Friday, September 06, 2019

1.     US v. Waggy, No. 18-30171 (9-5-19)(Graber w/Owens; dissent by Tashima). When does free speech become harassment? In this case, the 9th, in a divided panel, affirms the conviction for telephone harassment under the Assimilative Crimes Act for numerous calls. The defendant, a Marine veteran, called the VA Center (where he had been barred for disruptive behavior) and complained about, well, everything; stating he owned the land and facilities, he made statements about defending himself, seizing property, and laced his diatribe with vulgarities directed at the secretary to the director. Charged and convicted of telephone harassment, the 9th affirmed because the state statute was sufficiently constitutionally cabined: requiring specific intent to threaten and harass and not just to express speech.

Tashima dissent, arguing that the statute criminalizes speech – vulgar and rough and harassing – but public and political speech nonetheless.

Matt Campbell of the Fed Def of E. Wash. & Idaho (Spokane) mounted a spirited defense and raised interesting First Amendment issues.

The decision is here:

2.     Clark v. Chappell, No. 14-99005 (9-5-19)(per curiam w/Callahan, Ikuta, & Owens). The 9th affirmed the denial of habeas in this pre-AEDPA capital case, except for issue 2, which is remanded. Issue 2 concerned a juror declaration that during the punishment phase of the case, the juror consulted with a minister. The 9th remanded for reconsideration in light of Godoy v. Spearman, 861 F.3d 956 (9th Cir. 2017). Godoy sets a two-step framework for juror improper contact. The court must determine whether the contact was possibly prejudicial. If so, the contact is then deemed presumptively prejudicial, and the next step is for the state, bearing a heavy burden, to show that it was harmless. On remand, applying the test, the district court must determine if the contact was “sufficiently improper” and “raised a credible risk of affecting the outcome in the case.”

The decision is here:


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