U.S. v. Scott, No. 07-50020 (6-8-11)(Per curiam with Rymer, Callahan and Ikuta).

The 9th affirms a RICO conviction and sentence. It is an interesting, and disturbing opinion, as to what happens when a trial judge has his own way of doing things. A sample: "Although many of the judge's comments and interventions were inconsistent with standards of judicial decorum," writes the 9th, "we nevertheless conclude that they do not rise to a level that requires reversal." Here, in an Aryan Brotherhood RICO case, the trial judge (Hon. Manuel L. Real) interrupted or admonished defense counsel over 100 times. Still, the interruptions fell under the supervisory role of a trial judge, as did the jury instructions that explained that the court had to interrupt or comment but that a jury should not infer anything from it. Also falling within the court's discretion was its decision not to allow note-taking in a complex case, barring certain questions on cross examination about race in an AB trial concerning a "war" against a Black prison gang. There was no showing of prejudice by the court's giving a copy of the proposed instructions and only giving nine minutes to review them. There was no error in not giving a self-defense instruction or an imperfect self-defense instruction. And yes, the 9th affirmed the sentence.

Foot "note" (editorial complaint): Is it not troubling to the 9th that a court can say "no" to all note taking? The arguments against note taking -- distracting from the evidence or over reliance -- sure sound weak.

U.S. v. Gonzalez-Aparicio, No. 09-10447 (6-8-11)(Cowen with Silverman; dissent by Tashima).

The issue of categorical "statutory rape" as a "crime of violence" arises in the context of a 1326 sentencing. The defendant had a prior for such an act, but the state code had no age exception (the usual "within four years of age"). Does this make the state (Arizona) statute missing an element, and therefore not a crime of violence? Alas, we will never really know here because defense counsel did not object, and so review is under plain error. The 9th (written by a visiting Judge from the 3rd Circuit) rejects defendant's argument that this should be de novo review, as it is a pure legal question. The 9th also rejects the government's argument for abuse of discretion. It settles on plain error. And under plain error, the 9th found that the government was arguably prejudiced because it never had a chance to possibly use a modified categorical approach to show that the defendant had been outside the 4-year "window." The 9th even said that there existed tension, conflict, and confusion in the 9th circuit precedents about statutory rape. Dissenting, Tashima decries the fashioning of a "new and startling" method of selecting a standard of review: what does the panel want? Tashima argues that this is a pure legal issue, there is no need to use plain error or abuse, and that the court could decide it, and decide it in favor of the defendant.