Thursday, July 08, 2010

U.S. vs. Graf, No. 07-50100 (7-7-10) (Tallman with O'Scannlain and Block, D.J.). This deals with attorney-client privilege in the context of corporate counsel. The defendant, found to be a functional employee of a corporation, spoke with corporate counsel. Was the conversation privileged? Yes, if the defendant came to talk about himself, his problems, made clear it was all about him, did not focus on the corporation, and the corporate counsel knew that it was the defendant's own issues. That was not the case here, where the defendant's discussions with counsel for a corporation that was in trouble with insurance fraud issues was about the corporation. The 9th adopts the corporate counsel privilege with employees test set forth in Bevill, 805 F.2d 120 (3d Cir. 1986). This test has been adopted by the 1st, 2nd, 10th and now the 9th circuits. The case is also interesting as to the discussion of what constitutes a functional employee when the defendant, as here, is supposedly an independent contractor (but looks, acts, and appears to be an employee).

U.S. vs. Chavez, No. 09-50434 (7-8-10) (Per curiam by O'Scannlain, Tallman, and Block, D.J.). Can one be parsimonious about Apprendi? "No," flatly states the 9th, when it comes to the parsimony clause of 18 U.S.C. 3553(a). Apprendi maximum sentence refers to the criminal statute of conviction, and not the over-arching sentencing policy of the parsimony clause. Although the clause states that the sentence should not be greater than necessary, that clause does not set a separate statutory maximum under the Sixth Amendment apart from the statutory maximum of conviction. Any other reading would make any sentence open to a parsimony challenge.

U.S. vs. Brooks, No. 08-10301 (7-8-10) (Canby with B. Fletcher and Graber). In an interstate prostitution conviction case, the 9th draws the distinction between two interstate trafficking of minors statutes: 18 U.S.C. 1591(a) and 2423(a). The former requires specific knowledge that the victim was under 18; the latter does not. The former also requires that the defendant knew the victim would engage in a sex act, the former only requires intent. There is overlap between the statutes, and the distinction is fine, but the two statutes are separate, and therefore not multiplicitous. The 9th also upheld the testimony of a detective as an expert on the relationship between pimps and prostitutes, and that such a relationship is not common knowledge to the jury. The 9th does vacate the sentence and remand for error in the enhancement under 2G1.3(b)(1)(B), which is a +2 level adjustment for being a parent, relative, or guardian, or in the care or custody or control of the defendant. Although the 9th said this was a close question, the focus of the guideline characteristic is on parent-like care and custody, and on like figures, such as teachers or day-care providers. The relationship here, pimp to prostitute, falls outside of that, even with the minor's attachment. To apply the adjustment here, where the crime and guideline deal with the act, is not appropriate.

U.S. vs. Evans-Martinez, No. 09-10098 (7-8-10) (Bea with Farris and D. Nelson). The 9th vacates and remands sentencing in convictions for child sexual abuse, child sexual exploitation, and witness tampering. The district court used the 120-month mandatory minimum sentence for child sex exploitation as the starting point for sentencing on the two other counts, despite the fact that they did not have the same mandatory minimum sentence, nor any mandatory minimum sentence. The court needed to distinguish between the counts.


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