Thursday, December 31, 2015

United States v. Navarrette-Aguilar, No. 14-30056 (12-28-15)(Paez with Fisher and Ikuta).

The 9th affirmed in part and reversed in part a convictions for heroin trafficking.  The reversals related to findings that more than one kilogram of heroin was distributed.  There was insufficient evidence to support such a finding; and the district court erred in finding that the conspiracy would have eventually distributed a kilo.  This was speculation.  The finding was for an element, not sentencing, and therefore reversal was in order.  There was no abuse of discretion in allowing the prosecutor to impeach a defense  witness (defendant's sister) with the defendant's prior convictions when she, the witness, opened the door by saying she "knew her brother" was not involved in drugs.  Any error moreover was harmless.

The decision is here:

McDaniels v. Kirkland, No. 09-17339 (12-24-15)(en banc)(Friedland writing and concurrence by Ikuta, joined by Tallman Callahan).

The 9th remanded to the original panel a Batson claim.  The en banc court found that in 2003, a court did not have to undertake a comprehensive juror comparison in a Batson challenge, if not requested by counsel.  Only in Miller -El, in 2005, did the Supremes conduct a comparative analysis.    The 9th though reaffirmed precedent that a federal court, in assessing habeas claims under AEDPA and after Pinholster, can consider evidence that was available to the state court (such as a comparative juror analysis) even if the state court failed to conduct such a comparison.  The concurrence stressed that Miller-El did not establish a new procedural rile to conduct such comparisons and that failure to do so would not result in a contrary decision to Supreme Court precedent.

The decision is here:


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