Monday, March 14, 2011

U.S. vs. Bonilla, No. 09-10307 (3-11-11) (Reinhardt with Berzon and Pollak, Sr. D.J., E.D. Pa).
In Padilla, the Supremes made clear that the defendant must be advised of the immigration consequences to a guilty plea. Here, the defendant, a legal resident who had been in the country for 30 years, faced a count of possessing an unregistered firearm and being a felon in possession. He had mental issues, and so his wife (a U.S. citizen) frequently spoke for him. He asked his lawyer what the immigration consequences were, and she said probably deportation. After he pled straight up, he learned that he was facing certain deportation for aggravated felonies. He then moved to withdraw his guilty plea. the district court denied the plea, stating that he knew there would be some consequences. On appeal, the 9th reversed and remanded. The 9th stressed that the standard for moving to withdraw was a "fair and just" reason, which was to be liberally construed. Here, the defendant and his wife inquired about the consequences before the plea, and were not told of the dire consequences; it was only afterwards that the full extent of the consequences of the guilty plea came through. Moreover, the defendant plead straight up, and so did not receive some great benefit in accepting a plea. The fact that court felt that the defendant would have pled guilty anyway does not cut it. Padilla is clear that the real consequences of the plea must be disclosed. Although the lawyer failed to get him the information, believing he was a citizen, the lawyer did come through afterwards and admitted a mistake.

U.S. vs. Kohring, No. 08-30170 (3-11-11) (Thomas with Tashima, partial concurrence and partial dissent by B. Fletcher).
The defendant here was a former state representative charged and convicted of public corruption as part of the undercover operation that also involved Senator Ted Stevens. Stevens had his charges dismissed because of the government's withholding of Brady and Giglio evidence. While this case was on appeal, and the Stevens mess came out, the government disclosed information, and suggested that the case be remanded for the Brady. The 9th remanded for the district court to see if there was a Brady violation, and whether it was prejudicial. The district court found, in fact, that Brady was withheld, but considered it immaterial because it did not go to the actual bribery. On appeal, the 9th reversed and remanded for a new trial. The 9th noted that the Brady information went to the character of the chief cooperating witness (Allen), his motives, bias, ability to remember, truthfulness, and there was also evidence that exculpated the defendant. The 9th wrote a treatise on how this evidence could (and should) be used. B. Fletcher concurred, and only dissented because she thought the withholding was flagrant and intentional, and she would dismiss with prejudice.


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