Best Defender Bytes:

January 14, 2011

Ninth Circuit Opinions 01-12-2011

Filed under: California Appeals Attorney — Tags: , , , — fayarfa @ 4:27 am

First degree murder convictions affirmed for sufficient evidence of premeditation.

US v. Begay, No. 07-10487 )(en banc majority opinion by Clifton; dissent by Reinhardt, Thomas and Berzon).

[Ed. note:  This case came from the FPD Arizona office]  The defendant was convicted of two counts of first degree murder and two gun counts.  The panel had vacated the first degree murder convictions for insufficient evidence of premeditation and had affirmed the gun counts.

Taking the case en banc, the 9th now reverses the panel, and affirms the first degree murder convictions as having sufficient evidence.  The facts involve the defendant shooting two individuals after they had stopped their cars early in the morning of March 28, 2002.  The prosecution argued sufficient evidence for premeditation through the acts of the defendant turning around from an initial conversation, walking to his car, getting a rifle and then shooting.

There was no evidence of agitation or being rushed.  Using the Nevils two prong test for sufficiency, see 598 F.3d at 1164, the acts have to be viewed in the light most favorable to the gov’t, and whether such facts adequately support the decision by any rational jury.  The majority found that the facts here did.  The dissent argued that the decision to go en banc was flawed because it wasn’t to address national importance, circuit conflict or intra-circuit conflict, but to reconsider a few specific case-bound facts.

The panel found that the gov’t failed to prove premeditation and so the murder was second as opposed to first degree.  The conclusion is that en banc was to reconsider the interpretation of these facts, which is improper.  The dissent argues that the gov’t never proved premeditation but only intent.  Premeditation is specific intent.  The gov’t did not present any of the evidence usually presented for premeditation, such as motive, demeanor, prior relationship, or whether the means was calculated.  The record is silent on such facts. There is no support for premeditation.

January 5, 2011

Ninth Circuit Opinions 01-04-2011

1.  US v. Harris No. 09-50113,

(1-4-11)(Wallace with Graber and Mills, Sr.
D.J., C.D. Ill).  This is an issue of waiver of appeal.  The defendant was charged with being a prohibited possessor of a firearm.  He pled under a plea agreement, where, among other agreements,  he stipulated to an enhancement for a crime of violence, and waived his right of appeal. The defendant later backed out of the “crime of violence” stipulation because of uncertainty in the case law, and he was permitted by the gov’t, documented in e-mail exchanges.  The court ruled against him, finding that his prior burglary was a crime of violence.  He appealed.  The 9th enforced the appeal waiver, and refused to exercise jurisdiction.  The 9th said that the language of waiver was plain, that the defendant pled knowingly and voluntarily, and that he took his chances with the argument before the district court.  This opinion has a good overview of the plea waiver, and acts as a warning to the broad enforcement of such waivers. E-mail exchanges with implicit understandings  will not trump explicit provisions.

2.  US v. Montes, No. 08-10539

(1-4-11)(Tallman with B. Fletcher and Rawlinson).  Allegations of juror misconduct ordinarily require an evidentiary hearing to determine the nature of misconduct, if any, and the reasonable probability it affected the jury’s verdict.  However, an evidentiary hearing is not mandated every time.  When, as here, the allegations can be decided without the benefit of a hearing, the court did not err in not holding one.  This was a prosecution for  marijuana distribution under 21 USC 848.  The evidence was overwhelming (not helped by the defendant’s statements and boasting to law enforcement that he was distributing marijuana).  During deliberation, a juror saw a headline from the SF Chronicle’s webpage that President Obama’s administration may go
easier on pot growers.  The juror discussed this in the jury room.  After this was raised post-verdict, the court had the juror affidavit, and the pleadings by the parties and argument.  The court felt that it couldn’t go into the juror’s deliberations and thought process under Fed R Evid 606(b). The court found that the headline and summary did not affect the verdict. The 9th agreed and affirmed.  The district court didn not have to hold the hearing and that a new trial was not required.  The evidence was presented via affidavit; a hearing would not have added anything because the deliberative process could not be questioned.  On the facts as presented, and under the test set out in Bayramoglu v. Estelle, 806 F.2d 880, 887 (9th Cir. 1986),  the misconduct did not affect the verdict.  The headline if anything helped the defendant.

