Tuesday, August 27, 2019

1. Panah v. Chappell, No. 13-99010 (8-21-19)(Owens w/Wardlaw & Nguyen). The 9th affirmed a capital conviction and sentence. It rejected the petitioner’s Napue claim (knowingly false serology testimony presented).  The 9th was troubled by the testimony, and even aghast at the lack of pretrial investigation and mitigation, but AEDPA deference and the terrible facts of the case made any error harmless.

Tough case and valiant efforts by Joe Trigilio, Mark Drozdowski, and Susel Carrillo-Orellana of the FPD Cal Central CHU (Los Angeles).

The decision is here:


2. US v. Green, No. 17-30227 (8-21-19)(Berzon w/Tashima & Fletcher). The 9th vacated sentencing and remanded in a rare allocution/acceptance of responsibility case. The 9th held that here it was plain error for the district court to conclude that it must decide acceptance before hearing from the defendant at allocution. This error was both procedural and substantive.

The contested matter here was relevant conduct for guns in a safe (the defendant was a prohibited possessor). He received an adjustment for the number of guns.  He admitted possession of the gun on him when stopped. His argument was that the govt could not prove the other guns in the safe were his. The govt could (via recording after his arrest asking about the safe). The court then implied that his contesting the adjustment endangered his acceptance. Defense counsel said that the defendant intended to allocate and express contrition.  Too late, stated the court, because procedurally he had to make the finding before allocution.  As summarized above, the 9th found this both procedurally and substantively plain error.  The court is not compelled to decide acceptance before hearing allocution.

The decision is here:



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