U.S. v. McTiernan, No. 10-50500 (8-20-12) (Gilman (6th Cir) with Tallman and N. Smith).
The defendant argued, in this conditional appeal, that the key piece of evidence for obstruction -- a recording of a phone call -- should have been suppressed under 18 USC 2511. That provision states that intercepted communication evidence cannot be used if the interception was for purposes of a crime. This case arises from the illegal recordings of a Hollywood investigator and his call with the defendant about the recordings. The 9th affirmed the denial of suppression, holding that the focus is on the intent of the recorder. The investigator recorded the phone call as a way of keeping a "to-do" list, and not for a crime per se, like blackmail. The opinion discusses the state of mind of the recorder, and what he intends to do with the recording. This is a good overview of the law. The 9th also found no basis for recusing the judge.
U.S. v. Dreyer, No. 10-50631 (8-21-12) (Reinhardt with Wardlaw; dissent by Callahan).
The opinion begins with a recounting of how the defendant, a practicing psychiatrist, experienced at 63 the onset of fronto-temporal dementia, which is a degenerative brain disorder. This condition causes changes in personality, impairs social interactions, causes disinhibition, and causes loss of insight and impulse control. At the age of 73, the defendant was sentenced to ten years after he plead guilty to a conspiracy to distribute drugs. He did not allocute, because of his condition, and the court had filed three expert reports that all agreed with the diagnosis. Counsel, however, never moved for a competency hearing. The 9th held that it was plain error for the court not to order, sua sponte, a competency evaluation. It so found based on the substantial records before it, and despite of the defendant answering the court's questions. Although counsel is in the best position to gauge competency, the court has a duty to act if faced with a substantial doubt, as the court was here. Dissenting, Callahan acknowledges the tragedy of the defendant, but would find that there is no plain error given that the defendant was represented by counsel, and acted and answered questions in court appropriately.