Wednesday, March 07, 2012

U.S. v. Loughner, No. 11-10339 (3-5-12) (Bybee, concurrence by Wallace, dissent by Berzon).

In a number of appeals arising from the involuntary pretrial medication of the defendant (the Tucson shootings), the 9th affirms the district court's decisions, holding that the doctors at FCI-Springfield know best. The opinion overviews the legal standards for involuntary medication, precedent (Harper, Riggins, and Sell), the procedures at issue, and findings. Parsing all the claims, the opinion finds that due process was afforded as to both substance and procedure in determining that involuntary medication was medically appropriate, and no other alternatives were as effective. The opinion did pause as to whether the defendant, under the procedure in place, had someone actually representing his interests, but nonetheless found that the staff representative was sufficient to satisfy due process. The bottom line is that the district court's finding that there was a substantial probability that the defendant could be restored to competency in the foreseeable future was supported by evidence and not clear error. Wallace, concurring, took issue with even raising this point, and concurred in the rest. Berzon, dissenting, bemoaned the abdication of judicial determination as to the appropriateness of the involuntary medication, the melding of various standards for pretrial and post-trial, and the following of due process.

U.S. v. Lequire, No. 11-10066 (3-5-12) (Silverman with Tashima and Adelman, D.J.).

Remember when we learned the elements of larceny, robbery, and embezzlement in Crim Law? Remember when the professor shrugged and said that was common law, and in modern penal codes, we are all guilty of something so it doesn't matter. Well, it does, at least here, when a treasurer of an insurance agency is caught using the premiums collected by the agency not to pay the insurance company's fees, but for other stuff, like personal expenses for the owner, and former Congressman (Renzi). It isn't embezzlement, with which he was prosecuted, because the funds were not "in trust." There was a fiduciary duty, but the use, and misuse, of the premiums were not embezzlement because they were not entrusted to the defendant. Under long-standing Arizona law, the contract between the agency and the insurance company, allowing commingling, only required monthly payments, which, if late, accrued interest. This created a creditor-debtor relationship, not a trust. An element of embezzlement was missing. A judgment of acquittal was required.


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