Thursday, November 06, 2008

U.S. v. Youssef, No. 07-10335 (11-5-08). The defendant checked "no" to the question of whether he had ever been arrested or convicted of an offense on the I-495 immigration form to adjust status. He had, in fact, been convicted of resisting or disobeying a court order. He was charged and convicted at a bench trial. The issue on appeal was whether the government had to prove this statement was material as an element of the offense. The 9th held, per curiam, that 18 U.S.C. 1015(a) does not require the false statement to be "material" as an element of the offense. The plain language of the statute says "false statement" and has no mention of materiality. The 9th follows the 4th (usually a bad sign), and also reasons that Congress has inserted the requirement of materiality in other false statement provisions (1001).

U.S. v. Williams, No. 06-50599 (11-6-08). "Judge, all the other jurors want to convict, there's a sense of disrespect and prejudice in the room, and I'm the lone hold-out. What to do?" This was the gist of the note sent by one juror to the court in a trial on conspiracy to commit robbery and other nefarious activities. The answer, delivered by the 9th (Bybee with Canby and Kleinfeld), was, "Don't give an Allen charge." Because the district court did, even though it said it was not, the case is reversed. The district court erred in giving the an instruction about going back, listening to one another, hearing views, and playing nice, because the court knew there was a hold out, and specifically who. This focus meant that the court could be perceived as pressuring that juror (i.e. that instruction was directed to me and telling me that I'm wrong). The 9th emphasized when a juror clearly disclosed that she disagrees with the rest of the jury and cannot return a different verdict, the court cannot instruct the jury to continue. The 9th vacated and remanded. The 9th held, as to the other issues, that there was sufficient evidence for conviction and dismissal was not required for prosecturial misconduct.


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