Tuesday, October 04, 2011

U.S. v. Gilchrist, No. 09-10250 (10-3-11) (Bea with Schroeder and Rawlinson).

A defendant who perjures himself in an attempt to impede a civil administrative investigation conducted by a governmental investigative body that eventually results in related criminal charges can be subject to a 3C1.1 Guideline enhancement for obstruction, even if he is not aware of the pending or ongoing criminal investigation. "Wilful" obstruction means that the defendant engaged in intentional obstruction at the time of a pending investigation; it does not mean that the defendant had to know for certain that the investigation was pending. This aligns with other circuits, which go even further, such as the 11th, which does not even require a criminal investigation be underway at the time.

U.S. v. King, No. 09-30442 (10-3-11) (W. Fletcher with Aldisert and Fisher).

The 9th upholds the Safe Drinking Water Act, 42 U.S.C. 300h-2(b)(2) against a constitutional challenge that the Act violates commerce clause jurisdiction. Congress has the power to regulate interstate commerce, and safe underground water affects interstate commerce. The 9th also affirms the counts of conviction against statutory challenges that the government failed to prove that an injection of water adversely affected well water; the government need only show that the defendant failed to get a permit to inject water. The 9th also affirms the false statement conviction. The false statement need not be made to a federal agent; it must be, and was, made to an agency that has the power to exercise authority over the subject matter.


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