U.S. v. Yepiz, No. 09-50574 (7-2-12) (Rawlinson with W. Fletcher and Mills, Sr. D.J.).

"Use it or lose it" was the practice of a district court when it came to peremptory challenges to the jury composition. Under the court's odd practice, a party had to use the challenges before a jury panel was passed, and if a panel was passed at various times, before all jurors were seated, that pass counted as a peremptory. This practice meant that when a prospective juror was seated, if defense counsel had used eight prior challenges and passed a panel twice, counsel and defendant were out of luck. This scenario unfolded here, with the prospective juror being a nonpracticing lawyer, who had once interned in a D.A.'s office. The 9th found that the court's practice violated Fed. R. Crim P. 24(b). The Rule gives the defense ten (10) peremptory strikes, and the court cannot impose a waiver rule or put obstacles on the exercise. Unfortunately for the defendant here, the review was under "plain error." The 9th found that although error occurred, it did not undermine the fundamental fairness of the trial. The defendant's convictions and life sentence are affirmed.

Ford v. Gonzalez, No. 11-15430 (M. Smith with McKeown; dissent by Noonan).

The petitioner argues that the state (California) withheld Brady information in its prosecution of him for bank robberies. Surprise! The State, in fact, did. It withheld the fact that the state's witness, who had talked to defendant, received lenient treatment in charging and sentencing. The petitioner alleged Brady violations and IAC. The state courts rejected the claims, holding that the petitioner was not prejudiced. The 9th does likewise, using AEDPA deference. The majority states that the petitioner should have inferred some benefit to the informant, who was his wife's sister. Moreover, petitioner's wife had lived in the house with the informant, drafted a letter of recantation, and should have known what benefits she got and should have let her husband know before the AEDPA statute ran. Noonan, dissenting, points out that the Brady obligation is on the state, and not on the spouse to inform on her sister.