Monday, April 02, 2007

US v,. Ihnatenko, No. 05-50150 (3-30-07). The 9th (Tallman joined by Tashima and Fisher) joins all the other circuits in holding that the government does not violate 18 USC 201(c)(2) in providing compensation for witnesses in exchange for cooperation. This was a maritime seizure of a lot of cocaine, and some witnesses who cooperated received immigration considerations and stipends that totaled $200,000 (roughly the equivalent of 30 pieces of silver?). This, of course, was not paying for testimony, and the 9th stressed that cooperators have long been afforded assistance. The 9th does state that such information must be given to defense counsel AND that counsel must be allowed to vigorously cross examine on this issue.

US v. Cabaccang, No. 05-10352 (3-3-07). The 9th (Tashima joined by Hug and W. Fletcher) enter into a quagmire of what happens when a greater offense is reversed, and a lesser offense was previously vacated because of the conviction of a greater. (Think of it as an Escher print of confusion). The 9th decides that if a greater is vacated (here the CCE), the lesser conviction for drug conspiracy can be reinstated if it is not affected. This is in line with other circuits.

US v. Moran, No. 05-30215 (4-2-07). The 9th Cir (per curiam) looks at a tax fraud/mail fraud case and reverses because the court erroneously excluded defendant's testimony that she relied upon experts as hearsay. The 9th found no error in the government's admission of expert testimony as to how the scheme was set up, and the computer records. The discussion as to the expert revolved around whether his conclusion that the scheme was a "sham" was vouching or dealt with the intent issue. The 9th held that the expert did not vouch as to the other witnesses credibility, and the "sham." The computer records also were properly admitted in as furtherance of the conspiracy.

The reversal arose because the court excluded testimony from the defendant about what she had learned from outside experts. This was an abuse of discretion and because there was no 403 balancing, it was also reviewed de novo. The testimony would not have been hearsay because it did not go to the truth of the matter, but her state of mind. The intent aspect of the offense was "wilfulness" and the defense was "good faith." It should have been admitted and was not harmless.

US v. Heredia, No. 03-10585 (4-2-07)(en banc). The 9th en banc (Kozinski) revisits the Jewell/deliberate ignorance instruction. The 9th declines to overrule Jewell. It does stress that a deliberate ignorance instruction must at a minimum contain two prongs of suspicion and deliberate ignorance. Kleinfeld concurs but would add that "motivation to avoid criminal responsibility" should be an element of a willful blindness instruction. Graber dissents, joined by Pregerson, Thomas, Paez, arguing that the Jewell instruction as a matter of statutory construction is not proper because it misleads and misconstrues the mens rea in 21 USC 841. The dissenters argue that Jewell is both wrong (reducing mens rea) and unnecessary.


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