U.S. v. Pineda-Doval, No. 11-10134 (8-27-12) (B. Fletcher with Canby; dissent by Graber)

(Note: This is a Az FPD case)

The 9th again reversed the district court for imposing 10 life sentences in an illegal smuggling case where death resulted. The deaths occurred as a result of roll-over when the vehicle swerved to evade a spike strip. In applying a cross reference to second degree murder, the district court reasoned that the defendant should have known that such tragedies could happen, and that he displayed little remorse. The 9th found that there was no basis for applying the cross reference, as the defendant did not act with malice aforethought or extreme recklessness. On remand, the 9th ordered the court not to apply the cross-reference, and to have a full resentencing, giving an opportunity for allocution. Dissenting, Graber argues that the remand previously was for the purpose of factfinding, and that teh district court did not clearly err in concluding the the defendant's acts were extremely reckless.

Congratulations to AFPD Dan Kaplan, Arizona FPD (Phoenix). It was his second win in this case.

U.S. v. Bailey, No. 11-50132 (8-27-12) (B. Fletcher with Kleinfeld; dissent by M. Smith).

The defendant was convicted of two counts of securities fraud. A key to the prosecution was the introduction, under FRE 404(b), of a SEC complaint, filed a year before the alleged fraudulent issuance of stock, charging a similar act, which was settled. The prosecution used the prior complaint to bolster the "wilfulness" requirement of the offense. The defendant, on appeal, argued that introduction of the complaint was error. the 9th agreed. The 9th found that the requirements of FRE 404(b) were not met. The prosecution did not introduce facts or actual acts to showed knowledge; it merely introduced the complaint, and settlement. There needed to be more. Moreover, a settlement of a civil complaint could be for a variety of reasons. The error was not harmless, even though there was a cooperating witness. This was a close case, and it revolved around intent. M. Smith, dissenting, would find the admission of the SEC complaint proper because it goes to show that the defendant was aware of the regulations given that he was sued over them a yer previously. It went to knowledge of the law. Smith believes that a 403 balancing would be more appropriate,and such a balancing would still weigh toward admission. Even if the court erred in admission, it was not prejudicial.

Miles v. Ryan, No. 10-99016 (8-27-12) (Graber with Tallman; partial concurrence and partial dissent by Berzon).

The 9th affirms the denial of habeas, which focused on the alleged IAC of counsel at sentencing. The petitioner was part of a car jacking/robbery, where a young woman was shot to death. He was not the shooter. On appeal, the petitioner argued that his counsel was ineffective because she focused on the petitioner's intoxication for mitigation rather than his drug addiction, used an unqualified expert, and failed to investigate fully the petitioner's social history. Using the AEDPA deference standard, the 9th held that counsel acted appropriately, under the state law of the time (1993) in focusing on intoxication, because drug addiction, at that time, had to be tied to the offense. Still, the focusing on intoxication at the time was not well implemented. The use of the expert, who was lacking information to draw conclusions, could well have been ineffective. However, it was harmless. Turning to the social history investigation, or lack thereof, counsel employed a strategy to focus on the petitioner's separation from his wife and death of his mother to explain a spiral downward to crime and murder. Under counsel's approach, the petitioner was a "nice young man" who ran with a bad crowd and companions because of depression; and further, he was a minor participant in a brutal murder, and could be rehabilitated. This strategy was a choice, and a valid one, and under Pinholster, the decision to embark on one strategy excused fuller investigation on another strategy. To present him as a crazed drug addict with a sordid past contradicted this strategy. Berzon concurs in affirming the decision not to grant relief for IAC in regards to presenting addiction as a mitigator and to the expert's alleged deficiencies. She would grant relief for lack of sufficient investigation into the petitioner's troubled background. Berzon argues that the state supreme court applied Strickland in a manner inconsistent with the Supreme Court's decisions regarding developing mitigation.