Wednesday, July 08, 2015

Three opinions today -- one conviction affirmed, one reversed, and one set of opinions on denial of rehearing en banc.

United States v. Salman, No. 14-10204 (Rakoff (DJ, SDNY) with Christen and Waford) --- The Ninth Circuit affirmed convictions for security fraud and conspiracy to commit securities fraud (commonly known as "insider trading"), holding that the government need not prove that the defendant knew that a recipient of inside information (a "tippee") would "personally benefit" from that information.  The court declined to adopt the defendant's reading of the Second Circuit's decision in United States v. Newman, 773 F.3d 438 (2d Cir. 2014), holding instead that this case was governed by a decision of the Supreme Court and not by the facts presented in Newman.

For appellate practitioners -- note that the court reached the issue in this case notwithstanding the fact that it was not made until the reply brief.  Newman was decided after the opening brief was filed, and both parties had an opportunity to discuss the Newman case at oral argument, so the government wasn't prejudiced from the timing of Newman.

The decision is here:

United States v. Guzman-Ibarez, No. 14-50142 (Fernandez with Bea; Fisher concurring and dissenting) --- The defendant in this case had been convicted of robbery and sentenced to four years in a California state prison.  In 1995, when his deportation proceedings began, he had not committed an aggravated felony, and thus was eligible for discretionary relief from deportation.  Because the defendant in this case was eligible for relief from deportation, but the immigration judge did not advise him that he was eligible for such relief, the Ninth Circuit held that his removal proceedings were fundamentally unfair.  The district court hadn't addressed prejudice, however, and so the court remanded the case to let the district court consider that aspect of the collateral attack on the underlying removal order, see 8 U.S.C. § 1326(d), in the first instance. 

However, because the defendant was not granted legal permanent resident status at the time of entry, he was not eligible for hardship relief from the removal order.  Judge Fisher disagreed, because he believed that an alien who is plausibly eligible for LPR status at the time of admission and is later granted LPR status is eligible for hardship relief from deportation.

Today's words of the day are peregrine, vilipend, and praxis.

Congratulations to Deputy Federal Public Defender James Locklin of the Central District of California.

The decision is here:

United States v. Bryant, No. 12-30177 (order denying rehearing en banc; opinions by Paez, Owens, and O'Scannlain) --- Judge Paez wrote the opinion for the three-judge panel in this case, holding that a charge may not be brought for domestic assault by a habitual offender under 18 U.S.C. § 117(a) when the charge is based on tribal-court convictions that did not comply with the Sixth Amendment.  That holding, Judge Paez explained in his concurral opinion, flows from United States v. Ant, 882 F.2d 1389 (9th Cir. 1989), which protects the "Sixth Amendment's core interest in reliability" of prior convictions that are used as elements of a crime.

Judge Owens characterized the defendant as someone who "likes to beat women" but had repeatedly received no more than a "slap on the wrist" for doing so -- one of the defendant's prior tribal-court sentences was for a year in jail.  Complaining that the convictions are still valid even if the sentence is not, see Alabama v. Shelton, 535 U.S. 654 (2002), Judge Owens lamented that the panel's opinion "wiped" § 117(a) "off the books."  "The result is to cut the Navajo Nation in half when it comes to combating this plague [of domestic violence in Indian country], as the border between the Ninth and Tenth Circuits divides its land.  The Michael Bryants in Utah and New Mexico face the music of § 117(a), while the Bryants in Arizona play musical chairs, moving from one brutal beating to the next with virtual impunity."

Judge O'Scannlain agrees with Judge Owens, and explained why he believed Ant was incorrectly decided and should be revisited.

There is now a clear split between the Ninth Circuit (on the one hand) and the Eighth and Tenth Circuits (on the other).  Is a cert grant on the horizon in this case?

The three-judge panel opinion is here:

The concurral and dissentals are here:


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