Wednesday, May 02, 2012

U.S. v. Apel, No. 11-50003 (4-25-12) (Silverman, Rawlinson, Tunheim, D.J.).
One foot over the line makes the difference between a conviction for one's convictions or a vacation.  In this case, the defendant had been found guilty of trespassing on Vandenberg AFB.  However, the conviction was before U.S. v. Parker, 651 F.3d 1180 (9th Cir. 2011), which held that a stretch of highway where protesters gathered was not in the exclusive possession of the federal government because of an easement, given to the state and transferred to the county.  It was a safe haven, or a least zone, from federal prosecution.  So it is here too, despite the presence of a prefix sting order barring defendant from the base.  Why a published opinion that is about as long as this summary?  Well, the panel puts in a sentence that it finds the Parker decision off-base when it comes to the base ("Although we question the correctness of Parker, it is binding.....").  What is a per curiam good for if not to question a precedential line in the sand (or easement)?

U.S. v. Backland, No. 10-30264 (4-26-12) (Fisher with Paez and Clifton).
What is yours is "mine" least when it comes to mining operations on National Forest Service lands.  The Service requires however compliance with regulations.  In this case, a pair of defendants contend they engaged in honest to goodness mining operations that justified full time residency, even if the operations did not pan out.  In administrative proceedings, the Service determined that the operations were not qualifying and they did not get a special use authorization. The defendants failed to vacate, but continued to stake their claims.  The Service then prosecuted under regulatory authority.  On appeal, the 9th held that the Service could prosecute under the regulatory scheme, and that the statute, 36 CFR 261.10(b), was not vague.  Judicial review of the agency action  is available under the APA, or a defendant can challenge the decision once prosecution is initiated by the government.  The defendant must administratively exhaust within the statute of limitations.  Here, one defendant struck gold in that he did challenge within the time frame, and got his conviction reversed because the district court precluded him from challenging the Service's decision denying his plan of operations.  The other defendant had his conviction affirmed because he was out of time.

U.S. v. Dorsey, No. 10-30278 (4-30-12)(Gould with Schroeder and Beistline, D.J.).
The importance of this opinion is the 9th's holding "that the maximum sentence for a 924(c)(1)(A) conviction is life imprisonment." (4504).  The defendant here was prosecuted for tampering with a witness (arising from theft of cars, chop shops, and conspiracy) and use of a firearm in a crime of violence ( wounding a grand jury witness and her son).  The defendant raised various evidentiary challenges (i.e. vouching, 404(b)).  Testimony of witnesses about seeing the defendant with a Glock before the shooting gave credence that he had the means.  An officer's opinion expressed in cross examine that "he did it" was error but harmless.  The discussion of the maximum sentence of 924(c), and whether there was a mandatory sentence or a mandatory minimum was extensively discussed.  The defendant argued for a rule of lenity, but the 9th said that Congress was clear that the sentence was meant to be severe, despite Congress not stating the maximum.  The 9th joins with the other circuits on this.

U.S. v. Milovanovic, No. 08-30381 (4-24-12)(en banc)(Tallman writing; Clifton concurring).  
Sitting en banc, the 9th considers what exactly is required for theft of honest services under the mail fraud statutes.  The context was an alleged bribery scheme where Serbian translators in a state administered commercial license test gave the answers to the test, allowing unqualified nonresident drivers to pass.  The indictment was dismissed on the basis of the scope of the fiduciary relationship and the need for economic harm.  The 9th reverses, holding that (1) a fiduciary relationship is an element of honest services mail fraud, but that it does not need to be a classic or formal fiduciary relationship, but one of comparable loyalty, trust and confidence, the material breach of which, with the intent to defraud, deprives the victim of the intangible right to honest services (bribe and kickback situations).  (2) The foreseeable risk of economic harm is not required when evaluating a breach of honest services fiduciary duty, but instead the test of fraudulent intent and materiality. Lastly, and case specific, (3), the superseding indictment properly states an offense of honest services fraud.  Concurring, Clifton feels that the 9th does not have to spell out all the permutations of what is a fiduciary duty, but leave it as a trust  relationship.


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