Tuesday, August 30, 2011
Sunday, August 28, 2011
Case o' The Week: The Pursuit of Prejudice - Barajas-Alvarado and Due Process Challenges to Expedited Removals
(Nothing, that is, save "prejudice.")
United States v. Barajas-Alvarado, 2011 WL 3689244 (9th Cir. Aug. 24, 2011), decision available here.
Players: Big win for Ass't Federal Defender James Chavez, Federal Defenders of San Diego.
Facts: Barajas-Alvarado, an alien, was removed from the U.S. to Mexico several times via “expedited removal.” Id. “Expedited removal proceedings provide a streamlined process by which U.S. officers an remove aliens who attempt to gain entry to the United States but are not admissible.” Id. at *1 & n.1.
After he was later caught trying to enter again, with fake immigration docs, Barajas-Alvarado was charged with attempted illegal reentry. Id. The defense challenged the government’s reliance on the expedited removal orders as a basis for the §1326 charge; the district court rejected that challenge. Id. at *2. Barajas-Alvarado entered a conditional plea.
Issue(s): “Barajas–Alvarado claims that: (1) the Immigration and Naturalization Act . . . precludes any meaningful judicial review of an expedited removal order, including review of a collateral challenge to such an order in a § 1326 action; (2) under Mendoza–Lopez, some meaningful review of the order is constitutionally required before the order can be used as a predicate to a criminal proceeding; and therefore (3) because the statute precludes review, expedited removal orders cannot be used as predicates in § 1326 prosecutions.” Id. at *2 (citation omitted).
Held: “To convict an alien criminal defendant of illegal reentry under 8 U.S.C. § 1326, the government must prove that the alien left the United States under order of exclusion, deportation, or removal, and then illegally reentered. In . . . Mendoza–Lopez, the Supreme Court held that a criminal defendant has a Fifth Amendment right to 'some meaningful review' of a prior administrative proceeding that resulted in the exclusion, deportation, or removal order used as a predicate to a § 1326 offense. . . . Here, we conclude that Barajas–Alvarado was entitled to judicial review of the predicate expedited removal orders underlying his § 1326 prosecution but failed to show any prejudice resulting from the alleged procedural flaws in the proceedings that resulted in those orders. We therefore affirm the district court’s denial of Barajas–Alvarado’s motion to dismiss his indictment . . . .” Id. at *1 (footnote omitted) (citation omitted).
Of Note: U.S. citizens have due process rights. Aliens lawfully admitted to the U.S. have due process rights. Do non-admitted aliens have due process rights, when charged with a criminal case here in the U.S.? Seems like a no-brainer: if we’re going to incarcerate someone, lawful alien or no, surely that defendant should be afforded the due process of law?
Remarkably, this seems to be an unresolved issue. The author of this opinion, Judge Ikuta, does a little riff on this question; she notes that the government doesn’t argue the point so the Court does “not address this question.” Id. at 4 & n.8. Thankfully, for over a decade the Ninth has consistently assumed that non-admitted aliens should be afforded full due process rights – an assumption that continues in this Barajas-Alvardo decision. Id.
How to Use: The new rule of Barajas-Alvarado is that expedited removals can be used as a basis for § 1326 prosecutions, but are now subject to due process attack. Id. at *8-*9. Indeed, in this case there was a glaring due process problem: the removal proceedings were not fully translated into Spanish! Id. at *8. There is, sadly, a hitch: prejudice. Like “traditional” challenges to removals in illegal reentry prosecutions, an alien subjected to expedited removal must show that he suffered prejudice from the due process violation. Id. at *9.
Here, Barajas-Alvarado stumbles because he could not show that he was entitled to withdraw his application for admission (“withdrawal relief”); he did not, therefore, suffer prejudice. Id. For § 1326 cases based on expedited removals, take a close look at Judge Ikuta’s grappling with the defendant’s prejudice showing in this case. Id. at *8-*11. On slightly different facts, an alien might have a shot of making a “plausible showing” that he was entitled to “withdrawal relief.”
For Further Reading: For a useful summary of expedited removals see David Isaacson, Can Some Returning Nonimmigrants Challenge An Expedited Removal Order in Court? How Recent Case Law May Provide a Window of Opportunity, available here.
Image of U.S. Flag and fence from http://www.acslaw.org/acsblog/node/15775
Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org
Friday, August 26, 2011
U.S. v. Matus-Zayas, No. 09-10294 (8-24-11) (Rawlinson with B. Fletcher and Tallman).
