U.S. vs. Apodaca, No. 09-50372 (4-12-11) (Cudahy [7th Cir.] with Wardlaw; concurrence by W. Fletcher). Lifetime supervision on one count of possession of child pornography was affirmed. However, it was affirmed grudgingly. The opinion rejects the substantive unreasonableness arguments put forth by defendant. The court did consider mitigation (indeed, the sentence of two years was a downward variance); and the court did consider distinctions between sex offenders. The 9th, and especially the concurrence by W. Fletcher, express uneasiness with the guidelines for possession of child porn and the supervised release terms. It is simply too long and shows little distinctions between types of offenders. The opinion and concurrence provide arguments why lifetime supervised release terms may be inappropriate. However, the imposition here was not an abuse of discretion.

Roberts vs. Hartley, No. 10-15760 (Wallace with Kozinski and Silverman). In light of Swarthout vs. Cooke, 131 S. Ct. 859 (2011), the 9th reverses the granting of a habeas relief for misapplication of California's "some evidence" standard for parole determinations. The Supremes in Swarthout made clear that the liberty interest created by state parole is determined by the state courts. A state liberty interest does not a federal liberty interest make. Federal review of due process is limited to procedural fairness. Here, the petitioner had procedural fairness. Federal courts cannot decide whether there was a misapplication of state parole laws in order to grant habeas relief.

U.S. v. Pelisamen, No. 10-10022 (4-13-11) (Tashima with W. Fletcher and Berzon). The defendant was the administrator of his grandmother's estate. It was sizable after a Northern Mariana Islands court ruled that property had been taken without compensation. It ballooned up to $4.4 million. The defendant, with his lawyer, took funds from the estate before it was disbursed. He was convicted of wire fraud and honest services fraud under 18 U.S.C. § 1346. After conviction, the Supremes held in Skilling, 130 S. Ct. 2896 (2010), that aside from kickbacks and bribery, the statute was unconstitutionally vague when it came to other conduct. Reviewing for plain error, the 9th found the conviction for honest services as constitutionally infirm because fraud is neither kickbacks nor bribery. However, the other conviction, for wire fraud, is still valid. First, the jury returned a special verdict where it checked that the conviction was both under honest services and under wire fraud. Second, the evidence was sufficient. Finally, the fairness and integrity of the verdict, under a plain error analysis, is not undermined. The 9th engages in an interesting discussion concerning the third prong of the plain error test in Olano, 507 U.S. 725 (1993). This prong asks if substantial rights were affected. The defendant argues that the burden of persuasion shifts from him to the government when, as here, the error was not plain at the time because of a subsequent decision. The Second Circuit has held in Viola, 35 F.3d 37 (2nd Cir. 1994), that such a shift takes place. Other circuits, notably the 10th and 11th, and also the DC circuit, have declined to follow Viola. The 9th has not weighed in, and sidesteps the issue here, finding that the defendant's rights were not affected under either standard. This issue is worth keeping an eye on. The 9th finds the numerous other issues unconvincing, and affirms the conviction.