US v. Wilson, No. 18-50440 (9-21-21)(Berzon w/Watford & Whaley). This is an interesting and important case regarding “private searches” and passing the information over to law enforcement. This involves hashtags not equaling an actual look. Google detected uploads as email attachments that were keyed to child porn. They passed the information over to law enforcement but never actually examined the uploads. The gov’t overstepped the information given because it learned new information than what was presented in the uploads attachment and the gov’t looked further.

The decision is here: 

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/09/21/18-50440.pdf

US v. Schaeffer, No. 19-30266 (9-16-21)(Bea w/Ebel & VanDyke). This is a Faretta case. The 9^th affirms the convictions and sentences of a defendant, with a long history of mental illness, who embarked on self-representation after going through four lawyers (make that seven after the case). The case does show the interplay of possible gamesmanship and the Sixth Amendment right to self-representation. The 9^th gives a paean to the right of self-representation and warns against imprisoning one with constitutional privileges. Sadly, the defendant has 40 years to ponder his right to represent himself. The interesting issue, and one of first impression, is where the court, in the Faretta colloquy, mistakes the minimum sentence. Here, with various explosive charges, the defendant faces a mandatory 40 years if the counts were found to stack. The court stated it was possible they would stack. The 9^th concluded the misstatement made no difference, although it paused with that and looked at the record (the defendant had told the court he was steadfast in wanting to represent himself and that he knew the penalties). The 9^th stresses there is not a strict checklist or script to follow. The court must advise the defendant of the dangers (and follies) of self-representation, but there is no rigid rule. The warnings were adequate here. The 9^th also upheld the court denying the request for counsel after a jury was selected: it was too late, and the court’s determination of gamesmanship was not clear error.

Susan Russell, AFPD Oregon (Portland) earns kudos for this difficult appeal.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/09/16/19-30266.pdf

Bolin v. Davis, No. 16-99009 (9-15-21)(Bress w/McKeown & Nguyen). Under AEDPA deference, the 9^th affirms denial of a habeas petition. The 9^th held no IAC for not pursuing a change of venue based on pretrial publicity. The 9^th also found no possibility of IAC, under AEDPA, when new counsel for the sentencing phase failed to seek a continuance to develop additional mitigation. Under the facts, the new counsel and investigators had about two months to take up mitigation. They made efforts at interviewing and examining records. However, even assuming ineffective mitigation, the panel concluded that no “fair-minded jurist” could find prejudice. The “other” evidence was cumulative or would not change the outcome. This held true for the compelling evidence of childhood abuse. However, the result would have been the same. The 9^th would not find per se IAC for failure to call an expert. The other evidence, such as brain injury, mental health issues, and military service, was not strong enough.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/09/15/16-99009.pdf

1. Jurado v. Davis, No. 18-99009 (9-10-21)(Thomas w/Graber & Clifton). AEDPA deference results in the 9th affirming this capital petition. This even applies to a double jeopardy claim. The state court dismissed a “special circumstances” charge, and the petitioner immediately pled to the remaining charges. However, the dismissal was reversed, and the petitioner then withdrew his plea. The California Supreme Court found no double jeopardy, and while the 9th thinks it is a close call, under AEDPA, the decision is not unreasonable. Other evidentiary issues, such as admission of a videotaped deposition, were not unreasonable.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/09/10/18-99009.pdf

2. Ervin v. Davis, No. 16-99010 (9-10-21)(Owens w/Gould & Forrest). This is a Batson remand in a capital case given Flowers v. Mississippi, 139 S. Ct2228 (2019). The record is replete with questionable rulings, and nonsensical reasons for striking jurors. The 9th remanded for the district court to employ a “holistic” approach to various factors, such as statistical evidence, disparate questioning by the prosecutor, side by side juror comparisons, prosecutorial misrepresentation of the record, and other factors.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/09/10/16-99010.pdf

US v. Green, No. 20-50257 (9-8-21)(Callahan w/Hurwitz; partial concurrence and partial dissent by Paez). In a Supervised Release (SR) revocation appeal, the 9th holds a defendant violated one of his SR conditions when he “patronized” a website offering free pornography. The defendant had pled guilty to a CP charge. One of his condition was not to “patronize any place” where sexually explicit materials or entertainment are the primary materials. The defendant clicked on a free porn website. He argues on appeal he had to purchase goods or services for patronization. The 9th rejects this argument, given the court’s oral instructions and the common understanding of the digital world.

Paez, dissenting, finds the panel’s opinion overbroad. The district court had prohibited viewing images or videos depicting sexually explicit conduct. The defendant violated that condition. The panel did not need to conclude that clicking on a website is patronizing it. Further, to Paez, the approach is wrong. The condition is not sufficiently clear. The definition of “patronize” does not support a mere clicking. The district court could have prohibited visiting any website; it didn’t. The panel should not rewrite the condition.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/09/08/20-50257.pdf

US v. Juliano, No. 20-35395 (9-3-21)(VanDyke w/Bea & Bress). It is not IAC for counsel to fail to anticipate enactment of legislation. This is a habeas petition. The petitioner entered into a plea for a drug offense under which the gov’t would only file one enhancement. The petitioner got a benefit, along with a 240-month mandatory sentence. Several months later, the First Step Act was enacted and signed. The 9th cautioned against second guessing under Strickland whether counsel should have waited; the petitioner did get a benefit and the passage of the First Step Act was anything but smooth.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/09/03/20-35395.pdf