Monday, August 22, 2011
U.S. v. Parker, No. 10-50248 (8-22-11) (Per curiam with B. Fletcher, Wardlaw and Kavanaugh, D.J.).
Why did the defendant cross the road? To protest, of course. The military on Vandenburg Air Force Base issued a "barment" letter when the defendant refused to relocate his protests from Ocean Avenue, a public road that crosses the base, to an area outside the base's main gate. This did not stop the defendant, who continued his protests. These 18 USC 1382 misdemeanors followed. On appeal, the 9th reversed, holding that 18 USC 1382, prohibiting entry onto a base, requires that the government have absolute ownership or exclusive possession of the property. The road here, Ocean Avenue, is a public one, with the county and the military each having concurrent jurisdiction. The government argues that such exclusive ownership is not required, but the circuit precedent bars such a position. Since the defendant was always on the public road's easement, his protest activities cannot violate 1328.
Congratulations to AFPD Jim Locklin of the FPD Central District of Calif. (Los Angeles).
U.S. v. Clements, No. 09-10034 (8-22-11) (Per curiam with O'Scannlain, Rawlinson, and Bea; dissent by O'Scannlain).
The defendant was convicted of a SORNA violation for failing to register as a sex offender on February 15, 2008. The 9th reverses and remands for dismissal of the indictment because of U.S. v. Valverde, 628 F.3d 1159 (9th Cir. 2010). In Valverde, the 9th held that SORNA's registration requirements did not become effective until August 1, 2008, because the AG's interim regulations failed to comply with the APA. O'Scannlain acknowledges the precedent, but points out that the Supreme Court had taken cert in Reynolds v. U.S., 131 S. Ct 1043 (2011), to resolve this circuit split as to retroactivity. The government moved to stay this appeal until the decision, but its motion was denied. O'Scannlain therefore dissents from the denial, arguing that the Court will settle the issue.
Friday, August 19, 2011
You would, however, be wrong. Dougherty v. City of Covina, 2011 WL 3583404 (9th Cir. Aug. 16, 2011), decision available here.
Players: Well-written decision by Judge N.R. Smith (above right), joined by Judge B. Fletcher. Dissent by District Judge Brewster.
Facts: Teacher Doughery was accused of inappropriately touching several students. Id. at *1. This prompted a cop to seek a search warrant; in the application, the cop described his own experience working on sex crimes. Id. The cop then opined, “based upon my training and experience . . . I know subjects involved in this type of criminal behavior have in their possession child pornography.” Id.
The search warrant issued, Dougherty’s computer was searched, nothing was found, and Dougherty filed a § 1983 claim. Id. at *2. The district court dismissed his complaint, finding the warrant supported by probable cause. Id.
Issue(s): “[W]hether evidence of child molestation, alone, creates probably cause for a search warrant for child pornography.” Id. at *4.
Held: “Under the totality of the circumstances, a search warrant issued to search a suspect’s home computer and electronic equipment lacks probable cause when (1) no evidence of possession or attempt to possess child pornography was submitted to the issuing magistrate; (2) no evidence was submitted to the magistrate regarding computer or electronics used by the suspect; and (3) the only evidence linking the suspect’s attempted child molestation to possess of child pornography is the experience of the requesting police officer, with no further explanation.” Id. at *1.
“If probable cause did not exist in [the Ninth Circuit's decisions in] Weber, it cannot exist here. In Weber, the affidavit included at least some direct evidence of the defendant’s possible possession of child pornography, including a two-year-old delivery of a catalog containing child pornography, an order from a fake catalog with image names suggesting child pornography, and general information regarding collectors, pedophiles, and molesters . . . . Here, by contrast, the affidavit includes only a three-year-old allegation of attempted molestation by one student and current allegations of inappropriate touching of and looking at students.” Id. at *4.
Of Note: In a question of first impression, Judge N.R. Smith guides the Ninth onto the right side of a circuit split. Id. at *4-*5. The Second, Sixth, and now the Ninth Circuits all reject molestation – without more – as PC for a search for child porn on electronic devices. The Eighth stands alone in tolerating this weak PC showing.
Knock wood that the Supreme Court lets this split percolate a bit – we don’t want to sweat the Fifth Vote on this Fourth issue.
How to Use: Be careful; this isn’t a bright line rule. Judge Smith hedges a bit at the end of the case, observing that “while the 'totality of circumstances' could, in some instances, allow us to find probable cause to search for child pornography, Officer Bobkiewicz’s conclusory statement tying this ‘subject,’ alleged to have molested two children and looked inappropriately at others, to ‘having in [his] possession child pornography’ is insufficient to create probable cause here.” Id. at *5 (emphasis added).
