Wednesday, May 21, 2008

U.S. v. Dallman, No. 05-30349 (5-19-08). This is a relevant conduct case. The defendant came across the Canadian-US border with a duffel bags of marijuana tied together, and with two other co-defendants also with duffel bags. The border patrol spotted the defendant, and he got tangled up in the bags and was arrested, as were his two companions. For relevant conduct purposes, all the marijuana brought by all defendants were lumped together (three bags full). The court considered it a joint undertaking. The defendant appealed, and the 9th (Gould joined by Canby and Bea) agreed. The determination by the court that all three were acting in concert was not erroneous. The district court, however, committed error in giving the guidelines a presumption of reasonableness. The 9th, under plain error review, held that the defendant's substantive rights were not affected because of the court's reasoning of why it gave the sentence it did, and the fact that the court declined to give an aberrant behavior departure, and did give a minor role adjustment.

U.S. v. Vasquez-Landaver, No. 07-50226 (5-21-08). This is the latest pronouncement by the 9th on duress defenses. It arises in the context of a 1326 prosecution. The defendant gave pretrial notice that he was going to mount a duress defense, and would testify that he left El Salvador because the police had it in for him. He was the subject of extortion by a particular officer, who was then arrested and convicted for the threats. The officer was killed in prison and his comrades vowed to get defendant. The defendant then came to the United States via a smuggler because he feared for his life in any country but America. The court pretrial granted the government's motion to preclude an expert on El Salvador, and refused to give an instruction. In a subsequent pretrial ruling, the court precluded the defendant from even testifying about duress as irrelevant. He was convicted and sentenced to 90 months (the plea would have been to 48). On appeal, the 9th (Ikuta joined by Wardlaw and Gould) affirmed the conviction and sentence. The 9th stressed that duress requires a threat, a well-grounded belief it would be carried out, and a lack of reasonable opportunity to escape. Here, the defendant had opportunities to seek escape aside from coming to the U.S. (where he had a lengthy record), and the threats were not well grounded. The 9th held that a prima facie case was not made. U.S. v. Moreno, 102 F.3d 994 (9th Cir. 1996). As for the sentence, the 9th held it to be reasonable. The court was aware of the 3553 factors, and did not need to go through each one, and the 9th found no vindicativeness from the court because the defendnat went to trial (the defendant even got acceptance).


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