Cook vs. Brewer, No. 11-5303 (3-16-11) (O'Callahan with O'Scannlain and Graber).

[Ed. note: This case arises from the Arizona FPD office].

Petitioner is set to be executed on April 9, 2011. He filed a 1983 action challenging the use of foreign manufactured, FDA-unauthorized sodium thiopental, one of the lethal drugs used for execution. The 9th affirmed the district court's dismissal of petitioner's 1983 action for failure to state a claim pursuant to Fed. R. Civ. Pro. 12(b)(6) in alleging that Arizona's use of the drug, imported from a foreign source, was obtained in violation of federal law, could be contaminated, unsafe, not even be the drug, and would inflict cruel and unusual punishment. The 9th concluded that the claims were made with insufficient bases; that they were speculative and conclusory, and failed to state a claim under Baze. The decision came out the day after the DEA raided the State of Georgia to seize sodium thiopental for illegal importation, and the day that Texas declared it would no longer use its store of sodium thiopental.

U.S. vs. Harrell, No. 10-30176 (3-17-11) (Tallman with Fisher and Gould).

What are parentheticals good for in statutes? Not much, according to the 9th. In this case, involving aggravated identity theft, the defendant used a false SSN number to sneak into a prison with contraband. She argued that aggravated identity theft, 18 U.S.C. 1028A, and specifically subsection (c), only refers to offenses "relating to fraud" of programs. The 9th does not go with this reading, because the parenthetical are descriptive, describing rather than limiting. If it was meant to be limiting, Congress knew how to draft with language that was clear.

U.S. vs. Guo, No. 09-50394 (3-17-11) (Graber with Pregerson and Ripple, Sr. 7th Cir.).

The defendant was convicted of exporting 10 thermal imaging cameras with an exporting license. The defendant shipped the cameras to China, which was on a "no ship" list without a license. The defendant argued that the statute, 50 U.S.C. 1705, was vague. The 9th said it was confusing, and complex, but not vague. The statute referenced regulatory schemes, and executive orders. But complexity does not equate to constitutional vagueness. Moreover, reasons the 9th, the statute requires specific intent, and so the defendant had to know that he was committing an illegal act. That was pretty clear here with subterfuge and straw purchasers.