U.S. v. Rizk, No. 10-50051 (10-19-11) (Gould with Schroeder and McCuskey, Chief D.J.).

In an appeal from a loan fraud, bank fraud, and conspiracy trial, the 9th affirms convictions and sentences. The defendant was a licensed appraiser that allegedly appraised too high. The 9th found sufficient evidence to support the conviction, and also affirmed numerous other contentions. This is a good road map for evidentiary issues in mortgage fraud matters. Of special note was the discussion by the 9th on FRE 1006 concerning summaries (which will be used a lot in document cases) and their interplay with FRE 404(b) (other act evidence). The 9th also corrected the restitution so that the victims did not receive more than their losses.

U.S. v. Wilkes, No. 08-50063 (10-19-11) (Alarcon with O'Scannlain and Silverman).

This appeal arises from prosecutions related to the bribery prosecution of Congressman "Duke" Cunningham. The 9th remands for an evidentiary hearing on whether the government's refusal to grant immunity to a defense witness, after granting immunity to many of its witnesses, so skewed the trial as to require a constitutionally mandated grant of immunity by the prosecution. In this, the 9th follows its precedent in U.S. v. Straub, 538 F.3d 1147 (9th Cir. 2008). In Straub, the 9th held that a district court can compel a defense witness's immunity without a finding of prosecutorial misconduct. It can do so in "exceptional cases" where the fact-finding process is so distorted by the government's granting immunity to its own witnesses while denying immunity to a defense witness who has directly contradictory testimony. Straub, 538 F.3d at 1166. Here, the defense witness was found by the court to have relevant, contradictory evidence. The court thought it needed to find prosecutorial misconduct (Straub came out subsequently). As to various challenges for Brady / Giglio evidence, the 9th found found no violations because of no prejudice. The 9th also held there was not prosecutorial misconduct in argument, as the prosecutors were responding to defense arguments. There was also no Santos violation.

Congratulations to Shereen Charlick and Gabriel Cohan of the Federal Defenders of San Diego.