Tuesday, December 11, 2012

U.S. v. Hernandez-Estrada, No. 11-50417 (12-5-12) (Hurwitz with Watford; concurrence by Kozinski)
An interesting jury "wheel" selection of prospective jurors. The 9th looks at a challenge to the selection procedure of the SD Ca (San Diego) and the practice of disqualifying prospective jurors who state that they have English difficulties among other deficiencies. The analysis is constitutional for cross section and statutory under the Jury Selection and Service Act. The 9th affirms the conviction but cautions the district court and warns other districts that practices where the clerk determines who can speak English or can read and write are violations of the Jury Selection and Service Act. Here, the violations were not intentional and somewhat technical, but cause for concern. This is a signal to check on the practices of your district. The 9th also holds that there is no bright line underrepresentation of minority jurors, although the court expresses concern with the 9th's precedent of looking solely at a 7.7% underrepresentation. This is the basis for Kozinski's concurrence, where he points out that a minority may never reach 7.7% of a population while a majority may dip to 67% and trigger review. Kozinski notes the Supremes question a bright line analysis, and he flags the issue for en banc. The opinion also expresses concerns with the district court's failure to keep updated statistics and with the high rate of jurors failing to report race or ethnic background.

This appears to be the first criminal opinion authored by Judge Hurwitz.

Although Deputy Federal Defender Michele McKenzie lost the appeal, she raised important issues. Her efforts should cause all FPDs and CJA to reexamine the practice of their district's jury summoning.

U.S. v. Harris, No. 11-50503 (12-5-12) (Graber with Ikuta and Hurwitz)
A TSA employee helped a passenger take a pocketknife on a flight.  The pocketknife had a two and half inch blade.  Charged and convicted under 49 USC 46505 for helping to bringing a "concealed dangerous weapon" on board, the defendant argued that it was too vague.  The 9th rejected the issue, holding that such a weapon could be dangerous, and finding it not like a starter gun, which may look dangerous but is not.
U.S. v. Keyser, No. 10-10224 (12-6-12)(Clifton with Reinhardt and N. Smith)
Was it a publicity stunt, free speech, or threat?  The 9th came down on threat. The defendant wrote and self published a book on anthrax. To promote it, he sent out packets of sugar labeled "ANTHRAX" and a CD to 120 people, including a Congressman, and managers of Starbucks and McDonalds. This was after being warned once before by the FBI after he had done a similar stunt previously. He was charged and convicted of sending threatening communications. The 9th did not find this fell under "free speech," as it scared people, and was so intended. The 9th also found that packets sent to Starbucks and McDonalds were addressed to people, as required by Havelock, because the address had "Manager," which meant a person. The sentence was vacated and remanded, however, because of procedural error. The court erred in increasing the levels by 4 for each threat, when the counts were not grouped, and the adjustment was inapplicable.
Ortiz v. Yates, No. 11-56383 (12-6-12)(Berzon with Ebel (Sr. C.J. 7th); dissent by Fernandez)
In a habeas case, the 9th found constitutional error in a state court precluding cross examination of the key witness on the issue of whether she was pressured or threatened by the district attorney's office to stick with her original account. The witness was the victim of domestic abuse, and she supposedly was going to recant but for the threats of perjury and taking her children away. The opinion is replete with the need for a vigorous cross examination. In dealing with AEDPA, the 9th noted the state court found err, but never discussed harmlessness. To the 9th's mind, this could not be harmless. On the contrary, dissents Fernandez, arguing that the error was indeed harmless given the case and evidence.


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