US v. Bonnett, No. 15-10557 (10-10-17)(per curiam w/Schroeder, Tallman & Whaley).

"The issue of first impression is whether an obstruction of justice enhancement may be founded upon a finding of malingering." (3). The 9th holds "yes." This was for a competency evaluation.  The defendant changed behavior when interacting with staff versus medical personnel, refused to complete tests, and made admissions in phone calls to his wife.  The defendant argued that an obstruction enhancement chills his right to obtain a competency hearing.  The 9th brushes this aside, acknowledging that a defendant has a right to be deemed competent, but does not have a right to pretend he is not competent.  The 9th joins the Third, Fifth, Seventh, and Eleventh Circuits on this issue: "We join the other Circuits in holding that malingering may support an obstruction of justice enhancement pursuant to U.S.S.G. 3C1.1." This is a corollary to a previous precedent that allows obstruction for a refusal to participate in court-ordered testing.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/10/15-10557.pdf

Kirkpatrick v. Chappell, No. 14-99001 (10-10-17)(Reinhardt w/Wardlaw; dissent by Kozinski).

In a capital petition, the 9th holds that the district court erred in dismissing 20 claims as unexhausted.  The dismissal was based on a letter the petitioner had handwritten and filed with the California Supreme Court asking that his claims be dismissed as he wanted his sentence carried out.  The state court appointed a referee to determine if the waiver was knowing and voluntary.  The referee said "no," but the court declined to follow the recommendation and dismissed.  The federal district court dismissed federal claims for being unexhausted based on AEDPA deference.

The 9th parsed AEDPA's language, concluding that the deference refers to claims adjudicated on merits.  This dismissal was based was not on the merits of claims, but was whether it was knowing and voluntary. The record does not support evidence that this was a knowing and valid waiver.

Dissenting, Kozinski announces that his dissent doesn't matter because California does not have a functioning death penalty.  Kozinski would find sufficient evidence, and bemoans the fact that, to him, the petitioner is "crazy like a fox," and is playing the courts for these many years.  Kozinski continues to lament the promise of the death penalty, castigates some of the litigation as to lethal injection, and concludes that the death penalty is a charade in California.

Congrats to AFPDs Patricia Young and Mark Drozdowski, FPD Cal Central (Los Angeles CHU).

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/10/14-99001.pdf

US v. Slade, No. 16-30150 (10-10-17)(Bea w/McKeown & N. Smith).

 

The 9th vacates a sentence and remands because Washington's second degree assault, 9A.36.021, is not a "crime of violence" under the guidelines.  Applying the categorical approach, the panel holds the statute is not divisible.  The 9th concludes that the Supreme Court's decisions in Deschamps and Mathis overrule prior 9th precedent finding this statute divisible.

Congrats to AFPD Vanessa Pai-Thompson, FPD Wa Western (Seattle).

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/10/16-30150.pdf

US v. Preston, No. 15-10521 (10-17-17)(Berg w/Reinhardt; Kozinski concurring). Note:  This is an Az FPD case.

The 9th reverses convictions for agg sex abuse due to evidentiary errors and prosecutorial misconduct.  The offenses allegedly occurred in 1998, and were only remembered in 2012, 14 years later, when the victim was in trouble with the law and had drug issues.  At trial in 2015, the errors cumulative effect was to render the trial fundamentally unfair.  The evidentiary errors concerned an expert who gave improper expert testimony related to the victim's truthfulness as to the sexual abuse and characteristics of child sexual victims; and FRE 404(b) from an ex-wife about masturbation and fantasies that differed or were not tied to the acts here (oral sex with a 10 year old). It was offered seemingly for intent.   The prosecutor engaged in misconduct by vouching, alluding to defendant's failure to testify and rebut the accusations, and misstatement of the evidence.

Concurring, Kozinski states that in any retrial, the prosecution can try to link the evidence of fantasies and masturbation to another basis for admission, such as sexual arousement by young boys.

Congrats to Edie Cunningham, AFPD, D. Az (Tucson Appeals) and Jay Sagar, Trial AFPD, for the win.

 
http://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/17/15-10521.pdf