U.S. v. Diaz-Ramirez, No. 10-10230 (5-23-11) (O'Scannlain with Trott and Campbell, D.J.).

In a case arising from "Operation Streamline" prosecutions in the District of Arizona (Tucson Division), and involving the Arizona FPD, the 9th found no Boykin error in the mass advisement of rights. The case arose from the practice of the magistrate court to advise groups of up to 70 defendants facing petty misdemeanor charges of their rights, charges, and consequences. This was followed later by individual questioning in smaller groups. Defendants allege a constitutional violation, in that this advisement violated due process because the record is silent as to whether they voluntarily and understandingly pleaded guilty as required by Boykin v. Alabama, 395 US 238 (1969). The case revolves around standard of review and burden production. The defendants contend that the record does not indicate their individual acknowledgement. The trial court and the 9th disagree. The 9th points to the efforts of the magistrate judge to ascertain whether everyone understood and the court asked that if anyone had questions, or wanted to go to trial, to so indicate. Counsel were present. There was, therefore, evidence of assent, and since there was no objection, the review was for plain error. Under this review, there was no constitutional violation. This issue does not involve Rule 11.

Williams v. Cavazos, No. 07-56127 (5-23-11) (Reinhardt with Kozinski and Whyte, D.J.).

Any opinion that starts with quoting the film "Twelve Angry Men" is a fair bet to conclude with relief. The odds are even better if the issue in the appealed case concerns a juror who wants to discuss what he considers a serious case (first-degree murder) in the face of the other jurors' impatience and frustration. Add a state trial judge who questions the jurors as to their votes, and the reluctant juror, and one should not be surprised that the 9th finds a Sixth Amendment violation. The petitioner here was charged with felony murder in a robbery that went bad. The case revolved around what petitioner's expectation was with the robbery. The jury started deliberation, and soon sent a note that one juror was being difficult. It seems that the juror said this was a serious case, disagreed with the felony murder rule (but would follow the law), and held the state to a very, very high standard. The trial court questioned the jurors, and then dismissed the hold out for being biased and substituted an alternate, who voted to convict. Initially, the 9th found that the state courts had not ruled on the Sixth Amendment issue, and that there were no bars or hurdles to consideration of the claim. Second, the 9th found a Sixth Amendment violation because (a) the court dismissed the juror not because he was biased (he was not), but because he was voting to acquit; and (b) there was no cause as the juror was deliberating, following the law, and was not improper. The petition was granted.

U.S. v. Lettiere, No. 10-30101 (Tashima with Kleinfeld and Silverman).

Things are different in Montana. The victim of the robbery here told the deputy sheriff on the scene that the defendant had robbed him of 5 lbs of marijuana and $12,000. The defendant was charged with robbery affecting commerce and use of a firearm in a crime of violence. The issue on appeal was whether the defendant had brandished the weapon. The defendant argued that he did not brandish; some of the evidence was that he did. He wanted an instruction defining it as flourishing menacingly. The court did not think brandishing was an element of the offense, but in light of the government saying it was (mistakenly), agreed. The definition the court gave, however, was the language in the statute, that the weapon had to be displayed in whole or part to intimidate. 18 U.S.C. 924(c). Of course, the 9th concluded, the statutory language trumped when clear. And clear it was. There is also a distinction between "use" and "brandish." In a concurrence, Tashima, who also wrote the opinion, explained that "brandish" was not an element of the offense; "use" was. "Brandish" is a sentencing factor to be found by the judge. However, because the government said it was an element, and shouldered the burden, charged it, and argued it, the court needs to treat it as an element. Here, the evidence supported the conviction.