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

US v. Goodall, No. 18-10004 (10-13-21)(Lee w/Graber & Vratil). It is never good when the opinion early on reads that the defendant is trying to “wiggle out” of his plea. Actually, the defendant argues his plea was illegal because US v Davis, 139 S. Ct 2319 (2019) held the residual clause of 924(c) was unconstitutional for vagueness. Here, the defendant, charged with Hobbs Act robberies, faced 70 years but under a plea faced a recommended 20 years and got a sentence of 14 years. Once Johnson and then Davis came out, he argues his sentence is illegal. Not so, says the 9th, because an illegal sentence differs from an illegal conviction as legal terms. An illegal sentence is one the parties did not anticipate and violates the law—such as above the stat max. An illegal conviction is one the parties took into account when agreeing to plead. That is, the defendant took the risk of the law changes to secure present benefits. The 7th and also the 5th and 2nd agree with this analysis. Lastly, finding for the defendant would undue many pleas and make plea benefits illusory for the govt.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/10/13/18-10004.pdf

US v. Yates, No. 18-30183 (10-8-21)(Berzonw/Miller; Bress dissenting). A majority of the 9th held that a conspiracy for bank fraud and false entry had to be vacated because the theory of a duty to accurate information was too an ethereal theory for a conviction. The other conviction had to be vacated for insufficient evidence. 

Dissenting, Bress would find the convictions supported prior precept.

Congrats to Elizabeth Daly and Steve Sady, Ore FPD (Portland). 

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/10/08/18-30183.pdf