Mark well this “in some instances” caveat - this will be our next battlefield in the child porn, Fourth Amendment war.
For Further Reading: We’ve a brace of Smiths in the Ninth: Judge N. Randy, and Judge Milan (below left). Both men were civil attorneys with little exposure to federal criminal law before their Ninth gigs (though Judge N.R. Smith had been a state judge with criminal experience).
Both Smiths had deep ties to the Republican party before taking the bench.
Both Smiths were nominated by President W. Bush. See, e.g., article here.
And, both Smiths have been consistently open-minded to defense arguments on appeal. For example, both Smiths recently parted ways from Judge Bybee’s majority and joined Judge Berzon’s (effective) “dissent” in the recent Aguila Montes de Oca en banc case.
(Indeed, it was Judge Milan Smith who, in an earlier burglary case, planted the seed of doubt for California burglary that later grew into Judge Berzon’s opinion). See also, Rodriguez; see generally M. Smith blog entries here.
Those Aguila votes, and Judge N.R. Smith’s admirable Dougherty decision discussed in this post, illustrate the truth of our oft-repeated adage: 'tis always foolish to judge a judge by his or her cover.
Image of the Honorable N.R. Smith from http://georgewbush-whitehouse.archives.gov/infocus/judicialnominees/n-smith.html
Image of the Honorable Judge Milan Smith from: http://www.pasadenanow.com/_ArticleManager/publish/printer_5008.shtml
Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org
Thursday, August 18, 2011
A Defender’s Guide To Sentencing And Habeas Advocacy Regarding Bureau Of Prisons Issues
The Guide reviews programs well known to all such as the Second Chance Act, the Residential Drug Abuse Program, and boot camp. We hope to provide another level of understanding of these areas for effective advocacy. For example: How do we use the BOP’s refusal to implement the Second Chance Act’s expansion of pre-release community corrections from six to twelve months at sentencing? What are the types of decisions at sentencing that might make a difference for RDAP eligibility? What is the current status of gun possession and prior conviction RDAP litigation? How can we use the BOP’s unilateral abolition of its once-great boot camp program to argue for a lower sentence based on the “kinds” of available sentences?
We also discuss the current litigation status and suggested practices for that most screwed up of federal sentencing areas, state and federal concurrent and consecutive sentences. For those facing the nightmare of the BOP’s unlawful “death rattle rule” for prisoners who have extraordinary and compelling reasons for second look resentencing, we have some ideas for legal challenges to the BOP’s rules. We have also updated information related to classification issues and habeas corpus procedures.
We hope the information in the Guide can provide a baseline for our federal advocacy related to BOP policies and practices. The Guide is easily searchable and can be linked as a Favorite right next to the BOP’s site. For those interested in the cost to taxpayers from the BOP’s failure to implement ameliorative statutes, the written testimony in 2009 to the House subcommittee on crime referenced in footnote 1 of the Guide is linked here.
The Guide can always be improved based on experience in the field. For defenders with ideas to add, please email us and let us know how we can make it better.
Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon
In reversing the district court, the 9th focused on the language of ICRA, which states that the tribe has the authority to impose a sentence of one year on "any one offense." 25 USC 1302(7). This is pre-2010, because the recently enacted Tribal Law and Order Act (TLOA) allows such consecutive sentences by clarifying that an offense is not defined transactionally. (TLOA also imposes a limit of 9 years, increases sentences, sets due process requirements, and requires counsel, all to be litigated later). The opinion goes through how "one offense" has been taken to mean one conviction, and not a transaction analysis. Since the language is clear, the court should not consider legislative history. The one offense meaning is also buttressed by a double jeopardy/ Blockburger analysis. Petitioner's arguments cannot get around the language "any one offense."
Tough loss for Dan Kaplan and Keith Hilzendenger of the Arizona FPD Office (Phoenix) and for those other FPD/defense jurisdictions with Indian jurisdiction. Its reach will be limited, though, by TLOA.
Monday, August 15, 2011
Saturday, August 13, 2011
"In adopting its fact-based approach, the majority overrules our circuit’s controlling precedent; dismisses as 'dicta' and 'illustrative' the Supreme Court’s clear guidance on this very question, . . . misinterprets Taylor and Shepard; ignores the constraints of the Sixth Amendment, as developed in the Apprendi line of cases; misapprehends several essential characteristics of our nation’s institutions of criminal justice; and refuses to follow the limited modified categorical approach adopted by every circuit that has addressed the question since the Supreme Court made the proper approach lucidly clear in the last few years—in particular, since Johnson and Nijhawan."
