Wednesday, February 25, 2009

U.S. v. Banks, No. 07-30130 (2-25-09). This is a child porn case, where the interesting issue, and heated exchange, occurs between Rawlison joined by Graber and Alarcon dissenting over the issue of grandparents and marital privilege. Here, as one of several issues, the 9th found that the district court erred in allowing defendant's spouse to testify about communications, but it was harmless. In a spirited dissent, Alarcon argues that the exception to the privilege regarding abuse of children should extend to grandparents. The majority shrinks back from this expansion, noting that the grandparents here were not the functional equivalent of parents.

U.S. v. Esparza-Herrera, No. 07-30490 (2-25-09). The 9th, per curiam, affirms the district court's ruling that the Arizona statute for aggravated assault, 13-1204(A)(11) was not a "crime of violence" under the Guidelines 2L1.2 because it did not correspond to a generic definition. Under the categorical approach, aggravated assault in the state could apply to extreme indifference, and so it fell outside the generic definition. In a concurrence to the per curiam, Gould (joined by Tallman and Callahan) all bemoan the Procrustean bed of the categorical approach, and the restraining shackles of precedent, and wistfully pine for the "common sense" approach of the 5th Circuit which looks at the ordinary and common meaning of the statute.

U.S. v. Nickerson, No. 07-30382 (2-25-09). The defendant was convicted on drug charges. His requests for a new lawyer on the day of, and during trial, were denied. On appeal, the 9th affirms the conviction, and also declines to find that a per se violation of a state's bar ethical rules in IAC. The violation here was when counsel approached and talked to a supposedly exonerating witness who was represented by counsel, and whose counsel repeatedly told defense counsel "back off" and "don't talk to my client."


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