Tuesday, April 11, 2006

Landrigan v. Schriro, No. 00-99011 (3-8-06)(en banc). The 9th (Hawkins) remands a death case for an evidentiary hearing on sentencing IAC. The focus was on the failure of trial counsel to conduct thorough sentencing mitigation. The petitioner had supposedly waived mitigation, but a careful review of the record indicates that the petitioner waived the two witnesses present (relatives). There was a plethora of other mitigation -- horrific child abuse and abandonment and severe biological and physical ailments. The 9th also emphasized that the Supremes' recent opinions had stressed the obligation to conduct far-reaching mitigation, and that was simply not done in this case. In dissent, Bea and Callahan recognized the ineffectiveness, but given the facts of this case (brutal gay murder, a prior murder, drug abuse, antisocial etc), any ineffectiveness was harmless.

Valencia v. Gonzales, No. 03-72028 (3-6-06). The 9th takes a Taylor categorical approach to Cal. Penal Code 261.5(c), which is the statutory rape offense. The code does not require force, but penalizes as a misdemeanor or felony sexual intercourse with a minor three years younger than the perpetrator. The fact that there is no force requirement is key to the 9th finding that under Taylor, it is not categorically an agg felony. The example is a 17 year old adolescent could have consensual sex and it not be violent, nor the fact that perpetrator is older may not implicate, on the face, physical or emotional coercion. Using a modified Shepard approach, there were no facts here to indicate that the victim was unusually young, or that force was used.

US v. Chen, No. 05-10108 (3-2-06). An INS agent questioned the defendant who was being held on a deportation warrant. The agent suspected a third party (Li) of running a smuggling ring, and wanted to get information. No Miranda warnings were given. Defendant was eventually charged with perjury for statements he made as to how he got to Guam (supposedly jumped ship). The district court had suppressed, and the gov't took this up. The 9th affirmed the suppression, holding that the questioning of the defendant was not solely for administrative purposes, but was done so in a criminal investigation frame of mind. The agent suspected Li of smuggling, thought defendant was suspicious, and wanted to put pressure. The 9th also found that the potential for a 1325 illegal entry charge was there. The 9th comes very close to holding that all 1325 possible cases get Miranda warnings, but it held back at the last moment, stressing that the heightened focus on defendant here compelled the giving of Miranda.The 9th notes, but does not discuss, that the defendnat had counsel at the time of the questioning regarding, apparently, the immigration matter. The attorney was never called.

Congrats to FPD John Gorman of D. Guam.

US v Frank, No. 04-10343 (3-2-06). The 9th decides that the bank robber who utters the phrase "I have a gun" deserves, in this case, a two level enhancement for threat of death. the 9th declines to adopt a per so rule that it will always constitute a threat of death, because there might be unusual circumstances that mitigate otherwise. The 9th though made clear that in most, but not all, circumstances, the phrase "I have a gun" ge s the enhancement. The test is whether a reasonable victim would have had fear instilled, and this requires the use of an objective victim standard and the exact words or tone or sense of urgency uttered by the defendant. The 9th joins the others circuits that have so held (2nd, 4th, 5th, 6th, 7th, 8th, 10th, and 11th).

US v. Bear, No. 04-50161 (2-24-06). The defendant worked as a CI for a renegade LAPD officer. She mounted a defense that she informed the officer of her drug activities ("lets make a deal!") and so was acting pursuant to public authority. She testified to this,and argued this, but never asked for a public authority instruction. Plain error. The 9th though finds that the court should have, sua sponte, given such an instruction because it was so obvious what her defense was, the jury needed the guidance. The court just couldn't sit back and not instruct. The 9th stressed that "[w]hen a defendnat actually presents and relies upon a theory of the defense at trial, the judge must instruct the jury on that theory even where such an instruction is not requested." The gov't responded to her defense, and the court had the 9th Cir. Model Instruction at hand. The error also affected her substantive rights, and caused the verdict to be in question. The 9th also found that although the gov't stipulated that it wouldn't call the LAPD detective as a witness, it didn't violate the stip to call him in rebuttal.

US v. Lopez-Perera, No. 05-50102 (2-21-06). Illegal aliens can't have firearms, but has an alien illegally entered with a gun if he is stopped at the POE. The defendant here drove up in a van, was sent to secondary, and a firearm was found in the vehicle. At the bench trial, the defendant argued that under 18 USC 922(g)(5)(A), an illegal alien must have entered (found or come into) rather than just approach or come to the country. Congress left this unclear in the statute. The 9th looked at the agency interpretations, and the highly technical terms of immigration, and decided that the defendant had to have entered and not be outside the country or under the official restraint doctrine. The gov't argued that "official restraint" doctrine only applies to illegal reentries, but the 9th held otherwise. The 9th stressed that Congress knows the difference between "comes to" and "into" and cited various other statutes.

