Wednesday, February 07, 2007

US v. Valle-Montalbo, No. 05-50876 (2-2-07). A state conviction for "possession off meth for sale" under Calif. Health & Safety Code 11378 is a "drug trafficking offense" under a categorical offense analysis for purposes of 2L1.2(b)(1)(A).

US v. Ingham, No. 05-50698 (2-6-07). This is a conspiracy sentence appeal with the focus on the enhancement of 4 levels for being an organizer or leader. Defendant argues that the test for such an enhancement is whether the defendant was both an organizer and leader. The 9th (Gould joined by Pregerson and Clifton) holds that the test is actually in the disjunctive under Avila, 95 F.3d at 890. The evidence here supported the organizing prong, and the court made the appropriate findings. The 9th also rejected the challenge to hearsay in sentencing.

US v. Lopez, No. 05-50616 (2-5-07). The 9th affirms a conviction (Gould joined by Pregerson and Clifton) for possess of meth for distribution,finding that the federal law enforcement agents nor the AUSA acted with vindictiveness in bringing charges when the defendant failed to cooperate. The state charges were not tied to the federal charges, the state attorney forgot about the agreement to drop the state charges when the indictment came down, but this was not enough to conclude a plan to punish for asserting rights, and the statements that he was looking at serious time could not be construed at vindictiveness.

US v. Milwitt, No. 05-10344 (2-5-07). The 9th (Thomas joined by Hawkins) reverse a conviction for bankruptcy fraud for sufficiency of evidence. The defendant held himself out as a landlord-tenant lawyer and took monies from tenants to settle disputes with their landlords. Defendant was not a lawyer, and did not really help. He got a state sentence for illegal practice of law. As he walked out of the state prison, he faced a bankruptcy fraud charge. It seems he filed bankruptcy petitions on behalf o the tenants without their knowledge. The bankruptcy provision he was charged with focused on "creditor" rights under 18 USC 157. There had to be specific intent that creditors (landlords) would be prejudiced or defrauded. The government's case though focused on the poor tenants and how they got hoodwinked. The jury instructions drew the attention back to the landlords, based on the indictment, but most of the evidence went toward the tenants. Indeed, the landlords seemed to be slumlords, with a despicable record that may well have justified withholding of rent. The 9th held that the government failed to present evidence that this was a scheme to defraud the landlords; rather, the scheme was to hide the fraud from the tenants. In dissent, Wallace argued that the highly deferential sufficiency standard was met with the evidence of who would be left without the rent.


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