U.S. v. Flyer, No. 08-10580 (2-8-11) (Thomas with Kleinfeld and Tashima). In this child pornography case, the 9th reverses convictions on three counts: two counts for lack of jurisdiction and one count for insufficient evidence. In an undercover operation, the FBI downloaded various files of child porn through a file sharing program, LimeWire. The address was traced back to the defendant. At trial, the government failed to prove for two counts of transportation of pornography that the files had traveled interstate; the files moved intrastate from the defendant to the FBI, but no evidence of crossing state lines. On count three for possession, the evidence was in the unallocated space on the computer, which the government failed to show when the files had been created, received, viewed or even possessed. The unallocated space contains trash data, and it cannot be accessed without forensic software. The 9th denied defendant's argument that the government had destroyed evidence when it mishandled the copying of the computer files, and that there was no basis for a Franks hearing.

Wilson v. Knowles, No. 07-17318 (Noonan with Silverman; dissent by Kozinski). The 9th finds that Apprendi error occurred when a state court made fact findings arising from the petitioner's prior conviction that was used to enhance his sentence. The petitioner was before the state court for a DUI with a prior felony conviction. The state court examined two prior felonies; for one of them, proximately causing bodily injury under the influence, the state court examined an information and a preliminary transcript. The court then found that the petitioner had personally caused the injury, that the injury was great, and the victim was not an accomplice. This counted as a third strike and resulted in a 25- to life sentence. On appeal from the district court's denial of the petition, the 9th held that there may be disagreement over the precise boundaries of Apprendi's prior conviction exception, but the exception was overstepped in this case. It was unreasonable to allow a judge to find the kind of disputed facts here. The fact finding was also not harmless given the context, and what the petitioner could have challenged 17 years ago. Kozinski, dissenting, argues that AEDPA prevents such a finding. The state court's decision was not unreasonable, and there was no Supreme Court decision precisely on point.

U.S. v. Kent, No. 10-10011 (Gould with Callahan and Korman, Sr. D.J., EDNY). In Bordenkircher, the Supremes held that it is not vindictive prosecution for the government to threaten to increase the charges as part of plea negotiations. In this case, the 9th uses Bordenkircher to allow the government to require cooperation so as to avoid the filing of a 851 sentencing enhancement. The defendant here faced a crack charge. The government said that if he cooperated, no enhancement would be filed. The defendant tried to plead guilty to the charge, and to argue that by pleading, the government could not then file an enhancement. The district court did allow the government to file. The 9th found no error in the court's allowing the government to file even when the defendant was attempting to plead. Moreover, the prosecutor's actions were not vindictive as it could set conditions to what charges it filed. The only good thing that came out of this opinion is that the 9th cleared up the standard of review for prosecutorial vindictiveness. When it concerns a matter of law, or application of law, it is de novo.