United States v. Aguila Montes de Oca, 2011 WL 3506442 (9th Cir. Aug. 11, 2011) (en banc), *28 (Berzon, J., concurring in judgment). Decision available here.
Players: Hard-fought victory for the client of San Diego AFD’s Steve Hubachek and Vince Brunkow. Majority decision by Judge Bybee (below right), dissent by Judge Berzon (above left).
Facts: Aguila was convicted of burglary in California. Id. at *25. Unlike the “generic” federal definition of burglary, the California offense does not require “unlawful or unprivileged” entry into the dwelling. Id. at *26. He was later convicted of illegal reentry, and given a ten year sentence. Id. at *2. The district judge held that the burg conviction qualified as a “crime of violence” under the guidelines, and increased the sentence by 16 offense levels. Id.
The Ninth (ultimately) reversed, holding that its decision in Navarro-Lopez meant that California burgs were categorically barred as “crimes of violence,” because the state statute was missing an element of the generic offense. Id. at *3. The case went en banc, and was argued (beautifully, by Mr. Hubachek) in March of 2010.
Issue(s): “We granted rehearing in this case to reconsider the rule we adopted in Navarro-Lopez . . . , to govern application of the modified categorical approach . . . . In Navarro-Lopez, we stated that the modified categorical approach applies when the particular elements in the crime of conviction are broader than the generic crime. We then declared: ‘When the crime of conviction is missing an element of the generic crime altogether, we can never find that a jury was actually required to find all the elements of the generic crime.’” Id. at *1 (citations omitted).
Held: “[W]e conclude that Navarro-Lopez’s ‘missing element” rule is not required by the Supreme Court’s modified categorical approach established in Taylor.’” Id. at *2. “In sum, Navarro-Lopez’s ‘missing element’ rule is overruled, as are any subsequent cases to the extent that they relied on that rule and are inconsistent with the revised modified categorical approach discussed here. In any case requiring the application of Taylor’s categorical approach, in the event that we determine that the statute under which the defendant or alien was previously convicted is categorically broader than the generic offense, we may apply the modified categorical approach. Under the modified categorical approach, we determine, in light of the facts in the judicially noticeable documents, (1) what facts the conviction necessarily rested on (that is, what facts the trier of fact was actually required to find); and (2) whether these facts satisfy the elements of the generic offense.” Id. at *21.
Of Note: A one-vote majority killed the great Navarro-Lopez rule and line of cases. Judge Berzon’s "dissent" (one vote shy), is a masterpiece that – shall we say, “takes issue” – with Judge Bybee’s majority view. Id. at *27. With great detail, Judge Berzon shows why controlling Supreme Court authority (and the law of other circuits) precludes the majority’s novel rule. See id. at *29-*32 (discussing Supreme’s Nijhawan and Johnson cases). We predict another white quill for Hubachek: if the Ninth doesn’t correct this decision with super en banc review, watch for a cert. grant soon.
How to Use: The defense bar lost the war (for now), in Aguila Montes de Oca, but read the opinion closely – Aguila won his own battle. Id. at *21-*27. Applying the modified categorical analysis to Aguila’s burg, a different majority concludes that it does not qualify as a generic burglary. Id. at *26. (In fact, we predict that precious few Cal burgs will qualify under this modified categorical analysis).
This point bears much emphasis: Aguila Montes de Oca does not hold that a Cal burg, or statutory rape, or kidnaping, or escape, any other state offense now automatically qualifies as a federal generic crime. The en banc decision instead holds that the district court must now undertake a modified categorical analysis for a certain class of state convictions. This new analysis will use a novel standard created by Judge Bybee (“what facts the conviction necessarily rested on”) that cries out for defense challenge and mischief-making. Let’s oblige.
For Further Reading: As wisely crooned by Mr. Garcia, “lately it occurs to me what a long, strange trip it’s been.”
For a survey of the Ninth’s strange Taylor trip, hit this link for years of sentencing summaries on the categorical and modified categorical analysis. (Practice tip: This compilation is a useful flag for the many future Aguila Montes de Oca battles that we’ll be fighting).
