Thursday, June 21, 2018

1. US v. Reinhart, No. 16-10409 (6-18-18)(Murguia w/Gould & Freudenthal). 

The 9th affirms – it’s a good thing -- the district court's finding that a defendant was not subject to a mandatory ten year sentence for possession of child porn.  The defendant had prior state misdemeanor convictions for possession of child porn and sexual exploitation of a child.  Cal Penal Code 311.11(a) and 3(a).  Applying the categorical approach, the 9th held that California's state convictions were overbroad and did not categorically match the federal convictions.  They were also indivisible. The 9th rejected the government's argument that the statute's language of "relating to" for priors overrode the categorical approach.  The 9th affirmed the 78 month sentence.

Congrats to AFPD Ned Smock of Cal Northern (Oakland).

The decision is here:


2. US v. Espino, No. 16-50344 (6-18-18)(Bataillon w/Callahan & Nguyen).

The defendant was charged with lying to a grand jury.  The defendant supposedly made two false statements as a tax preparer. The jury verdict form, after much discussion to simplify, read that the jury had to find the defendant not guilty beyond a reasonable doubt to acquit.  There was no objection.  On appeal, the 9th held that of course this was error. However, the error was harmless.  The jury instructions as a whole made clear the government had the burden.

The decision is here:


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