Thursday, August 31, 2006

US v. Montgomery, No. 05-10587 (8-29-06). In an Ameline remand, the 9th (Pregerson) requires that the district court ask counsel about resentencing. The 9th had language that stated "should" consult, but when read in context, the "should" is mandatory. The district court doesn't necessarily have to hold a hearing, but at a minimum should ask for counsel's views in writing. The case here concerned a large fraud involving the Bank of Saipan, and on an Ameline remand, the district court statted, with no input from counsel, that that a resentencing wasn't necessary because the original sentence (240 mos) was appropriate. The 9th is telling the resentencing judges, even if they think they've heard it all before, they still must give us a chance to state our views.

US v. Johnson, No. 05-10708 (8-29-06). The 9th shoots down the possibility of a "transitory" possession affirmative defense in felon in possession cases. The police came by on a domestic call, and found a weapon on defendnat's bed, along with his wallet, and the girlfriend said "it's his." The defense was that he found the weapon on the way hom, near a school, and he was going to hand it over to the police. The DC Circuit allows such a defense, but the 9th (O'Scannlain) roundly rebukes the defense, finding no basis for it in the statute's mens rea, nor on policy grounds, and also supports the ruling but stating that disallowing the defense will protect (!) the defendnat from perjury. The 9th joins the 1st, 2nd, 4th, 7th and 11th in saying "no" to transitory or innocent possession (just holding it for an innocent purpose). The 9th does have language that the standard for a theory of defense instruction is above a scintilla, but not much, and that weak evidence can still trigger an instruction. That is what jury's are for. (The irony of couse is that the author of the opinion -- O'Scannlain -- recently wrote in Larson that cross examination of a cooperator's deal as to sentencing guideline benefits and machinations can be limited to prevent of jury confusion. Shouldn't a jury be allowed to weigh and balance benefits and bias?)

US v. Ruiz, No. 04-10308 (8-30-06). The gov't argued that the presence of guns in a house with a meth lab meant that two co-defendants and co-conspirators possessed them. The 9th said "no," reversing the convictions (and 30 year sentences) on sufficiency of evidence. The guns were scattered in the house, but no fingerprints linked them to the defendants; no statements were made indicating possession; no co-conspirator testimony tied them. Simply because guns were scattered with drugs, without some evidence. is insufficient. The defendants were caught outside the house and others escaped. The 9th refused strict liability. On another issue, the 9th held that a preliminary reasonable doubt instruction in which the judge riffed about DNA and all doubt was not error as it got the essence across and the standard instruction was given at the end.


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