Friday, October 12, 2012

U.S. v. Valencia-Riascos, No. 11-30307 (10-11-12) (Graber with Noonan and Rawlinson).
Defendant was convicted of assault on a federal officer. On appeal, he argued that the court erred in not excluding the officer who was the victim from the courtroom; in allowing him to sit at the prosecutor's counsel table; and in declining from requiring him to testify first.  The 9th rejected the arguments and affirmed.  Under FRE 615, a district court is required to allow a designated officer to remain in the courtroom.  The court did so here.  Other decisions, such as counsel table and order, are discretionary and were not abused.  Furthermore, the officer's presence did not violate due process.  The 9th discussed FRE 615, voir dire as to witnesses, and also noted the jury instructions as to credibility.  The jury could assess the testimony fairly.  The 9th did note that it "may be good practice to require a case agent to testify first," (12237) but it is not a presumption.  See also note 4.  Something to argue.

U.S. v. Jackson, No. 11-30147 (10-11-12) (per curiam with B. Fletcher, Pregerson, and Marshall, Sr. D.J.).
Defendant plead straight up to a sex trafficking charge and received a 480-month sentence.  Because he pled without a plea agreement, or under a conditional plea, he waived all non-jurisdictional antecedent defects.  This includes waiving his Speedy Trial argument.  Defendant also argued that the court erred in enhancing his sentence by two levels under the Guidelines for use of a computer.  The use was a posting of photos.  Since the offense was sex trafficking, the argument was that the computer was incidental.  The 9th, under plain error, looked at the Guidelines enhancement 2G1.3(b)(3) and found it applied since a computer was used to entice others.  The commentary, however, limits the enhancement seemingly to communication with the minor victim herself.  The 7th Circuit found that the commentary trumped the Guideline in explaining and interpreting.  Here, the 9th Circuit sidestepped whether there was such a direct inconsistency because, under plain error, it was not so obvious.


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