Monday, November 22, 2010

U.S. v. Spangle, No. 09-50508 (11-19-10) (Tallman with Clifton and Bea). The 9th affirms the judgment and sentence in a SR proceeding. Of interest is that Kozinski, Chief Judge, sat by designation as a district court judge on this matter. The defendant, with prior bank robberies and mailing threatening letters, had a long history of SR violations. The most recent had indicia of his going to threaten a former probation officer. He was found in violation, and sentenced to 24 months with SR to follow. On appeal, he argued that he should be allowed to represent himself under Faretta. The 9th held that SR was like parole revocations, and so there was no Sixth Amendment right to representation. Any right to representation, and thus self representation, arises from statute, 28 U.S.C. 1654. The court had denied the defendant his self representation because it was too late and what he wanted (to see certain documents) was deemed not relevant. The 9th did not address whether there was error, finding that the whole thing would have been harmless anyhow. Of interest, too, was whether the court erred in failing to recuse itself because the defendant had personal information on the judge in his possession. The court said that such information could easily be gleaned from the internet, and that he did not feel at risk. The 9th noted that, and also stated that if possession of information about a judge, even threatening, could get a judge to recuse him or herself, it would lead to a rash of judge shopping. Under both an objective (what others would think) and subjective (actual bias) test, set out in Holland, 519 F.3d 909 (9th Cir. 2008), there was no plain error to require recusal. The sentence was also not unreasonable.


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