1.  US v. Tat, No. 19-50034 (10-21-21)(Graber, Miller, & Hillman). The 9th vacates a conviction for false entry in bank records because, well, the entries weren’t false. They were true: money in and money out. The entries of cashier’s checks were accurate; the structuring may have had a nefarious purpose (money laundering) but that is a different offense than 18 USC 1005. The 9th affirmed another count because the payee in that entry was fictious.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/10/21/19-50034.pdf

2. McGill v. Shinn, No. 19-99002 (10-21-21)(Bybee; concurrence by Collins; partial concurrence and partial dissent by M. Smith). This is an AZ FPD CHU case. The 9th affirms denial of a capital habeas petition under AEDPA deference. The interesting issue here is the ex post facto claim, which is the thrust of M. Smith’s dissent. The defendant committed this offense shortly after Ring, but before the AZ legislature enacted a fix. He is the only petitioner in this stance. The 9th concludes the state supreme court acted reasonably when it found the new legislation was “only” procedural and not substantive. M. Smith takes its, and argues the petitioner, in that period, did not have a death penalty and could not be sentences to death.

Kudos to Jennifer Garcia for a spirited and vigorous argument (AFPD AZ CHU). The dissent hopefully will lead en banc.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/10/21/19-99002.pdf