Friday, April 24, 2009

U.S. v. Mendez-Sanchez, No. 08-30044 (4-23-09). Faretta vs preference for a different lawyer? Here, the defense counsel had a difficult relationship with the defendant facing drug charges: the defendant insisted there was no evidence because there were no photos of the drug dealing, and focused on trivial discrepancies (such as a date being crossed out on the warrant and initialed). The defendant wanted a different lawyer; and when the court appointed a second lawyer, the defendant wanted yet another. The trial date was approaching when the court held a hearing. The defendant indicated he wanted to represent himself but his Faretta colloquy indicated ambiguity. The court thereupon kept appointed counsel. The defendant was convicted. On appeal, the 9th (Gould joined by W. Fletcher and Tallman) held that a defendant may invoke his Faretta rights after denial of a motion for subsitution of counsel, but such invocation must be unequivocal. This was not. The defendant indicated he wanted counsel, just different ones. The 9th did not require the court to advise the defendant that he could have stand-by counsel; nor did the court have to initate a compenetncy determination sua sponte. The exchange and knowledge displayed by the defendant indicated competence. He just did not like the plea offer or the evidence.

U.S. v. Mejia-Luna, No. 07-10472 (4-23-09). The 9th (Tallman joined by D. Nelson and W. Fletcher) affirmed an alien smuggling conviction. The agent testified as an "expert" on the tactics and ruses used by smuggling rings. The 9th, again, said that such expert tetsimony was permitted under the abuse of discretion standard, and it allowed the jury insight into behavior.

U.S. v. Crowe, No. 08-30173 (4-24-09). The pregnant girlfriend was being assaulted in her house by her boyfriend. Hit repeatedly and shaken, she reached for a knife, and stabbed the boyfriend. He staggers back, says something like "I'm out of here" and leaves. He returns later, collapses and dies. The government charges voluntary manslaughter, and the jury convicts on involuntary. The judge (the Hon. Sam E. Haddon) then gives 32 months as needed just punishment and the nature and circumstances of the offense. The 9th (Jenkins joined by Paez and Rawlison) affirm the conviction and sentence. The 9th held that the court did not plainly err in giving sua sponte an involuntary instruction, because the act could have been done in a reckless manner. The defendant's self defense claim and instruction did not negate the possibility of involuntary. The court also did not err in admitting 404(b) evidence of other domestic disputes and violent acts. Finally, the sentence was not unreasonable. The court considered the guidelines and also considered the 3553 factors in formulating a sentence. The court's emphasis on certain factors, and its refusal to grant a departure, did not make the sentence unreasonable.
U.S. v. Diaz-Arueta, No. 05-10224 (4-24-09). The 9th (Noonan joined by Tashima and W. Fletcher) affirm a 1326 sentence. The prior state convictions, in various permutations, were felonies. The defendant failed to show that prior convictions that could either be felonies or misdemeanors were, in fact, misdemeanors. The law is that the convictions were to be considered felonies unless the defendant moved, or the court filed, a recharacterization. There was no record of that.


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