1. US v. Evans, No. 16-10310 (2-28-18)(M.  Smith w/Bates; dissent by Ikuta).

This involves SR standard conditions, which the 9th finds unconstitutionally vague.  The panel remanded to remove one condition and to get some clarity with others.  The SR standard condition #4 instructs to “meet other family responsibilities.” Does this mean to wash dishes, go to his child’s sports games, and other instances.  The panel notes the Commission has already omitted this condition and the court should do so here too.

As for #5, which requires “work regularly,” it can be vague.  Is it full time work, partial work, the same amount of work each week? The panel notes that the Commission means close to full time, but there is ambiguity. The condition is remanded to clear that up.

Condition #13 requires third parties to be notified of risks “occasioned” by the defendant’s criminal record or personal characteristics. The panel again is puzzled: whom must be notified? Friends, employers, coworkers, people he is standing in queue with? There must be further clarity and specificity.

The panel rejects other challenges and supposed procedural errors.

Dissenting, Ikuta argues that for three decades these conditions have not given rise to confusion, so why should the panel find vagueness now?  She asserts that the panel misinterpreted the void for vagueness doctrine. Ikuta says that rather than invalidating, the panel should wait for “as applied” challenges.

Congrats to Shilpi Agartala and Carmen Smarandoiu, AFPDs with Cal N (San Francisco).

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/02/28/16-10310.pdf

2. US v. Campbell, No. 17-50140 (2-28-18)(Collins w/Wardlaw & Gould).

This is another SR challenge.  Defendant argues that the SR violation is jurisdictionally invalid as the violations (1) were not alleged prior to the expiration of the SR period; and (2) were not factually related to any matter raised before the court during the SR period.  Framing it this way, one can see how the 9th will rule—the district court is not empowered to reach back. The 9th recognizes that 18 USC 3583(i) extends the power of a Court to revoke, but does so only for a reasonable period necessary for the adjudication of matters arising before expiration, if a warrant or summons had been issued.

How does the govt respond?  First, it argues for waiver.  However, jurisdiction or authority is subject to de novo and the 9th considers it here.  Second, the govt argues that if the defendant is before the Court on any other matter, she is fair game for any subsequent violation. The 9th is uncomfortable with this outer limit interpretation.  Surely there has to be tie to matters raised in a proper summons or warrant.

The 9th found one violation here (perjury) outside of the matters raised before expiration.  However, it found another allegation related to an issue alleged during the SR term.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/02/28/17-50140.pdf