Monday, July 26, 2010

U.S. v. Thomas, No. 08-10450 (7-22-10) (Bybee with Tashima and Graber). This relates to the BALCO investigation. The defendant, a former professional cyclist, testified with a grant of immunity before a grand jury. Her responses to questions about performance enhancing drugs were deemed perjury. Convicted of several counts, she raised a "literal truth" defense, arguing that her answers were, to her mind, true and the questions were vague or inartful. The 9th did not think so, and rejected her responses as being knowingly false.

U.S. v. Crews, No. 09-30183 (7-23-10) (M. Smith with Paez and Tallman). The 9th holds that Oregon's second degree assault statute, Ore. Rev. Stat. 163.175(1)(b), is a crime of violence under the Guidelines' "residual clause." The analysis is focused on Begay's two step approach: does the offense involve conduct that presents a serious potential risk of injury; and is the offense roughly similar to the enumerated offenses that appear at the start of the residual clause of the Guidelines 4B1.2(a)(2). The defendant argues that his conduct does not necessarily involve purposeful conduct. The state statute only requires knowingly, which can be a lesser standard. While negligent or reckless conduct falls outside of purposeful, the statute here requires purposeful and violent acts. The focus is on deliberative acts.


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