Thursday, December 28, 2006

US v. Benz, No. 06-10167 (12-28-06). This is an Assimilative Crimes Act appeal. The defendant was convicted of drunk driving on a military base. He faced 10 days mandatory incarceration under the state law that is "assimilated" into the federal code. He plead without an agreement. On appeal, he argues that the federal court could sentence him to work release instead of ten days in "the big house." "Not so," said the 9th, because the work-release program is administered by the sheriff's office and is part of the incarceration. However, the defendant does get relief because the federal magistrate, in taking the plea, failed to follow Rule 11 in informing the defendant he faced a mandatory minimum ten days. The prosecutor putting it on the record was not the same as the court addressing the defendant and getting his acknowledgement. The case is remanded.

US v. Anderson, No. 05-30211 (12-28-06). Defendant appeals his numerous fraud and conspiracy convictions. The interesting aspects relate to his extradition from Costa Rica. He argues that his appeal of the denial of his Costa Rican citizenship application was still pending, and until that was resolved, there is no jurisdiction. The 9th rejected this argument, finding that the process worked and that the treaty did not have an exception for a pending citizenship plead. Counts of money laundering and conspiracy to launder are remanded, however, for the district court to determine whether such statutes are covered in the Costan Rican code so as to fulfill the "dual criminality" requirement in extradition (the extradition is for a criminal offense defined in both countries). The 9th discusses whether the defendant waived the issue because it was only raised in his reply brief and not at trial or in his opening brief. The 9th holds that he did waive the issue, but that interests of justice permit consideration. Such interests are here because the extradition agreement was only translated from Spanish at the time of the appeal, and some pages may have been missing. The district court still has to decide the issue.

US v. Gomez, No. 06-30288 (12-28-06) . The 9th holds that disqualification from the "safety valve" is not cruel and unusual punishment under the 8th amendment.


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