Friday, June 06, 2008

U.S. v. Rivera, No. 06-30474 (6-2-08). Necessity is the mother of all wiretaps, or so the statute would require. Here, defendant argues that the wiretap was unnecessary because there were other means, and that the wiretap failed to minimize. The 9th (B. Fletcher joined by Kleinfeld and Gould) disagreed and affirmed the conviction and sentence. The 9th goes through the requirements for a wiretap, and the need to try other means first. The cases are parsed as to why some wiretaps are upheld and other disapproved because of other available means. Here, the 45-page affidavit sets out sufficient reasons why confidential informants would not work, and why other efforts would be stymied.

Delgadillo v. Woodford, No. 07-55089 (6-3-08). The 9th (Ikuta joined by Thompson and Wardlaw) defers to the state's decision to apply Crawford retroactively in state habeas. The petitioner had been convicted of domestic assault, and the state had used his then girlfriend's (and now wife's) prelim exam at trial. The petitioner wanted to use the Ohio v. Roberts test. The state courts said "no," and in state habeas, used Crawford. The 9th recognized that states were not bound by teague, which applies to federal habeas. States can apply new criminal procedure rules retroactively, which it did here. Sauce for the goose, sauce for the gander when there are Crawford issues in state habeas.

U.S. v. Santos, No. 06-10470 (6-6-08). Another "loss" case. Here, the defendant was involved in a counterfeiting scheme. The 9th (Reinhardt joined by Noonan and Fisher) held that a court may reasonably infer that a defendant intended to cash as many counterfeit checks as he could and for the full amount ($229,000 here). The defendant can present evidence that the scheme was organized differently, or that the loss was not intended to be the full amount, but the court did not err in this case.


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