Thursday, May 31, 2007

US v. Doe, No. 05-50474 (5-29-07). Overseas travel can broaden one's horizon. It can also be expensive. And if one engages in criminal conduct, such as travel for sexual exploitation of a minor, one can be ordered to pay restitution. Here, the 9th (O'Scannlain joined by Hall and Callahan) hold that a defendant must pay restitution to an overseas child victim of sexual exploitation as a result of his conviction for travelling overseas to sexually abuse minors. The defendant is only identified as "Doe" because the case was sealed below. This unusual twist may be because of prison security, or perhaps concerns for the family and victims abroad. The defendant travelled to his native land and brought back pornographic photos of minor children, some of which showed him performing sexual acts. The photos were discovered as he cleared customs. He received 204 mos. He was ordered to pay restitution for counseling, education, and medical treatment for 8 out of 18. His objections went to his not being able to discern which victims were involved, the extent of the counseling required, or whether there was a casual connection between the abuse and the educational retraining. The 9th found it was not an abuse of discretion for the court to so order, focusing on the wide scope of restitution and the slight need for causation. The 9th moreover stressed that the restitution could be considered low because it was the developing world, and the costs were less (yes, that was there).

The case had a limited remand because the defendant requested to see any special SR conditions contemplated, but the court denied the request, stating that the objections could be interposed later. The 9th strongly disfavors this, and stressed that the defendant should be able to consider any SR conditions contemplated beforehand. (This provides another reason why Probation should disclose the sentence recommendation ahead of time.)

Kharana v. Gonzales, No. 04-71335 (5-29-07). The 9th (D.W. Nelson) holds that one cannot get a fraud conviction declassified as an aggravated felony as being over $10,000 by paying off the restitution ahead of sentencing. The petitioner tried to use that gambit, looking to the guidelines for support. The 9th was dismissive, reasoning that the guidelines departure applied to making restitution before charges are brought, not after. Moreover, the plea here was for greater than $10,000. Wallace concurred, stating though that a modified categorical approach should be used.

US v. Trimble, No. 06-30298 (5-30-07). Form over substance? Not in this case. The 9th (Berzon) reverses fines of $100 for traffic violations because of they were arbitrarily applied. The defendant got several tickets on a military base. She was ticketed with petty offenses and had to appear in court. When she did, she was fined more than others with similar offenses. Why? Because some officers used old ticket forms and others used new forms. Why? Well, the AO (yes, the AO) did not print enough new forms that added a "+$25" to the fine as a result of new legislation. The 9th brushed aside the magistrate's and district court's explanations about the need for privacy (mysterious, the 9th termed the rationale) and the need for revenue (true, but the fine should not rest on whether old or new forms used). Trying to save the convictions, the government also tried to argue that the defendant was put "on notice" but notice cannot come afterwards. The 9th holds that such arbitrary acts violate the equal protection clause of the 5th amendment. O'Scannlain concurred, grousing that the tickets were imposed arbitrarily, but that the opinion goes too far.

Congratulations to AFPD Jerry Kuh of the W.D. Wash. The Constitution applies to great and small matters.

US v. Lenihan, No. 06-30488 (5-30-07). Speaking of small matters, the misdemeanor probably seemed minor enough for the defendant when he waived representation and represented himself in a domestic violence case. He plead guilty. Here, he was found later with a gun, and was a prohibited possessor. The 9th held that the waiver of counsel was constitutional. The state misdemeanor court did not have to warn the defendant over the dangers and disadvantages of self representation under the circumstances since the Supremes have a sliding scale for such waivers under Iowa v. Tovar, 541 US 77 (2004). This overturns the 9th's Atkins case that had a higher standard for waiver. Under Tovar, the defendant bears the burden of proving that the waiver was unknowing and here he was informed that he had the right to counsel and that the conviction may have implications.

Pulido v. Chrones, No. 05-15916 (5-30-07). In a per curiam decision, the 9th affirms the granting of a petition because of an erroneous state jury instruction. Petitioner argued that he did not commit a felony murder during a store robbery because he became involved afterwards. He supposedly was in a car when the robber, and murderer, came out of the store with the register and ordered him to open the register. The state instruction was botched, stating that an aider and abettor can be guilty of a felony murder, but the defense was that he was not an aider and abettor. Moreover, the instruction for special circumstances had a typo, substituting "or" for "and." This instruction here was structural error under Lara. O'Scannlain concurred, stating that the standard should be reviewed by the Supremes, implying that Lara should be overturned, and that "harmless" review was appropriate. Thomas also concurs, taking issue with O'Scannlain, and holding too that even under a harmless error review, the petition should still be granted.


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