U.S. v. Goodbear, No. 10-30381 (4-13-12) (Tallman with McKeown and Moskowitz, D.J.)
The defendant's husband, and co-defendant, beat to death their young daughter. The defendant stood outside the bedroom door for thirty minutes while the beating took place. She then, with her other child, tried to cover up with a lie about the beating. She herself was pregnant at the time, a victim of abuse herself, and suffered from mental conditions, including PTSD. She pled to misprision of a felony. Her sentence was 37 months, concurrent with assault resulting in serious bodily injury (another child). The issues on appeal were the adjustments for a dangerous weapon used (a belt) for the assault and whether use of a minor could be applied to misprision when the acts were the co-defendant having the child lie. The 9th affirms on these issues. A belt can be a dangerous weapon in the context of how it was used (here against a small child). As for misprision, the defendant knew the husband was using the child to lie, and thus the adjustment permissible. The 9th also finds that the sentence was reasonable. However, it vacates and remands for resentencing because the sentence was for 37 months on misprision, and the stat max is only 36 months. The court sentenced her on both counts but said the 37 months went to misprision.
U.S. v. Kelly et al., No. 11-30084 (4-13-12)(Gwin, D.J., with Paez and Murguia).
The 9th affirms convictions against protesters at a navy base where nuclear submarines were based. The 9th rejected the defense that international treaties against bombing defenseless cities controls. The 9th also held that the jury instruction for "malicious" was not error when it described it as "wrongly and without legal justification or excuse." The defendants included two priests and an 80-year old nun.