Monday, July 25, 2011

U.S. v. Dann, No. 10-10191 (7-22-11) (Gertner, D.J., with B. Fletcher and Thomas).

This was an appeal from convictions for visa fraud, forced labor, document servitude, and harboring. Good help was apparently hard to find, and so the defendant, argued the government, brought a nanny/housekeeper from Peru under a false visa, and kept her involuntarily for two years. The defense was that there was a friendship, and the relationship soured, which lead to these accusations. The jury convicted. The 9th affirmed the convictions, but reversed a restitution order that directed that child support payments for the defendant go to the victim. The 9th reasoned that the child support payments were for the minor children, and that the parent was a mere conduit. The issues of child support are state matters and the children were not represented. There are other means.

John-Charles v. State of California, No. 09-16530 (7-22-11) (Ikuta with Thomas and Restani, Ct of Int'l Trade).

File under: be careful what you wish for. The petitioner was facing assorted robbery, burglary, and firearms charges. He had appointed counsel, whom he kept trying to fire. After the third time, the court allowed the petitioner to proceed pro se after a Faretta colloquy. On the very eve of trial, the petitioner said "Wait a minute, this is confusing, I want counsel." "No," said the trial judge; "you made your legal bed." "I want to fire myself," said the petitioner. "Too bad," replied the judge. "But I would even ask for reinstatement of my previous lawyer," said petitioner. Again the trial court said "no." The petitioner kept asking. Although the state courts found that there was no right to reinstatement of counsel, the trial court had abused its discretion in refusing reappointment here. The error, though, was harmless. The evidence was overwhelming, and the co-defendant was convicted, as well. In the 9th, the panel affirmed the dismissal. AEDPA mandates deference to state courts in the absence of controlling Supreme Court precedent. The state court could make the determination, and the 9th would not find structural or constitutional error requiring relief when the petitioner had competently waived counsel, and under these facts, waited until trial was about to begin to seek reinstatement.


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