Wednesday, August 25, 2010

U.S. v. Havelock, No. 08-10472 (8-23-10) (Canby with B. Fletcher; dissent by Graber). The 9th reversed convictions under 18 U.S.C. 876(c), mailing threats, because the threats have to be addressed to an individual person, as reflected in the address on the mailed item. The jury cannot go within the envelope and read the salutation or contents to find a named person. Here, the defendant was angry with the world as a result of business setbacks. He mailed packets addressed to news organizations and websites that were a hodgepodge of rants, threats, and warnings. He dropped the packets in the mail. The rants though, were mailed on the eve of the Super Bow in Glendate, Arizona, and indicated that he would shoot innocent people, slay children, and create a bloodbath at the game. He would be responsible for a massacre at the Super Bowl. The blood of the dead would be on the hands of various government and city officials. The defendant anticipated being shot by the police. Armed to the teeth with firearms (legally possessed), the defendant went to the Super Bowl site. There, he had second thoughts, called his family, and turned himself in. No one was hurt. The mail rants were read on Monday, and the defendant was subsequently charged with mailing threats and convicted. The 9th reversed, holding that the threats had to be addressed to someone, and these were not. The statute specifically states that mail must be addressed to a "person" and this means a natural person. The context of the statute makes clear an individual is intended. The government so agreed. To prove an addressee, though, the government cannot use as evidence the contents of the letter or packet, but must look solely at the address on the envelope. This is different from the approach of the Tenth Circuit, in Williams, 376 F.3d 1048 (10th Cir. 2004), which allows "at a minimum" the envelope and the salutation. This is too broad a fishing expeditition for the 9th. The 9th sidesteps having to rule on the other issues of first amendment and mootness of threat. Graber dissents, arguing for a wider definition of "addressed," and would include corporations of businesses. Graber uses an example (among several) that a letter addressed to the Ninth Circuit threatening to take vengeance on a judge for today's decision would escape prosecution because of this result.

Congratulations to AFPDs Dan Kaplan and Jeff Williams of the FPD of Arizona (Phoenix).

Hurd v. Terhune, No. 08-55162 (8-23-10) (Beezer with Pregerson and Thompson). All the world is a stage, but Miranda does not mean you have to act out a particular role. Here, the petitioner was charged with first degree murder of his wife. There was an ongoing divorce and the issue was whether the shot was accidental (showing her how to use the gun in case of an intruder) or premeditated murder. The first trial resulted in a hung jury. The second trial resulted in a LWOP sentence. At trial, the state court allowed the prosecutor to argue that petitioner's refusal to re-enact the shooting of his wife during police questioning was affirmative evidence of guilt. The 9th held that this was unreasonable application of Miranda and Doyle v. Ohio, 426 US 610 (1976). A petitioner can invoke Miranda on a question by question basis, and in response to a request to act something out. The petition was granted.

U.S. v. Ali, No. 07-10529 (8-25-10) (N. Smith with Rymer and McKeown). Buy low and sell high is fine. Indeed, our economy depends upon it. But, some companies sell low to special retailers who are then supposed to sell at a discount to specified users. Specifically, Microsoft sells its software to authorized educational retailers who sell it to educators and education institutions. If, however, a buyer says he is an education retailer and he is not; or he buys as an education retailer but sells to non-education users, then the buyer is committing fraud. What is more, it can be wire and mail fraud. And, if profits are used to buy stuff outside of the scheme, it can be money laundering. All of this happened here, where the defendants masqueraded as authorized educational retailers, but sold to non-authorized users to the tune of $20 million. The government prosecuted for wire and mail fraud, and the charge was upheld. The terms of the sale were protected, and the expectation of profit if the software had been properly sold was within the statute's purview. The 9th also uphold all the money laundering counts but one against a sufficiency of evidence challenge. The reversal of the one money laundering count came because the government did not clearly show that profits were not plowed back into the scheme, so that there was merger. The profits had to go outside the scheme for laundering.


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