Image of Godot poster from http://www.rangzen.net/2010/03/19/waiting-for-mangtso-iii/
Image of the Honorable Judge Marsha Berzon from http://www.c-spanvideo.org/marshaberzon
Image of the Honorable Judge Jay Bybee from http://abovethelaw.com/stephen-reinhardt/
Image for the Grateful Dead T-Shirt from http://www.allposters.com/-sp/Grateful-Dead-GD-Truckin-Posters_i3443450_.htm
Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org
Friday, August 12, 2011
1. If a prior conviction is missing a generic element, the 9th decides that it can now use a modified categorical approach. The 9th therefore overrules Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (en banc). Writing for one majority, Bybee tortures Taylor and Shepard to allow a court to look to facts supposedly necessary for a jury to find to support a missing element for a prior generic conviction.
2. Yet, applying that analysis to California Penal Code 459 and first degree burglary, a different majority overrules precedent that held it is a crime of violence for 2L1.2 purposes if the indictment or jury verdict has the allegation of "unlawful entry." The California statute is broader than the generic definition because its definition of "unlawful" allows for a privileged or consensual entry into a structure with felonious intent. In this case, the defendant's prior cannot be used as a crime of violence in a 2L1.2.
3. Berzon, in a compelling dissent (and concurrence for the burglary overrule), joined by Kozinski, W. Fletcher, M. Smith and N. Smith, writes a treatise on how wrong the majority is to overrule Navarro-Lopez. It is wrong because of Supremes precedent, which seeks to limit judicial fact-finding, and only uses a modified categorical approach in divisible statute matters. It is wrong because it misreads the approaches of other circuits. It is wrong because pragmatically, it creates a mess. It is wrong because it misreads so much.
4. Rawlison, joined by Gould, Silverman and Callahan, join Bybee in overruling Navarro-Lopez, but would go further and find that California's first degree burglary is a crime of violence because unlawful is unlawful. The dissent ends by saying that of course burglaries are violent.
All in all, a very strange opinion that calls out for a super-en banc or Supremes review for allowing a modified categorical approach in a "missing element" conviction.
Congrats to Steve Hubachek and Vince Brunkow of the Federal Defenders of San Diego for winning the case for their client.
Monday, August 08, 2011
U.S. v. Washington, No. 09-56569 (8-8-11) (Ikuta with O'Scannlain and Piersol, Sr. D.J.).
U.S. v. Aguilar-Reyes, No. 10-10216 (8-8-11)(Lynn, D.J., with Silverman and Graber)
Saturday, August 06, 2011
The latest example of this trend reverses suppression of child porn evidence, (allegedly) found as part of an administrative TSA search -- and does so despite damning credibility findings by the district court against the TSA screener. United States v. McCarty, 2011 WL 3319428 (Aug. 3, 2011), decision available here.
Players: Decision by Judge Hawkins.
Facts: At Hawaiian airports Transportation Security Administration (“TSA”) machines alert on bags with dense items, which are then further screened. Id. at *1. Among other things, TSA screeners search for “sheet” explosives – thin bombs that can be hidden in a pack of photographs. Id. Screeners must flip through packs of photos to check for sheet explosives. Id. Mandatory protocol requires a screener to search until safety concerns are satisfied. Id. Nothing in the policy directs a search for contraband. Id.
In this case, Simon McCarty checked bags at the Hilo International Airport (for a domestic flight). Id. at *1. When McCarty’s bag triggered a machine alert, a screener thumbed through photos of nude children within. Concerned, she read material in the bag describing sex with minors and then alerted supervisors. Id. Continued investigation revealed child porn (some of which featured McCarty). Id. at *3.
McCarty was charged with federal child sex crimes. After an evidentiary hearing, [courageous] District Judge John Michael Seabright (above left) found the TSA screener not credible and suppressed all evidence. Id. at *6. Judge Seabright determined that the screener had improperly intended to search for porn - not explosives. Id. at *5-*6.
Issue(s): “The competing interests of personal privacy and the safety of the traveling public are at the heart of this interlocutory government appeal from the district court’s suppression of all evidence obtained as a result of an airport search of . . . McCarty’s checked luggage . . . . The government argues the evidence from McCarty’s bag - which included, among other things, almost five dozen photographs of nude and partially nude minors, children’s underwear and pajama advertisements, and handwritten notes describing the molestation of children – was discovered during the course of a properly limited administrative search, the search was therefore lawful, and McCarty’s subsequent warrantless arrest was supported by probable cause. McCarty contends, and the district court agreed, that . . . [TSA] agents turned a routine administrative search for explosives into an unauthorized investigatory search for contraband.” Id. at *1 (footnote omitted).
