U.S. v. Evanston, No. 10-10159 (7-5-11) (Hawkins with Kozinski and Gould).

The jury was hung. An Allen charge had been given. Declare a mistrial? Wait, said the court, why don't we have the jury say what issues trouble them, and have the lawyers re-argue? Over objection (key), that is what happened. On appeal, the 9th says: Wait, that is a terrible idea, and vacates and remands. The 9th finds no basis to allow such a procedure in federal court. It recognizes that judges have a great deal of discretion in running trials, and administering jury deliberations, but having them define issues after declaring themselves at an impasse, and then having lawyers argue, has the lawyers become part of the deliberations. Moreover, the court arguably went against the 9th's own model instructions that state that the jury should not tell anyone, including the court, how they stand. Issue defining does. Recognizing that several states do allow such a process, including Arizona (the court sits in the District of), the 9th stresses that the federal rules do not. The states had the benefit of a rule making process, and their own jurisprudence, that differs from the federal rules. The only other circuit that touches on this rejected it, and while not outright condemning the procedure, cast grave doubts on its use.

U.S. v. Rahman, no. 10-10293 (7-5-11) (O'Scannlain with Gould and St. Eve, D.J.).

Once a defendant enters into a plea agreement that waives all appeal rights, that language will be construed to include an appeal of a denial of a motion to withdraw his plea. Here, the defendant entered into a plea and plead guilty. He later sought to withdraw his plea, stating that he was "mislead" and "misguided" by his counsel. The court gave him new counsel, who proceeded to move to withdraw the plea, although not alleging specifically the basis for the misguiding. The 9th finds that general waivers of appeal apply generally, and cover all appeals, even a motion to withdraw a plea. The defendant can raise IAC, but not here, where the record was insufficient.