U.S. v. Harris, No. 09-50113 (1-4-11) (Wallace with Graber and Mills, Sr. D.J., C.D. Ill).

This is an issue of waiver of appeal. The defendant was charged with being a prohibited possessor of a firearm. He pled under a plea agreement, where, among other agreements, he stipulated to an enhancement for a crime of violence, and waived his right of appeal. The defendant later backed out of the "crime of violence" stipulation because of uncertainty in the case law, and he was permitted by the government, documented in e-mail exchanges. The court ruled against him, finding that his prior burglary was a crime of violence. He appealed. The 9th enforced the appeal waiver, and refused to exercise jurisdiction. The 9th said that the language of waiver was plain, that the defendant pled knowingly and voluntarily, and that he took his chances with the argument before the district court. This opinion has a good overview of the plea waiver, and acts as a warning to the broad enforcement of such waivers. E-mail exchanges with implicit understandings will not trump explicit provisions.

U.S. v. Montes, No. 08-10539 (1-4-11)(Tallman with B. Fletcher and Rawlinson).

Allegations of juror misconduct ordinarily require an evidentiary hearing to determine the nature of misconduct, if any, and the reasonable probability it affected the jury's verdict. However, an evidentiary hearing is not mandated every time. When, as here, the allegations can be decided without the benefit of a hearing, the court did not err in not holding one. This was a prosecution for marijuana distribution under 21 U.S.C. 848. The evidence was overwhelming (not helped by the defendant's statements and boasting to law enforcement that he was distributing marijuana). During deliberation, a juror saw a headline from the SF Chronicle's webpage that President Obama's administration may go easier on pot growers. The juror discussed this in the jury room. After this was raised post-verdict, the court had the juror affidavit, and the pleadings by the parties and argument. The court felt that it could not go into the juror's deliberations and thought process under Fed. R. Evid. 606(b). The court found that the headline and summary did not affect the verdict. The 9th agreed and affirmed. The district court did not have to hold the hearing and that a new trial was not required. The evidence was presented via affidavit; a hearing would not have added anything because the deliberative process could not be questioned. On the facts as presented, and under the test set out in Bayramoglu v. Estelle, 806 F.2d 880, 887 (9th Cir. 1986), the misconduct did not affect the verdict. The headline if anything helped the defendant.

Hamilton v. Brown, No. 09-15236 (1-4-11) (Tashima with Cowen and Silverman).

The 9th upheld the taking of blood samples for DNA identification under California's DNA and Forensic Identification database statute. The prisoner's complaint failed to state a claim.

U.S. v. Liquidators of European Federal Credit Bank, No. 09-10183 (1-4-11) (Graber with Callahan and Bea).

Take a look at this case if you are ever representing former prime ministers (here of the Ukraine) charged with money laundering. This is the forfeiture issue that arose from the conviction. U.S. v. Lazarenko, 564 F.3d 1026 (9th Cir.), cert. denied, 130 S. Ct. 491 (2009). In this case, the government seized accounts held by Bank of America. The 9th reverses the seizure, finding that the assets were not listed in the charging papers, and that the government was barred by res judicata.