Monday, October 31, 2022

1.  US v. Richards, No. 21-10190 (10-31-22)(Callahan w/Bybee & Collins). The 9th affirms two consecutive 24-month sentences for SR violations. The 9th rejected the argument that SR violations for criminal conduction should be proved beyond a reasonable doubt and not preponderance. Justice Breyer’s controlling concurrence in Haymond still rules the day; the 9th rejected this in previous precedent; and all other circuits have rejected this argument. The consecutive sentences are supported by the actions of two distinct offenses, at different places and times (possession of a firearm and ammunition). The sentences also flow from two distinct counts in the underlying indictment. Last, the violation and sentences are supported by sufficient evidence.


2. In re Jane Doe, No. 22-70098 (Graber w/Friedland & Koh). The 9th reiterates that a defendant may agree to restitution in a plea agreement even where there is otherwise no statutory authority for it.


Friday, October 28, 2022

US v. Holguin, No. 19-50158 (10-13-22)(Nguyen w/Bea; partial concurrence/partial dissent by Berzon).  It would be “prudent” to test expert witnesses under Daubert, especially with such expertise as gangs and when the experts were law enforcement.   Such testing did not occur in this Mexican Mafia case when the “experts”  were just lay witnesses and officers. Yet the  9th affirmed  under plain error because of the harmlessness. Other issues include dual role of law enforcement  as experts and lay witnesses, adequacy of jury instructions about how to use such testimony, and gang evidence.

Berzon dissents on the harmlessness of introducing drug jargon expert testimony.

US v. Saelee, No. 20-10209 (10/11/22)(Collins w/Nguyen & Burgess). The 9th affirmed convictions for attempted possession of ecstasy and conspiracy. The 9th find the “independent source” doctrine permitted evidence to come in despite 4th amendment violations (the warrant was issued minutes after the violations based on previous information). The 9th also held evidence was sufficient evidence to support the convictions. Co-conspirator statements were not hearsay and admission of other evidence, such as showing a photo of a wad of money, and testimony about ammunition, were not erroneous nor prejudicial. 

The decision is here: