Tuesday, June 12, 2007

Ninth Circuit (and The Sopranos) Opinions

US v. Savage, No. 06-30451 (8-12-07). The 9th applies a modified categorical approach to a state escape in determining whether an enhancement for a prior "violent crime" is appropriate. The defendant had a gun, and two priors that the sentencing court found to be violent. One was an assault; the other was an escape. The 9th remanded this previously in light of Piccolo, which held that escape is not a categorical crime of violence. Here, on appeal, the finding of a crime of violence was affirmed because at the plea colloquy for the escape, the defendant had admitted that he had escaped from a "jail." This secure facility distinguished it from a halfway house.

Murdoch v. Castro, No. 05-55665 (6-12-07). The 9th considers whether attorney-client privilege must yield to confrontation rights. Here, the petition argues that a letter sent by a testifying cooperating co-defendant to his lawyer, stating, in effect, that he was not present at the murder and was innocent contradicted his testimony. The 9th had remanded previously for a hearing on whether the exclusion of the letter was prejudicial. The district court found it was not and the 9th affirmed (Tashima & Bea). The 9th reasoned that the witness had been thoroughly impeached as to motive, prior testimony, and inconsistencies, and this letter had a low impact. The issue of balancing, though, is critical and could be weighed differently as Supreme Court precedents indicate that the Sixth Amendment can trump privilege. Dissenting, Bright (visiting from the 8th) argues that the letter would have made a difference because it was tangible, visible evidence of a lie, and corroborated the other impeachment.

US v. Freeman, No. 05-50401 (6-11-07). The 9th (Gibson visiting from the 8th with Fisher and Callahan) consider the extent of a drug agent's "expert" testimony on encoded drug lingo and language. The 9th held that admission of testimony as to what words like "iggidy," "ticket," and "all gravy" might mean as well as "fezone" and "teznower." These were unusual words which the agent's expertise in drug investigations and knowledge helped the jury decode. However, testimony as to more commonplace or ambiguous phrases, such as "long route" meaning a certain drug transaction or that "that" and "they" refer to money or drugs was not expert testimony but lay testimony since it was only one framework of understanding and had to be explained based on his general knowledge rather than his specialized training or experience. There are dangers when an agent testifies as both an expert and a lay witness. The roles can become confused and overlap. Although it is not categorically barred, care must be given. Here, there was improper testimony because of speculation as to why the defendant may have acted in a certain way, and there was "interpretation" given to clear meanings of other words. Although this was error, it was harmless error under the circumstances and in the context. On another issue, the court's giving of a neutral Allen charge after the jury announced deadlock was not error. The jury deliberated a number of hours prior, and continued to deliberate for several hours after the giving of a charge.

US v. Strong, No. 06-10566 (6-11-07). The 9th (Clifton joined by B. Fletcher and Ikuta) held that the mandatory confinement for treatment and restoration of competency under 18 U.S.C. ยง 4241(d) was not unconstitutional. The commitment of a defendant for competency restoration does not require a hearing for possible conditions of release pending such an examination. There is no right to consideration of individualized circumstances before commitment. The commitment statutory scheme has a definite period (4 months) and a procedure for testing the finding and results of competency. It is not indefinite. The 9th joins three other circuits in so ruling.

In re Tony Soprano (Editorial Note): So, after much thought, anticipation, obsession, and reading of blogs, my sense is that Tony Soprano was killed, and that the black-out at the end was his getting "whacked." This had been foreshadowed by comments about being killed being like a "black-out" and the sense of menace in the final 3 minutes. (For general discussion and overview, see generally Timothy Noah's "Darkness Visible," TV Club, Slate Magazine, www.slate.com). Meadow Soprano, upon completing law school, should consider joining the FPDs. Who needs the starting salary of $173,000 in a private firm when constitutional issues are at stake. AsMeadow explained to her father, in justifying switching from medicine to law, she has seen "the state crush an individual." Yes, even in New Joisey. The ongoing and not so secret grand jury investigation into the Sopranos will now be moot.


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