Monday, April 14, 2008

U.S. v. Horvath, No. 06-30447 (4-9-08) (order). This is an order denying rehearing en banc. The panel decision reversed a conviction for a material misstatement under 1001 to a probation officer in the PSR. The panel had held it was not material because the probation officer was required under Fed. R. Crim. P. 32 to state the defendant's version or statements. The dissents argue that the probation officer is not just a conduit but assesses statements and that it plays into sentencing. It also points out that the 9th is now in conflict with the 4th on this issue. This issue will percolate and the Supremes may step in.

Richter v. Hickman, No. 06-15614 (4-9-08). The 9th affirms a denial of a petition in a LWOP murder case. This was a murder either over the theft of guns and belongings or self-defense. The jury convicted. In this challenge, petitioners raise an IAC claim among others, arguing that trial counsel should have investigated further and used different firearm and forensic experts. These experts would have supported the self defense theory through testimony about the gun-in-question's operation, and the bullets. The 9th held that the claim failed on prejudice, as the testimony, even if presented, would not have changed the thrust or strength of the defense. The 9th also found no Brady violations.

U.S. v. Vasquez-Ramos, No. 06-50553 (4-10-08). The 9th affirms the convictions of defendant in an eagle feather case. Bald and gold eagles are protetced birds. The defendant alleges that he, as an American Indian, needs the bald and golden eagle feathers for religious purposes. The 9th goes through the Religious Freedom Restoration Act, detailing how feathers and talons can be requested from the Department of the Interior. There is a wait, but they are available. The 9th has held in Antoine that the RFRA was not an unconstitutional restriction, and survives scrutiny. The defendant argues that the Supremes have altered the legal landscape with recent decisions on importation on some feathers, but the 9th did not so find. The 9th also did not buy that the removal of bald eagles from the endangered list rendered the protection of the Lacey Act moot. The 9th again said "no" because the eagles are a symbol of the country, and they are still protected.


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