Thursday, October 19, 2006

US v. Nguyen, No. 06-30011 (10-18-06). Is a "nolo" conviction sufficient evidence of a wilful failure to comply with supervision release terms that state that the defendant not "commit any crimes."? The 9th (Clifton) says "no." Here, defendant is a Vietnamese who was ordered deported because of a misdemeanor drug possession conviction. Vietnam has no repatriation treaty, and so the defendant was released under supervision terms. he subsequently plead nolo contendre to two state misdemeanor charges, assault and mischief. The gov't charged him with wilful noncompliance, and he got a year in jail for the conviction. The 9th reverses, holding that evidence of a "nolo" conviction was legally insufficient to support a conviction for violating 8 USC 1253(b). "Nolo" is not the same as a conviction for proof of "commit other crimes." A nolo plea is not an admission. The nolo plea also does not come in under FRE 410, 803(22), or 803(8) for the purpose of proving commission of the offense. The gov't is further barred from retrying defendant. It had its one bite.
Congrats to AFPD Kevin McCoy, D. Alaska, for the win.

Velzquez-Herrera v. Gonzales, No. 04-72417 (10-19-06). The 9th (per curiam) remands to the BIA so they can figure out, and issue a precedential opinion, as to what is the definition of "child abuse" under the state (Washington) statute. The state statute covers conduct that is detrimental to the physical, mental, and moral well being of the child, and could conceivably deal with matters as trivial as spitting or slight touching. The 9th ordered the BIA to define the act, and then use a Taylor/Shepherd approach to see if defendant's acts fit.


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