Miller v. Oregon Board of Parole, No. 07-36086 (1-18-11)(Burns, D.J. S.D. Ca, Paez, Clifton). The 9th holds that state law can indeed create a liberty interest in early eligibility for parole. This extends the 9th's holding in Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc) that only state law can give rise to a liberty interest in parole that is protected by the Constitution's due process. The early eligibility is created under the statutory scheme even when the burden is on the petitioner to show that he or she is capable of rehabilitation after an aggravated murder conviction. Under the facts here, the Board's denial of relief, however, was not unreasonable and did not violate due process.

U.S. v. Lindsey, No. 09-50459 (1-14-11) (D. Nelson with Ikuta; concurrence by Pregerson). The defendant just received 9 out of 10 peremptory strikes. The trial court made this error in good faith, and the defendant did not object when the court closed the book on the jury selection. Under U.S. v. Annigoni, 96 F.3d 1132 (9th Cir. 1996) (en banc), that would provide for an automatic reversal. However, the 9th holds that Rivera v. Illinois, 129 S. Ct. 1446 (2009) effectively overruled it. The error was not structural. Given the failure to object, plain error review is appropriate, and plain error was not committed. The 9th also found that there was sufficient evidence for conviction for various robbery and robbery related counts. There was also no error in the court's failing to substitute counsel. As for the wrong conspiracy jury instruction (proposed by the defendant), the error was harmless. The instruction failed to instruct on the requirement of an overt act. There were plenty of acts that the jury convicted on which would qualify as overt acts. The sentencing issues related to whether the sentence was reasonable (it was, the court gave detailed explanations); the brandishing of a firearm was a sentencing factor and not an element; and there was physical restraint for an adjustment because the defendant forced the bank manager into the vault at gunpoint). Pregerson concurred on the peremptory issue. he felt that Annigoni need not have been overruled, because that case involved the court who actively prevented a defendant from exercising a peremptory challenge. That differs from here, where the defendant did not object to the court's good faith error. It could be decided under plain error, and not finding an overruling, and that is the basis of the concurrence.

U.S. v. Doss, No. 07-50334 (1-14-11) (Hawkins with Berzon and Clifton). In an appeal from convictions for sex trafficking of children, transportation of minors into prostitution, conspiracy, and two counts of witness tampering, the 9th affirms most convictions. However, importantly, it reverses one count of witness tampering. The defendant had asked his spouse to assert her marital privilege. This request was not corrupting. The 9th sides with the 3rd Circuit on this, and is opposite the approach of the 2nd and 11th Circuits. The 9th does get support from dicta in the Supremes' Arthur Anderson decision as to privileges, 544 U.S. at 703-04. The 9th also vacated the life sentences in the sex trafficking with minors to allow the court (it was a bench trial) to determine if the prior sex offense (pandering under a Nevada statute) involved a minor under the federal definition. This is an Apprendi fact enhancement.

Congratulations to Davina Chen, AFPD, of the FPD Central District Office (Los Angeles).