Tuesday, April 11, 2006

US v. Bhagat, No. 03-10029 (2-8-06). The gov't's position is "What's a theory of prosecution, he's guilty of something" Okay, that may be a bit broad, but not too far off the mark in this insider trading case. Defendant worked for a corporation that closed a big deal for the X-box with Microsoft. This had been in the rumor mill. The deal closed late Sunday night. On Monday, an e-mail went out office wide saying that the news was confidential, and don't buy stock, and cancel all open orders. There was a stock black-out for several days. Defendant came into work mid-morning on Monday. He purchased a large number of company shares. He said that he didn't read the company e-mails until early that afternoon, as was his practice (he had a habit of reading e-mail late). He purchased the shares at 12:23 pm and supposedly read his e-mail at 1:00 pm. When he did read the e-mail, he sought to cancel the trade, but was told it was too late. He couldn't remember the name of the trading company nor any details of the broker he talked to. He had traded in tech stocks before. He also didn't try to stop the trade subsequently. he sold the stock four days later for a substantial profit. The gov't reasoned that any reasonable person would read the e-mail when he or she first came in (Ed. note: well, at least the 9th Cir. opinions!). Defendant said he didn't on the stand, and the gov't then argued the "office was abuzz" theory. The sale was big news and so everyone was talking about it. The indictment though only alleged that he read the e-mails. On appeal, he argued variance. The indictment alleged that he found out from the e-mails. The 9th found it wasn't a variance from the facts because the argument was put forth during cross examination as impeachment, and the inference that he found out about it didn't vary from the general facts. The gov't only argued "abuzz" in passing, and mostly to imply that the defendant's interest would be piqued enough to have read the e-mail. Dissenting. Tashima argued that there was no direct evidence he had read the e-mails, and that the "abuzz" theory differed significantly from the concrete indictment that he had actually read the e-mail and so was put on notice. Defendant was convicted on other charges as well, including tipping and obstructing an agency's investigation (SEC). And what did the defendant gain? Oh yes, $48,000 profit.

US v. Williams, No. 04-50182 (1-30-06). The 9th dances with the 5th amend. and Seibert. The defendant here was interrogated about passport fraud. he was sin custody but didn't receive his Miranda warnings. After he confessed, he was given his warnings, and confessed again. The court denied the motion to suppress under Elstad, and then, while on appeal, Seibert (the two-step plurality decision from the Supremes) came down. As recounted in Steve Kalar's "case of the Week" memo, Seibert's fractured plurality resulted in no real bright line test. The four member plurality and the four dissenters all agreed that Kennedy's opinion focusing on the subjective intent of the officer and then moving to an objective test didn't and couldn't work. The dissenters wanted to stick with Elstad. The plurality looked at a totality of circumstances test to see if the goal of Miranda could be achieved in a two step approach (confession and then warnings). What to do here? The 9th talks about how to read plurality with a concurrence, and fastened on the most narrow ground. The problem is that Kennedy has his own subjective test that no one liked. The 9th then seemingly embraced a narrow reading of the plurality and Kennedy. The 9th wrote that "we hold that a trial court must suppress postwarning confessions obtained during a deliberate two step interrogation where the midstream Miranda warning -- in light of the objective facts and circumstance -- did not effectively apprise the suspect of his rights. Although this seems strange -- deliberate usually means intent -- the 9th actually defines deliberate as referring to objective evidence (1200). The 9th then emphasizes that once an officer detains a suspect and questions him, "there is rarely, if ever, a legitimate reason to delay giving a Miranda warning until after the suspect has confessed. Rather, the "most plausible reason for delay is an illegitimate one...." The 9th therefore fashions a test that is pretty good for the defense and comports with Miranda's goals: "In sum, when a law enforcement officer interrogates a suspect but does not give a Miranda warning until after obtaining a confession or an incriminating statement, a court must determine whether the warning was deliberately withheld. The court should consider any objective evidence or available expressions of subjective intent suggesting that the officer acted deliberately to undermine and obscure the warning's meaning and effect." (1202). The 9th suggests that totality of circumstances, including the same actors, the compressed time, and no break, all weigh toward deliberate action. The case is remanded for the district court to apply the test and Seibert.Congrats to AFPD Carl Gunn of Los Angeles for the win.

US v. Ye, 05-10073 (2-2-06). In an Economic Espionage Act case, the court ordered deposition of certain witnesses. The court's rationale was for discovery, and that it would be more convenient for trial and counsel.

The prosecutors objected, and appealed. the 9th found no appellate jurisdiction as it was not a final order, but did find mandamus, given the various balancing factors. The 9th granted the writ, and ordered relief, because the court's order erred in that Fed R Crim P 15 does not allow for depositions for discovery, and that neither fairness nor efficiency were the exceptional circumstances that would trigger Rule 15. The order also ran afoul of the Jencks Act.