The case is remanded for a resentencing.

US v. Morales-Perez, No. 05-10115 (2-22-06). Is "purchase for sale" drug trafficking? The 9th said "no" under Calif. Health & safety Code 11351.5. The defendant here was convicted of illegal reentry of a deported alien. His sentence is enhanced for a prior agg felony because the court found that distribution of drugs include purchasing for sale. The 9th (Goodwin) disagreed. Looking at the literal terms of the statute, the 9th gave force to the state's use of "purchase," differentiating it from the disjunctive "possession for sale." The 9th adopts the statutory canon to give effect to every clause and word, and here it gives a separate meaning to "possession" and to "purchase." Purchase of a drug for sale moreover is not the same as possession for sale, and "purchase" falls outside the Guidelines' definition of drug trafficking (it doesn't list purchase in 2L1.2). On remand a modified categorical approach may be used under Taylor and Shepard. Of note is the fact that O'Scannlain joined Goodwin.Tallman stridently dissented, arguing that the spirit of the enhancement sought to ratchet up the penalties for drug sales, and purchasing for sale is but one variant. Tallman is aghast at the fine distinction between words, and just because the state has a statute that provides various ways to commit an offense shouldn't render the statute's efforts overly broad. Purchase, to Tallman, must involve a possession, actual or constructive.Of course, under the holding, the case is remanded for resentencing under the advisory guidelines, so the defendant may have won the battle but lost the sentencing war
Moreover, the gov't is able to use a modified categorical approach. This decision also conflicts with the approaches taken by other circuits in interpreting similar state statutory language. The Supremes might be interested.

Congrats to AFPD Rene Valladares of D. Nev (Las Vegas) for the win. All of our defendants with prior California 11351 purchase conviction thank him.

US v. Bad Marriage, No. 05-30149 (2-22-06). The defendant's name smacks of a sobriquet from a morality play. He is not a nice guy, getting out from tribal jail to attend an AA meeting, but ending up with his girlfriend who he savagely assaulted and possibly raped. he plead to assault/serious bodily injury. The court, in his sentencing pre-Booker, departed upward based on under-representation of criminal history. The 9th remanded, holding that there were no facts that supported an upward departure, and that he should be sentenced within the guideline range. Booker then came down. the district court then resentenced him to the same term. In affirming the sentence, the 9th reasoned that the court took into account the 3553 factors, and that the guidelines didn't address the harm, or the danger of the individual, sufficiently, or even appropriately. the 9th also held that such a sentence didn't run afoul of the mandate because the guidelines were rendered advisory. The 9th finally just stated that such a sentence was reasonable. In a vigorous and vehement dissent, Berzon argued that the district court violated the mandate, which instructed the court to sentence within a guideline range. Moreover, the previous panel had stated that there were no facts to warrant a higher sentence, and this recalibration was wrong. Berzon would also apply the law of the case doctrine.This is an interesting sentencing case. yes, the defendant got a higher sentence under Booker, but the reasons that the court used -- that he was a dangerous man and needed prison -- can just as easily be flipped to argue that a defendant shouldn't be sent to prison because it isn't appropriate for his offense, or the other 3553 factors. Indeed, the court sets out a framework for such arguments because of the court's disdain for the guidelines. If the court can brush aside the guidelines because it obviously didn't deal with the savagery of the attack, then the guidelines should just as simply be ignored when an offense is not of the "heartland" variety.

This analysis harkens back to the in/out guideline analysis advocated by many commentators in the early days of the Guidelines Mandatory Regime (see 1 Fed Sent Rep. 356 (1989), 5 Fed Sent Rep. 211 (1993), 8 Fed Sent Rep. 110 (1999)).4. US v. Hagege, No. 04-50425 (2-22-06).

The court's admission of foreign bank records did not violate the Confrontation Clause. The records at issue here, in this fraud case, were business records that were not testimonial. The 9th also held that the statute of limitations was not violated in the time it took to get the foreign records. The gov't also didn't cause a mistrial because a gov't witness blurted out that the defendant was involved in the porno business. The case was remanded for resentencing for the district court to take a fresh look at relevant facts.


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