Thursday, March 29, 2007

US v. Howard, No. 03-50524 (3-27-07). Chains. Marlowe was weighted down with them in A Christmas Carol, but that was after his conviction and sentence. Chains have been rattled, broken, and sung about. The chains here concern pretrial detainees at their initial appearance. On an interlocutory appeal, the 9th (Schroeder) first decides they have jurisdiction because the issue comes up at a point that would later evade review, and it isn't moot. On the merits, the 9th holds that there was adequate justification to allow such shackling, even for first time appearances, because of safety and security. This time the government provided evidence which it didn't in its last go-around (and which is why the previous order has been withdrawn).

US v. Almazan-Becerra, No. 05-10056 (3-29-07). The 9th remands for resentencing in a 1326 case because of various adjustment issues relating to aggravated felonies. The court and government erred in giving aggravated felony adjustments for state (California) prior convictions that could, under the categorical appraoch, be for possession of drugs and not selling.

US v. Jackson, No. 05-30058 (3-29-07). This is "travels in foreign commerce" and engages in Illicit sex case under 18 USC 2423(c). The defendnat left the US in 2001, stayed in Thailand for a couple of months, and then moved permenantly to Cambodia. He never reeturned to the US, and was going to apply for Cambodian citizenship. He had his US Passport in late June 2003 when he engaged in sex with underage children. Cambodia arrested him, expelled him, and the US took jurisidiction and flew him home and charged him. The district court dismissed based on a statutory interpretation that defendant's travel and acts were one element, and that the travel, being complete in 2001, rendered the statute inapplicable. The 9th took a different tact -- although with the same result. The 9th recognized that the travel in foreign commerce and act was two separate elements. The 9th looked to US v. Clark, 435 1100 (9th Cir. 2006) for the history and review of the 2423(c) statute against constitutional challenges. This case differs because the travel occurred before the statute was enacted. The government argues that the travel could occur, and then the act, and the act would bring it within the ambit of the statute. 9th sidesteps the ex post facto question by using statutory interpretation to hold that Congress only proscribed the the conduct of an individual who "travels in foreign commerce" after the enactment. The defendant here, after a long discussion as to the definition of what is traveling and that present tense use of "travels" , was found not to have been travelling. The statute does not apply to him then.

Congratulations to AFPD Brian Tsuchida of W. D. Wa. (Seattle).


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