Held: “[A]s long as
(1) the search was undertaken pursuant to a legitimate administrative search scheme;
(2) the searcher’s actions are cabined to the scope of the permissible administrative search; and
(3) there was no impermissible programmatic secondary motive for the search,
the development of a second, subjective motive to verify the presence of contraband is irrelevant to the Fourth Amendment analysis . . . . The subjective intent of the individual officer in such a search thus becomes as relevant as objective conduct only at the point at which the search ceases legitimately to be for the valid administrative purpose, as that is the point after which the administrative exception can no longer justify continuation of the warrantless search.” Id. at *11.
“The order suppressing the evidence obtained as a result of the airport screening and the follow-on consent- and warrant-based searches . . . is vacated, and the case remanded . . . for further proceedings consistent with this Opinion.” Id. at *15.
Of Note: McCarty ain’t a defense win. It is not, however, a complete rout. The decision very much does not hold that any airport search is exempt from the protections of Fourth. Indeed, Judge Hawkins goes to considerable effort to explain when the "purpose" of a search policy is relevant for the Fourth Amendment inquiry, and refuses to give a blank check to the TSA to search for contraband and bombs during its bag screenings. Notably, the Court remands for further findings on which of the materials were properly within the scope of an administrative search. Id.
McCarty is a long and complex opinion that demands a full and detailed read – be wary of AUSAs overstating the decision's holding after just skimming headnotes.
How to Use: A district judge’s credibility findings after an evidentiary hearing are owed huge deference on appeal. It is remarkable, therefore, for the Ninth to find that the district court erred in its findings that the TSA screener wasn’t credible. Id. *13. To salvage this witness the Court parses stages of the agent’s testimony, concedes much of it was contradictory, but redeems her with a detailed defense of one corner of her story. Id. at *13-*14.
Export McCarty’s hyper-technical attack of a DJ’s credibility findings into the (much more common) setting of challenging a cop’s testimony on appeal – sauce for the goose is, after all, sauce for the gander.
For Further Reading: Judge Seabright, who bravely suppressed all evidence in this terrifically unsympathetic child porn case, is a W. Bush appointee and a former AUSA. See article here.
(Always foolish to judge a judge by his cover . . .).
Image of the Honorable John Michael Seabright from http://www.grainnet.com/articles/usda_cited_by_federal_judge_for_permitting_violations_in_hawaii-36404.html
Image of goose and gander sauce from http://www.customercrossroads.com/customercrossroads/2009/07/sauce-for-the-goose-department-one-size-does-not-fit-all-in-customer-experience.html
Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org
Friday, August 05, 2011
U.S. v. Bingham, No. 06-50668 (8-4-11) (Rymer with Callahan and Ikuta). Want to learn about the Aryan Brotherhood? This case is a good place to start. It involves a RICO prosecution against AB members, including this defendant. The RICO convictions arose from evidence of a string of murders and assaults ordered by the AB. The defendant raises numerous objections, ranging from sufficiency of the evidence, to the use of gang membership evidence, to loss of evidence, prosecutorial misconduct, and RICO elements. All were denied.
Wednesday, August 03, 2011
U.S. v. Houston, No. 07-50478 (8-3-11) (Rymer with Callahan and Ikuta). In a RICO appeal from an Aryan Brotherhood "war" against another prison gang, the 9th looked at whether a Brady violation occurred because of late disclosure. The disclosure was written notes by the AUSA which did not contain mention of a defendant's involvement by a witness was deemed not material. The defense could cross examine on it, and did, and had other ammunition, too. Likewise, the 9th found no perjury by the witness. There may have been an inference of falsity, but not certainty. The 9th also held that there was no evidentiary basis to require a duress instruction. The defendants had time to alert others, or to seek help, and the planning went on for an extended period.
Close, et al. v. Thomas, No. 10-35850 (8-3-11) (Paez with Fisher and Gould). The 9th held that BOP acted within its agency discretion in setting forth the priorities for an inmate's eligibility for the Residential Drug Abuse Treatment Program. The BOP looks to how close the inmate is to release as one factor in eligibility. The BOP does not have to count the year off the inmate would receive in placing him on the eligibility. The 9th does stress the enormous demand for the program, and the need for BOP to try to meet the demand.
Tuesday, August 02, 2011
Lee v. Lampert, No. 09-35276 (8-2-11) (en banc) (Thomas writing with a concurrence by Kozinski).