US v. Yepiz et al, No. 07-50051 (12-20-16)(Noonan w/Reinhardt; Nguyen dissenting). This concerns a Brady violation. Nine members of a Southern California gang appealed their RICO, RICO conspiracy, VICAR and/or narcotics convictions. The government wrote in a letter that a key cooperating witness received "no benefits" from his testimony, and was getting a lesser sentence in an unrelated case. On cross, though, the witness stated he had received $5000 after he testified before the grand jury. On appeal, the government argued that counsel cross examined on this issue. Subsequently, at a separate trial of a co-defendant, the witness said he had received between $100,000 and $200,000 from different agencies. The 9th remanded to the district court for fact finding on the Brady claim and what benefits were received.
The 9th also vacated Yepiz's conviction due to defects in the district court's handling of his request to substitute counsel.
Nguyen dissented from the vacation of conviction for structural error. Nguyen argues that the pro se letter violated local rules regarding communications with represented parties. Moreover, the 9th should have engaged in a harmless analysis.
The decision is here:
US v. Thomas, No. 14-10427 (12-20-16)(Schroeder with Wallace; Kozinski dissenting). Was the sentence unreasonable? Did the court know it could have used its discretion for a lower sentence? The defendant here was convicted of multiple counts of conspiracy, armed bank robbery, and use of a firearm. The court sentenced him to 32 year mandatory minimum for the firearm counts and then an additional consecutive 17.5 years for the bank robberies. The court stated at sentencing that "I wouldn't impose that sentence if I had the discretion. But I don't."
In addressing the sentence, the majority focused on the court's discretion to lower the guidelines sentence. It was bound by the mandatory minimums. The majority parsed the language at sentencing, and felt that the district court, in looking at the robberies, felt that 210 months was appropriate. The majority found that the court knew it had discretion, even if it said that it didn't.
Kozinski, dissenting, said that the district got it wrong. The court said it did not have discretion. It did. The defendant was 24 at the time. He will get out when he is 73. Kozinski would find this unreasonable, under this record, and would remand so the court could exercise its discretion.
The decision is here: