Friday, March 21, 2008

U.S. v. Lewis, No. 05-10692 (3-13-08). It is rare that there is a remand for a Speedy Trial Act violation. Rarer still for it to occur twice. Here, the 9th (Wardlaw joined by Hawkins) send a case back again for the district court to consider whether discrete continuances under the STA might cause the STA violation to be dismissed with prejudice. The defendant here was charged with conspiracy to import protected reptiles. He constantly asked to go to trial while the court granted continuance after continuance because of extradition problems with the codefendant, superseding indictments, and eventually loss of defense counsel. The 9th remanded the first time because of a STA violation; now, after yet another conviction, the case is remanded to assess all the pretrial delay. The 9th (nudge nudge, wink wink) states that: "In our view, these additional periods of delay may have exacerbated the prejudice to [defendant]...." O'Scannlain dissents, arguing that the district court weighed all the factors, and considered all the time, and did not abuse his discretion.

U.S. v. Gianelli, No. 07-10233 (3-20-08). The past can be a debt that remains unpaid, especially if there is a restitution order under the old Victim Witness Protection Act. The defendant plead guilty to mail fraud in 1987, and was ordered to pay $125,000 in restitution. Flash forward to now, and his arguments that the restitution can be barred by the state statute of limitations (1997). The 9th found that the act was not bound by a state statute of limitations, and so the federal government can collect at any and all times. (Note: one might be able to argue laches at some point, or abandonment).

Harrison v. Ollison, No. 06-55470 (3-20-08). A section 2255 petition was disguised as a 2241 claim, and so dismissed for lack of jurisdiction. The new evidence basis of claim was found wanting. As a 2255, it is a successor petition and barred.

U.S. v. Soto, No. 07-30011 (3-19-08). The defendant requested an instruction that the jury not draw an adverse inference from his refusal to testify. The court denied (!) his request because it was not made a week before trial, as the court required. The Supremes require a no adverse inference instruction if requested. Here, the 9th found that the refusal to give such an instruction is error, but it is not structural, and under a prejudice analysis, the refusal here was harmless. This is a per curiam (Canby, Graber and Gould), in which Graber and Gould both concurred. Graber would affirm the conviction on the procedural grounds that the court did not abuse its discretion in refusing the instruction because of timeliness under Fed. R. Crim. P. 30. The concern is for "orderliness" and the court appropriately weighed and balanced. (It still seems stingy given the credibility issues that were the defense.) Gould concurred finding that prior 9th precedent, Castenada, was wrongly decided, in that Castendada seemed to indicate that the model instruction for the presumption of evidence covered the "no adverse inference" instruction. The per curiam questions Castendada, while Gould outright state sit is wrong, and misconstrues the Supremes in Carter.

U.S. v. Davis, No. 06-10527 (3-19-08). The 9th remanded to strike a conviction on one count, and to determine, under Ameline, whether the sentence would have been different if the court had advisory rather than mandatory guidelines before it. The district court struck count four, stated that the sentence would not have been different, and then proceeded to increase substantially the sentence on a different count. "No way" says a per curiam 9th. The district court has to follow the remand, and it was limited. It struck one count, and stated "no" under Ameline. That was the end of it.


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