United States v. Taylor, No. 14-50528 (12-29-15)(Schroeder with Friedland and Chabria, D.J.). 

The 9th affirms convictions in a false statements to a bank case.  The issue is whether the false statements had to have some risk of loss to the financial institution.  The 9th held that "risk of loss" was not required nor stated in the statute, 18 U.S.C. § 1014.  The 9th looked to United States v. Wells, 519 U.S. 482 (1997), where the Court held that materiality was not required for false statements.  Other circuits have used that reasoning, and the analysis of the statute, to reject a risk of loss requirement.  The 9th joins the 4th, 5th, 7th and 10th in so holding.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/12/29/14-50528.pdf

 

McKinney v. Ryan, No. 09-99018 (12-29-15)(en banc)(Fletcher writing the majority; Bea dissenting with Kozinski, Gould, Tallman, and Callahan). [Note: Az FPD argued as amicus in this case).

In an en banc decision, the 9th reverses a death sentence and remands because the Arizona state supreme court applied an unconstitutional legal standard in reviewing death sentences.  The unconstitutionality was the court's requirement of a casual nexus between mitigation and the offense in violation of Eddings v. Ryan, 455 U.S. 104 (1982).  In so ruling, the 9th overruled its precedent in Schad v. Ryan, 671 F.3d 708 (9th Cir. 2011), which barred an assumption of unconstitutionality absent a clear indication of application of the wrong standard.  The Arizona Supreme Court followed its erroneous unconstitutional standard for fifteen years.

Here, the unconstitutional casual nexus was applied to the petitioner's PTSD.  The state court refused to apply the PTSD  as a nonstatutory mitigator. This refusal was counter to clear constitutional law under Eddings.

The error was not structural.  However, it had a substantial and injurious effect on the sentence, and thus was prejudicial within Brecht v. Abrahamson, 507 U.S. 619 (1993). 

The dissent argues that the majority misconstrues Supreme Court precedent, ignores AEDPA deference, misstates the record, and attacks the Arizona Supreme Court.  As for prejudice, the dissent accuses the majority of downplaying the gruesome facts to manufacture prejudice.

Congrats to amicus AFPDs Michael Burke and Robin Konrad of the CHU, Arizona FPD.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/12/29/09-99018.pdf