Tuesday, April 25, 2006

US v. Huerta-Pimental, No. )4-50037 (4-24-06). The 9th rejects a constitutional challenge to Supervised Release as violating the sixth amendment. The 9th concludes that SR is constitutional under Apprendi, Blakely, and Booker. "Because supervised release is imposed as part of the sentence authorized by the fact of conviction and requires no fact-finding, it does not violate the Sixth Amendment principles recognized by Apprendi and Blakely. For the same reasons, a district court's decision to revoke supervised release and impose associated penalties is also constitutional. Additionally, because the revocation of supervised release and imposition of an additional term of imprisonment is discretionary, neither violates Booker." The defendnat here received a sentence for a 1326 that included SR. he returned. Tthe challenge was to SR. The constitutional challenges, as related above, failed because the 9th found the SR term to be part of the sentence, and its revocation and sentence to be discretionary. The statutory challenge that it wasn't an element of 1326 also was dismissed because a sentencing statute categorized convictions.

US v. Romero-Martinez, No. 05-10153 (4-25-06). The 9th holds again that an "altered or obliterated" serial number on a firearm that triggers an enhancement under the guidelines refers to a firearm where the serial number is materially changed so as to make the information less traceable. The serial number on the firearm here, which was removed, fit that definition. The defendant had the benefit of a jury trial on the issue of serial numbers (post_Blakely and pre-Booker) but the jury instructions used were without error. The 9th also found no merit in the argument that serial numbers put on by the manufacturer and not required by the gov't somehow evaded the enhancement. The goal of the statute and guideline is to make firearms traceable.

US v. Miranda-Guerena, No. 05-10198 (4-25-06). The defendant was a passenger in a car driving around Tucson. An undercover officer suspected drug trafficking, and had been investigating the driver and defendant. The officer reasoned that a traffic stop would be better than an investigatory stop, because that would tip off the occupants. Because the officer was sin an unmarked car, he radioed for a marked police car to stop the car should he (the caller) observe traffic violations. The officer spotted two, and asked the other officer to stop the car. Crack was found. Defendant argues on appeal that the traffic stop was without reasonable suspicion and violated due process because the officer stopping the car had not observe the violations. The 9th affirmed the conviction, holding that the officer himself didn't have to observe the violations; he just needed to have a reasonable basis to believe it occurred. He was told here by another officer. The 9th looked to state law, where an Arizona statute was interpreted in a subsequent opinion to allow such stops by officers that didn't witness the violation. The 9th also held that the fourth amendment permitted such stops so long as it was reasonable. In a concurrence, McKeown chides the majority for even looking at state law, because the stop met the 9th's fourth amendment analysis without reference to state law.

US v. Bahamonde, No. 04-50618 (4-25-06). This is noteworthy discover/notice case involving calling federal officers to testify. This was a prosecution of importation of marijuana across the border. The defense was that an acquaintance who sold the car had hidden the marijuana in it. This acquaintance was known to be a drug trafficker and was being investigated. The defendant sought to call the case agent, an officer from the Office of Homeland Security, to testify about the investigation. The officer had sat at counsel table throughout the trial. The prosecution objected because counsel had not complied with 6 CFR 5.45(a), which required written notice by defense counsel the nature and relevance of the official information sought. When counsel was asked by the court why he hadn't complied, he said that he thought it was a mere courtesy, and that he would be glad to do it right then. The court ruled the offer was untimely and precluded the witness. The 9th reversed. The 9th (Canby) reasoned that the regulation was a "discovery" regulation that was one-sided (requiring the defense to disclose but no requirement of the gov't on rebuttal of that information). This one-sided nature violated due process under Wardius v. Oregon, 412 US 470 (1973), which required notice of alibi by the defendant to also have the state disclose rebuttal. The reg here was similarly unfair. In addition, the defendant does not have to disclose in order to challenge. Such disclosure would defeat the purposes -- showing the defendant's hand without anything similar from the gov't. Finally, the court's remedy of preclusion was too severe given the constitutional issues at stake in mounting a defense and because there was no prejudice. Rawlison, in dissent, would find nothing wrong because this isn't a discovery case. DOJ and Homeland Security have legitimate reasons for having regulations, and because counsel didn't follow them, too bad.

IMPORTANT WARNING: This case should be a warning about the special rules that have to be followed when it comes to calling gov't witnesses. There are requirements for DOJ, and other agencies, and we don't comply with them at our peril. Thankfully this one came out all right.

Congrats to AFPD Kurt Hermansen of Federal Defenders of San Diego for the win.

US v. Lopez-Torres, No. 05-10392 (4-25-06). No surprise here: shooting at an occupied vehicle in violation of Calif. penal Code 246 is categorically a crime of violence, and under 2L1.2 (1326), it gets a 16 level enhancement.


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