Tuesday, July 18, 2006

US v. Carty, No. 05-10200 (7-17-06). In this appeal from a sex abuse case occuring in Indian Country, the 9th considers an insufficiency argument, and basically defers to whatever the jury finds. The testimony of the victim was both contradictory and incredible, but the 9th said that is what the jury is for. The sense is that the 9th will not disturb a jury verdict in a sufficiency appeal.

On the sentencing issue, the 9th does reaffirm the new world of Booker sentencing, stressing that the court cannot just adopt a guidelines sentence, because that would give effect to just one of the 3553 factors. Although the 9th does not lay out an exact mantra that must be repeated, it comes pretty close. The 9th stresses that the district court has to indicate it considered the 3553 factors, and actually discuss them and the purposes. This is another blow against the "business as usual" approach.

Congrats to Milagros Cisneros, AFPD D. Az, for the sentencing silver lining in this decision.

US v. Lyons, No. 04-50082 (7-17-06). The 9th allows use of administrative costs in a telemarketing fraud trial to show evidence of criminal intent. The 9th also finds harmless failure to instruct on co-defendant/co-schemer liability.

Weather v. Palmateer, No. 04-36009 (7-17-06). The 9th reverses a district court finding of IAC. The 9th looks to the state's finding, and gives it credence. This was a highly publicized serial rapist plea, for which the defendnat fired his attorney and got another counsel. The state courts found that the decision to plead guilty was not a result of IAC, and that there were benefits. The 9th agreed. Moreover, the prejudice prong could not be met.


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