US v. Blandin, No. 05-10316 (2-1-06). Defendant walked away from a halfway house because, after failing a drug case, he "wanted to enjoy himself" before being arrested. He was found in a couple days trespassing on property, and while the owner called the police, he waited for the arresting officers. At sentencing, he argued for a downward adjustment for "voluntary return" because he had formed the subjective intent to return within 24 hours before he was drugged by a prostitute. He also argued that he waited for the officers and didn't resist nor flee.
The 9th found this wasn't enough. It considered "voluntary return" to mean actually going back, and cited cases from other circuits where no such adjustment was given for waiting for arrest nor for even arranging a ride to return. Here, defendant only surrendered when he faced the prospect of arrest, and that wasn't good enough. Moreover, he was arrested for trespassing and the cooperation was as a result.4. US v. Russell, No. 04-10681 (1-30-06). Thew defendant, also known as "Wild Bill," shot himself in the foot more ways than one. First, he literally shot himself in the foot. He called 911, and used a different name (Hines). He then called back and gave his true name. He also said that his girlfriend would "kill him" (probably an overstatement). In the confusion, the police were possibly expecting two wounded men, and others in the house, and no knowledge . The police arrived, and met the defendant. Officers then swept the house and found the gun. Defendant was charged as being a felon in possession.

He argued for suppression of the weapon because the police conducted a warrantless search.

The gov't argued for an emergency exception. The court agreed. The 9th found it too. The 9th listed the factors for the emergency doctrine: (1) the police have reasonable grounds that there is an emergency at hand and a need for their immediate assistance; (2) the search is not motivated by an intent to arrest and seize evidence; there must be a connection between the emergency and the place. The 9th found these conditions were met. Dissenting, Thomas argued that the confusion had been cleared up when the police arrived because the defendant was outside, and the situation could be apprised. The emergency doctrine must be very narrowly drawn and only allowed when there is a true crisis. The fact that the police want to search cannot be used as justification. Here, once the emergency had been taken care of, the police must then follow police procedures.

Goldyn v. Hayes, No. 04-17338 (2-1-06). Defendant served 12 years for acts that the 9th found were not a crime. Defendant was issued a checking account, a line of credit and a check guarantee card by a bank in Nevada. The defendant, with a history of fraud convictions, soon exhausted her line of credit. She kept on writing checks. The bank kept on honoring the checks, because of the guarantee card. The 9th (Kozinski) looked at the guarantee, and the state statute for drawing checks on insufficient funds, and held that the defendant was writing checks beyond her credit line, BUT that the bank had guaranteed them, and any problem was between the bank and defendant. She had been convicted and got five life sentences, and after serving 12 years, was placed on lifetime probation. The 9th ordered her immediate release, and chided the state courts for missing this obvious connection, and dropped a footnote that stated it wasn't dealing with other issues, but those cast doubt on the state's commitment to justice (note 6).

Congrats to AFPD Paul Turner of Las Vegas, D. Nev.7. US v. Napier, No. 04-10249 (2-7-06).

Defendant sought to challenge a sealed attachment to a search warrant for purposes of a Franks hearing. The gov't opposed, arguing that the informant's identity could not be revealed because of safety concerns and ongoing investigations. Defendant entered a conditional plea, and appealed the denial of his request. he argued that he hadn't sold drugs in the two months stated in the redacted affidavit provided. The 9th held that the right to a Franks hearing (challenging untrue assertions forming the basis of probable cause) is not absolute, but must be balanced by competing rights, one such being safety and ongoing investigations. The balance must look at the concerns, dangers, and rights. here, the balance was against the defendant as this wasn't a trial, but a suppression motion, with a more relaxed standard, and that the facts alleged in Franks didn't call into question the validity of the warrant.8.. Meanwhile, back at the ranch, in US v. Guerraro-Velasquez, which had that footnote by Bybee stating that a guideline sentence was presumptively reasonable, it vanished on rehearing. A small consolation for AFPD Ben Hernandez, E.D. Wa., that is important for the greater good.

Plaintiff-Appellant,A DOLFO G UERRERO -V ELASQUEZ ,

Appeal from the United States District Courtfor the Eastern District of Washington
Wm. Fremming Nielsen, Senior Judge, Presiding
Submitted November 18, 2005
Seattle, WashingtonFiled January 19, 2006
Amended February 7, 2006
Before: David R. Hansen,
William A. Fletcher, andJay S. Bybee, Circuit Judges.Opinion by Judge Bybee
This panel unanimously finds this case suitable for decision without oral argument.
See Fed. R. App. P. 34(a)(2).**

The Honorable David R. Hansen, Senior United States Circuit Judge for the Eighth Circuit, sitting by designation.1367COUNSELK. Jill Bolton and James A. McDevitt, United States Attorney’s Office, Yakima, Washington, for the plaintiff-appellant. Alex B. Hernandez, III, Federal Defenders of Eastern Washington and Idaho, Yakima, Washington, for the defendantappellee.

The opinion, filed January 19, 2006, slip opinion 773, and appearing at ___ F.3d ___ (9th Cir. 2006), is amended as follows:1. At slip op. 777, footnote 1, line 8; ___ F.3d at ___, footnote 1, line ___, delete, “We also note that, on appellate review, a sentence suggested by the guidelines is presumptively reasonable.”2. At slip op. 776, line 2; ___ F.3d at ___, line ___, change the counsel listing for plaintiff-appellant to read, “K. Jill Bolton and James A. McDevitt, United States Attorney’sOffice, Yakima, Washington, for the plaintiff-appellant.”With the filing of the amended opinion, Appellant’s pendingMotion to Modify Decision is DENIED as moot, withoutprejudice to filing a petition for rehearing and/or rehearing enbanc. See 9th Cir. G.O. 5.3(a).


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