Monday, April 11, 2011

Pearson vs. Muntz, No. 08-55728 (4-5-11) (Berzon with Reinhardt and M. Smith). Can a federal court examine a state's (actually California Governor Schwarzenegger's decision) to deny parole to an inmate because of some evidence that the crime was especially callous. The district court had granted the petition, but the 9th now reversed. The 9th wrote that it was compelled to reverse because federal examination of a parolee's due process rights, under the recent Supreme Court's decision in Swarthout vs. Cooke, 131 S. Ct. 859 (2011) (per curiam), is limited to whether the parolee had the chance to be heard, examine the evidence in advance, and receive notification. Due process review does not include looking at the particular quantum of evidence supporting the decision independent of any state law imposed requirement. Once procedures are provided, the due process inquiry ends.

U.S. vs. Delgado-Ramos, No. 09-50580 (4-7-11) (Per curiam with Rymer, Callahan, and Rymer; concurrence by Rymer). Padilla vs. Kentucky, 130 S. Ct. 1473 (2010) requires defense counsel to advise on immigration consequences. Shouldn't a court, taking a plea under Fed. R. Crim. P. 11, have to inform the defendant of the immigration consequences? Didn't Padilla overrule prior Ninth Circuit precedent? The 9th answers "no" and "no." The defendant entered a 1326 plea before Padilla. He now argues that he should have been informed by the court of the immigration consequences. Under a plain error review, the 9th finds that Padilla did not overturn U.S. vs. Amador-Leal, 276 F.3d 511 (9th Cir. 2002). Padilla focused on Sixth Amendment ineffectiveness of counsel. As such, Padilla is different from the due process fairness analysis of a guilty plea. Moreover, a court is focused on the plea to the charge; the court cannot control another agency's decision. The court must advise of the direct consequences, but not all collateral consequences. As such, a court is not required to advise of immigration consequences. Concurring, Rymer writes that defendant would be unable to prove prejudice under any analysis.

U.S. vs. Greer, No. 09-10095 (4-7-11) (Bybee with Schroeder; dissent by Panner, Sr. D.J., D. Ore.). The defendant was a Las Vegas truck driver who delivered bales of shredded paper to be recycled. One problem: some papers (about 50 lbs worth) had not been recycled. They contained information from casinos' customers -- really, really confidential stuff. The defendant later testified he thought he "was retiring from trucking that day" because he could get money for them. He then tried to get the casinos to pay him for the recovery. The government charged him with extortion (his efforts make amusing reading). He was convicted of extortion under the Hobbs Act and of racketeering. On appeal, he argued that the government improperly asked him on cross-examination if government witnesses were lying. The 9th, under plain error review, sidesteps, saying that the error was not so clear that the court should have recognized it without an objection. The tougher issue was with the jury instructions. The court gave a general instruction that the government does not have to prove the defendant knew his actions were unlawful. This was paired up with an element's instruction that stated that the defendant acted with the intent to obtain money he knew he was not entitled to receive. Again under plain error review, the 9th determined that there was not a risk of confusion. The general instruction was for the "ignorance of the law" while the element mens rea was for knowing what the acts were. Moreover, no circuit has held that specific intent was required and one circuit, the 6th, held that it was not. The 9th defers ruling on that issue; under plain error, there was not error. Dissenting, Panner argues that there was confusion, and error, because the knowing/not knowing clashed.

U.S. vs. Ewing, No. 10-50131 (4-7-11) (Ripple (7th Cir.) with Pregerson and Graber). The 9th upholds a search, finding that there was probable cause, under a totality of circumstances, to search a car and the contraband (counterfeit bills) within it. Here, the police pulled a car over for expired tags. Approaching the car, the officer asked if anyone was on probation and parole. One passenger said "yes" and when the officer "conversed" with him, the officer noticed folded bills stuffed in the weather-stripping of the window. Why, wonders the officer, was there money sticking out the window? No one said it was their money. The officer noted that the serial numbers on the 20's were the same. Later, one of the passengers said that defendant had been making counterfeit bills and described the circumstances. In searching the car, with consent of the owner, counterfeiting equipment and materials were found. The district court upheld the search. The 9th did likewise. First, the 9th did find that the government had waived the standing issue (the defendant was not the owner of the car). Second, the 9th held that the officer had probable cause to search the car under the circumstances: the passengers appeared nervous; the officer saw money in the weather-stripping, it was an odd place to store bills, and the officer believed that it was related to drug trafficking, and that one passenger appeared under the influence of a stimulant, and he was on parole. Since the officer had probable cause to search the car, he could search the contents, which included unfolding the money (revealing the identical serial numbers).


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