Tuesday, August 29, 2017

1. In re Zermeno-Gomez, No. 17-71867 (8-25-17)(Order from Goodwin, Kozinski, & Berzon).  Note:  This is an Az FPD case.  The 9th "unequivocally stated that a published opinion constitutes binding authority and must be followed unless and until it is overruled by a body competent to do so."

It is not every day that a writ of mandamus orders a district court to comply with an appellate decision.  This was the situation here, where the Az district court considered the recent Sanchez-Gomez decision not binding precedent as the mandate had yet to issue.  Sanchez-Gomez concerned the practice of the shackling of defendants in Cal S; there, the 9th held that before a defendant is shackled, the district court must make an individualized decision as to shackling, and that shackles "are the least restrictive means for maintaining security and order."

The Az court sought not to comply, reasoning that the Sanchez-Gomez mandate has not issued.  The Az FPD took the issue up on mandamus, and sought an injunction.  The 9th enjoined the practice.  It now issues an order granting mandamus relief.  The Az court must follow Sanchez-Gomez.  Remove the shackles!

Congrats to Dan Kaplan, AFPD, for the win.  (And, congrats again to the Fed Defenders in Cal S for Sanchez-Gomez).

The decision is here:


2.  US v. Walter-Eze, No. 15-50315 (8-25-17)(Amon w/Thomas; concurrence by Nguyen).  In this heath care fraud case, the 9th affirmed the conviction and sentence.  The 9th considered whether a court's threat to make counsel pay for costs of witnesses and jurors to obtain a continuance constituted a conflict and rendered representation ineffective.  The 9th assumed, but did not decide, that Cuyler v. Sullivan, 446 US 335 (1980) applied to pecuniary conflicts.  Cuyler finds prejudice upon a showing of actual conflict.  Cuyler was not controlling though because the pecuniary penalty of payment was present at one decision that impacted client, after other continuances.  The conflict did not taint the entire representation.

The 9th also held that the court's giving of a "deliberate ignorance" instruction after the defense had given closing argument, but before the gov't's rebuttal closing, was not an abuse of discretion.  The defense, in closing, mounted a "she was naive" defense to her actions.  Since there was evidence for deliberate ignorance, defendant's rights were not deprived, even if the instruction was given after defense argument.

The 9th found no error in the calculation of loss.

Nguyen's concurrence was in the judgment.  She would hold there was no "actual conflict" and that Cuyler v. Sullivan's presumed prejudice should not be extended. The defendant could not show prejudice.

The decision is here:

3.  US v. Robinson, No. 16-30096 (8-25-17)(Bea w/McKeown & N. Smith). The 9th concludes that the Washington crime of second degree assault is not a "crime of violence" within USSG 2K2.1(922(g)(1) felon in possession). The 9th vacates the sentence and remands.

The decision is here:



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