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:
http://cdn.ca9.uscourts.gov/datastore/opinions/2015/07/06/12-30177.pdf
posted by Jon Sands at 7/08/2015 03:07:00 PM
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