Tuesday, July 12, 2011

U.S. v. Quizon, No. 10-50240 (7-11-11) (Berzon with Pregerson and Fisher).

This regards a condition of supervised release in a child pornography sentence. Is it too intrusive to require monitoring technology be installed on the defendant's computer-related devices? No, holds the 9th, because the monitoring is narrowed to the devices related to Internet use, and the conviction here related to downloading child pornography. The requirement is sufficiently focused, and can always be revisited in the future as technology changes.

U.S. v. Kennedy, No. 10-30065 (Ikuta with B. Fletcher and Paez).

The defendant was convicted of possessing and transporting child pornography. The court ordered $65,000 in restitution to be paid to two victims. The 9th reverses this restitution because the government failed to carry its burden of proving that the defendant's conduct proximately caused the victims' losses. The opinion focuses on 18 USC 2259 which requires restitution to victims in such cases. However, the harm must be proximately caused. The defendant's viewing of the pictures could not be linked directly back to the injuries suffered by the victims.

U.S. v. Duncan, No. 08-99031 (7-11-11) (Graber with Fisher and M. Smith).

The 9th remands to the district court to assess the competency of the defendant to waive his right of appeal from his federal death sentence.

Ngo v. Giurbino, No. 08-55564 (7-11-11) (Clifton with Bybee; partial concurrence and partial dissent by Noonan).

In an AEDPA deference case, the 9th affirms the denial of the petition challenging convictions for first degree murder, and six counts of attempted premeditated murder, arising from a gang related car chase. The 9th holds that there was sufficient evidence to support the convictions. The 9th also rejected the Batson claim, holding that the race-neutral explanations all withstood AEDPA deference. Noonan, in his dissent, argues that three counts of attempted premeditated murder should be reversed for insufficient evidence because there was little if any evidence to show that the petitioner knew there were people in the back seat of the car.

Richter v. Harrington, No. 06-15614 (en banc per curiam).

On remand from the Supremes after the 9th had reversed for IAC for failing to call forensic experts to explain evidence, the 9th concludes that the petitioner's other claims also fail. These include other claims of IAC for experts, a claim about a response to a jury note, and a Brady claim.


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