U.S. v. Della Porta, No. 10-50168 (8-8-11) (Silverman with Tallman and Clifton).

The 9th in U.S. v. Evanston, 2011 WL 2619277 (9th Cir. July 5, 2011), held that a judge impermissibly coerces a jury where, over defense objections, and after an Allen charge, and learning of the contested issues, it permits supplemental argument focused on those issues. What about when the jury is deadlocked, but no Allen charge had yet been given, and the issues are unclear? Why, then it is okay. In a strained opinion, the 9th makes distinctions while ignoring the dangers inherent in supplemental closing arguments. In this case, involving embezzlement from a union, the jury deadlocked. The jury had sent out questions that pretty much highlighted what their disagreements were. The court, which had not given an Allen instruction, then suggested, "Hey, would supplemental argument help?" The jury foreperson said he did not think so, but reconsidered when the jury went back. Over defense objection, because, after all, the matter was now in their hands, the court had the lawyers re-argue. A guilty verdict came soon thereafter. On appeal, the 9th distinguished Evanston over the Allen charge and the lack of identification of issues. In so deciding, the 9th ignored the fact that the jury questions signaled the issues at play; brushed aside the extraordinary actions of re-argument in footnote 3, rejecting the argument that Fed. R. Crim. P. 29 sets the order of closing argument, and downplays the alternative of other less intrusive alternatives, such as additional instructions, or re-reading the instructions, or even the Allen charge itself. The 9th seems not to value the fact that those jurisdictions that allow such arguments do so through an explicit rule making procedure, as explained in Evanston. Finally, the jury is no longer neutral when there is re-argument: sides have been taken and arguments made inside the jury room. Re-argument becomes a way of intruding into the jury deliberation. The 9th had the opportunity of following Evanston's clear rule; instead, it smudged the bright-line. As for the remaining contention that the court erred in failing to give a theory of defense instruction, the 9th found no such error.

U.S. v. Washington, No. 09-56569 (8-8-11) (Ikuta with O'Scannlain and Piersol, Sr. D.J.).

The 9th found that petitioner's Fed. R. Civ. Pro. 60(b)(4) motion was really a disguised 2255 motion and, as such, the district court lacked jurisdiction to consider it. Rule 60 motions go to the integrity of the federal habeas proceeding, such as fraud on the court or an error in a procedural ruling. Motions that re-urge claims already dealt with are considered disguised 2255 motions. Such is the case here.

U.S. v. Aguilar-Reyes, No. 10-10216 (8-8-11)(Lynn, D.J., with Silverman and Graber)

(Ed. note: this case is an Arizona FPD one).

Fed. R. Crim. P. 35(a) allows a court, within 14 days, to correct a sentence that resulted from arithmetical, technical, or clear error. Is this jurisdictional? The defendant here received a +16 adjustment in a 1326 sentencing on March 1st. On March 5th, he filed a motion to correct the sentence arguing that the adjustment should not have been applied. On March 29th, 28 days after sentencing, the court held a hearing and indicated that it would change the sentence. The government objected. On April 12th, at a subsequent hearing, the court questioned its jurisdiction, but re-sentenced anyway (to time served). On appeal, the government argued that the court lacked jurisdiction. Defendant argued that the 14 days rule was not jurisdictional, but that the 14-day time limit resembled claim processing rules that go to the orderly conduct of business. Defendant cited a series of recent Supreme Court decisions that have considered deadlines to be more akin to claim processing than jurisdictional bars. Unfortunately for defendant, there is circuit precedent for the jurisdictional bar as well Supreme Court precedent in a predecessor to Rule 35. U.S. v. Addonizio, 442 US 178 (1979). The rule is jurisdictional until it is over-ruled by the Supremes or another en banc. The 9th even said that if the court had jurisdiction, it would still have been error.