U.S. v. Gonzalez, No. 11-15025 (1-25-12) (Hawkins with M. Smith and Duffy, D.J.).

Joint Defense Agreements (JDA) can be great, except when they aren't. And, they aren't when the participants start pointing fingers in an IAC proceeding. Here, the 9th looks at a JDA between co-defendants, and spouses, charged with fraud and a fire count (10 year mandatory min). The trials were severed, when the husband said with chivalry that he did it and the wife knew nothing. After severance, the husband went first and then argued, unchivalrously, that he knew about the fraud (getting rid of a car for insurance), but not the fire. He was only convicted of fraud; the wife went down on all counts at her trial. He did not testify. The wife - the defendant here - raised IAC, arguing that her lawyer should have called the husband. The district court ordered depositions. "Wait," said husband, there is a JDA. The court shrugged and said when the parties raised IAC, the JDA became null. Not so, held the 9th, on an interlocutory appeal. Explaining JDAs, and the jurisprudence, the 9th concludes that attorney-client privilege extended to all involved. There appeared to be a JDA formed here, albeit orally. Now, comments may have been made after the JDA collapsed, but no findings were made. The 9th remanded for the district court to hold an in camera hearing to determine if and when the JDA ended, and when the comments about testifying were made.

Congratulations to AFPD Dan Blank of the Northern District of California (San Francisco) for the win.

U.S. v. Juvenile Male, No. 09-30330 (1-25-12) (Wardlaw with Gould and Bybee).

Does SORNA trump the protections of the Federal Juvenile Delinquency Act? Does SORNA survive constitutional challenges in the context of the FJDA? These issues were raised in a joint appeal brought by three juveniles convicted of aggravated sex abuse with children and ordered to comply with sex offender registration under probation or SR. The 9th held that Congress in enacting SORNA carved out an exception to the confidentiality provisions of the juvenile act, which allowed for registration which would disclose names. The 9th also upheld SORNA against a wide range of constitutional challenges in the context of juvenile adjudications.

Although losing, the Federal Defenders of Montana fought hard in mounting the challenges.