Tuesday, November 15, 2005

US v. Howard et al, No. 03-50524 (11-15-05). In a special action, the FPDs of the Central District of Ca. challenge the policy of the US Marshal Service that mandates the leg shackling of pretrial detainees making their initial appearance. The 9th (Schroeder) recognizes that this is a valid special action (mandamus), and acknowledge that the shackling diminishes the liberty of defendnats and distracts from the dignity and decorum of he court. Such a policy therefore must have adequate justification. The 9th concludes on the record before it that there is no such justification. The Marshal basically just did it for security reasons without justifying the need or problems or dangers. The 9th does state that the decision does nor preclude reinstatement of the policy upon a "reasoned determination that it is justified on teh basis of past experiences or present circumstances in the Central District." Wallace dissents, arguing that the security reasons are obvious, that protection is critical, and that the inconvenience and loss of liberty is overblown..
Congrats to FPD Maria Stratton and her office for raising and winning (in this round) this issue.
"The [defendant] have nothing to lose but their chains. They have a [case] to win. "
--The FPD Manifesto

US v. Norris, No. 03-10437 (11-10-05). The 9th reaffirms the corpus delicti rule that a confession alone cannot support a conviction. The defendant was charged with three counts of sexual abuse of his five-year old niece. There was a confession, found to be admissible (and affirmed). The test of whether a confession has been corroborated sufficiently was stated in Lopez-Alvarez, 970 F.2d 583 (9th Cir. 1992). The govt must introduce sufficient evidence to establish that criminal conduct at the core of the offense charged occurred; and it must introduce independent evidence tending to support the trustworthiness of the confession. Here, one act occurred around Thanksgiving; the other two were fuzzier (summer for one). The first count was supported by physical and testimonial evidence. The 9th found that there was some corroborating evidence of the third count, specifically testimony that a touching occurred "around then" even if it wasn't genitalia to genitalia. The second count though had no supporting evidence except for the defendant's confession and had to be reversed. The 9th also allowed in FRE 414(a) evidence of other child molestations without a corpus delicti test for them, stressing that the test is preponderance of the evidence
Congrats to AFPD David Shannon of D. Ariz. (Tucson).

US v. Labrada-Bustamante, No. 04-30082 (11-10-05). This was a large meth conspiracy. Defendants raised a multitude of issues attacking the evidence and raising constitutional error. All were denied. the more interesting ones were a Blakely challenge to the safety valve, arguing that the elements to satisfy the safety valve must be found by the jury. The 9th emphasized that mandatory minimums do not implicate Apprendi, and here mandatories were found by the jury., The mitigation can be judge determined. The 9th also held that the gov't's cross appeal of a defendant's collateral attack on a prior was proper. The defendant had a prior drug conviction. Section 851(e) allows collateral challenges, but the conviction must be less than five years old. This one wasn't. As such, the challenge was improper and the defendant faced a 20 year mandatory. The defendants also raised various sixth amendment (IAC) and eighth amendment (cruel and unusual) challenges to the sentences. The challenges were to no avail.


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