Wednesday, January 21, 2009

U.S. v. Esparza, No. 07-50293 (1-20-09). This opinion deals with supervised release conditions in a child pornography case. Specifically,the failure of the sentencing court to make specific findings to support conditions that could mandate the taking of all prescribed medication, and physiological testing, and the delegation of the potential for inpatient treatment. The 9th per curiam (Graber, Clifton and Trager) vacated these conditions and remanded for the court to support its findings. The court in sentencing unduly burdens liberty interests in requiring medication that could adversely affect liberty interests, and there needed to be more specificity. The same with physiological testing. Inpatient treatment cannot be delegated to the probation officer, and that condition is stricken. The court, however, may choose to mandate inpatient treatment but it has to make findings and not delegate the power to the probation officer.

U.S. v. Bond, No. 06-50628 (1-20-09). The 9th (O'Scannlain joined by Thompson and Tallman) affirm a conviction, holding that the failure of the government to call a witness that might have had favorable testimony was not a Brady violation. This was a fraud case. One of co-defendants' partners was charged in Florida, and he plead and testified against another co-defendant. The government listed the cooperating witness on its witness list, gave summaries, and provided information as to the court reporter and transcript in Florida. The defendant made no attempt to subpoena the witness, and relied upon the government to call him. The government did not. The 9th found that this failure was not a Brady violation, and that the defendant could not force the government to call a witness. The defendant was aware of the witness and could have acted to secure his presence.

U.S. v. Aguila-Montes De Oca, No. 05-50170 (1-20-09). The 9th grants a rehearing in this case, and issues a new opinion, wherein it still finds that the defendant's prior California burglary is not a crime of violence under the Guidelines because, under the state scheme, an entry for a burglary does not require it to be unlawful or unprivileged. The prior decision of Navarro-Lopez controls, 503 F.3d at 1073. Gould continues to dissent, arguing that the court went too far in applying the categorical approach.


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