Tuesday, September 18, 2012

U.S. v. Lukashov, No. 10-30348 (09-18-12) (Gould with Schroeder and Alarcon).
The 9th affirms the conviction of the defendant for aggravated sexual abuse.  He was a long-distance truck driver, and on one of his multi-state hauls, he took the young child of his girlfriend.  The child claimed she was sexually abused during the trip.  The defendant objected to the use of child abuse expert, objected to venue, argued for insufficiency of evidence and argued that the court should let him put in 404(b) evidence that the girlfriend had made false accusations in the past (the court had allowed in opinion or reputation evidence on her truthfulness).  The jury convicted on one count of aggravated sex abuse, but returned a verdict that acts did not take place in the district (Oregon) but that transportation occurred from and across Oregon.  On appeal, the 9th found no error with the evidentiary issues, and found there was sufficient evidence.  The venue issue, though, caused the 9th pause.  The opinion goes on at great length about the need to find venue by a preponderance of evidence (not beyond a reasonable doubt) and that the sufficiency of evidence was a question of law.  Given the jury's verdict here, the 9th fashioned the following rule:  "Where a rational jury could not fail to conclude that a preponderance of the evidence establishes venue, then a court is justified in determining venue as a matter of law."  The court here was justified in so finding.

Rogovich v. Ryan, No. 08-99015 (09-18-12) (Schroeder with O'Scannlain and Graber)
(Note:  This is an Az FPD case)
The 9th affirms the denial of a capital habeas.  Under AEDPA deference, the 9th concluded that there was not IAC in trial counsel not attacking an aggravator for multiple victims, and that appellate counsel was not ineffective.  At trial, defense counsel had raised an insanity defense.  On that issue, in habeas, petitioner argued that his consent to such a defense should have been placed on the record.  On this issue, the 9th concluded that there was no clearly established federal law that required such consent by the defendant.


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