Tuesday, June 05, 2007

US v. Kaiser, No. 06-50178 (5-31-07). The 9th has dealt with death and now turns to taxes; at least criminal charges on failing to report income in violation of 26 USC 7201. The defendant worked as an independent contractor for an internet corporation. He earned income, but supposedly fail to report it. When charged, he argued that he did not fail to report; and, oh by the way, the reported income could be recharacterized as reimbursement for business deductions. The court refused to give the instruction on that theory. This was error, holds the 9th (Ikuta joined by Reinhardt), because the defendant could show that reported income was not really earned or was offset, and so no reportable income was to be had. The defendant had presented sufficient evidence to get the instruction. Dissenting, Kozinski argues that a defendant should not be allowed to recharacterize after the fact reported income, and there was insufficient evidence.

US v. Grisel, No. 05-30585 (6-5-07). In an en banc opinion, the 9th (Graeber) holds that Oregon's second-degree burglary statute is not a generic categorical burglary for ACCA purpose under Taylor because it extends burglary to booths, airplanes, and other items outside of a building or structure. The 9th overrules Cunningham, 911 F.2d 361 (9th Cir. 1990) (per curiam) which had held it to be generic. The 9th, in so reaching this holding, finds unpersuasive defendant's argument that the court should adopt constitutional avoidance in considering prior convictions, and that a date of an offense falls outside the prior conviction exception to Almedarez-Torres. Turning to the state statute in question, the 9th had no trouble in finding that the statute's definitions stretch too far the common law definition of burglary by including boats, planes, booths, and other items. This renders the statute non-categorical. The majority responds to dissent arguments that Congress wanted an expansive definition by pointing out that Congress could have fixed it, but chose not to, and to abide by the Taylor approach. In dissent, Bea (joined by Kleinfeld and Tallman) argues that legislative intent would be better served with an expansive definition.


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