons under app. note 12. The test considers (1) a comparison of punishments; (2) the perceived level of seriousness by the punishment imposed; (3) the elements of the offense; (4) the culpability involved; and (5) whether the offense indicates a likelihood of recurring criminal conduct. Using this test, the 9th comes out that mischief is very much like disorderly conduct, even with a higher stat max and some other differences. A new sentencing is in order.

Congratulations to Tony Gallagher, John Rhodes, Andrew Nelson, and Jessica Weltman of the Federal Defenders of Montana.