3. Hamilton v. Brown, No. 09-15236

(1-4-11)(Tashima with Cowen and Silverman).  The 9th upheld the taking of blood samples for DNA identification under California’s DNA and Forensic Identification database statute.  The prisoner’s complaint failed to state a claim.

4. US v. Liquidators of European Federal Credit Bank, No. 09-10183

(1-4-11)(Graber with Callahan and Bea).  Take a look at this case if you are ever representing former prime ministers (here of the Ukraine) charged with money laundering.  This is the forfeiture issue that arose from the conviction.  US v. Lazarenko, 564 F.3d 1026(9th Cir), cert denied, 130 S. Ct. 491 (2009).  In this case, the gov’t seized accounts held by Bank of America.  The 9th reverses the seizure, finding that the assets were not listed in the charging papers, and that the gov’t was barred by res judicata,

January 4, 2011

Ninth Circuit Opinions Week of 01 03 2011

1. US v. Chaudry, No. 09-10381

(1-3-11)(Thomas with Wallace and Mills, Sr. D.J., C.D. Ill). The 9th holds that it lacks jurisdiction to review a district court’s decision NOT to impose a provisional sentence until the defendant was competent to be sentenced. The case concerns a defendant convicted of various tax fraud charges, but whom, after conviction, was found incompetent. The court committed the defendant to the custody of the AG under 18 USC 4241 to determine whether he was restorable. The gov’t had agreed, but then several months later, moved to have the court sentence the defendant provisionally under 4244. The latter would require him to be committed to mental health treatment in lieu of sentencing and considers the defendant competent, but mentally ill. The 9th had before it only the order for 4241 (there were subsequent determinations that were not appealed). In considering 4241, the 9th held that this was not a final order, nor order from release, that could be appealed. He was being held civilly at the time. The jurisdiction remained with the district court to sentence him when and if he was restored, or if he was found non-restorable, to determine whether he was dangerous or not.

2. US v. Contreras-Hernandez, No. 09-50009

(1-3-11)(Kelinfeld with Wardlaw and Callahan). The 9th held that a California conviction for solicitation to commit murder is a crime of violence under a Guidelines 2L1.2 enhancement (illegal reentry). The argument was that solicitation is a less serious and less culpable criminal mental state than the actual offense, or aiding and abetting. The defendant further argued that “solicitation” is not included in the Guidelines with examples of offenses that should be counted towards crime of violence such aiding and abetting, conspiracy, and attempts along with the designated offense. The 9th however countered that the Guidelines list was not exclusive, but were just examples, and could include other similar offenses. The 9th also looked to immigration, where solicitation was found to be violent. The Sixth Circuit found otherwise, holding solicitation was a lesser mental state, but the 9th joins the other circuits in rejecting that position.

3. US v. Anaya-Acosta, No. 09-50610

(1-3-11) (Schroeder, Tallman and Jarvey, D.J. S.D. Iowa)(per curiam). Defendant was here illegally, but was allowed to depart voluntarily and then was given a break by getting a departure control order (allowing him to remain here) pending a state trial for which he was a material witness for the state. What could go wrong? Well, defendant was subsequently discovered to possess a firearm and ammunition in violation of 18 USC 922(g)(5)(A)(illegal alien in possession of firearm and ammo).He argued though that he wasn’t an illegal alien because of the “deportation control order.” He was allowed to be here. That doesn’t change his status. He was here illegally, and was ordered to leave. This put him in the prohibited status. Moreover, the statute also includes the disjunctive phrase “under an order to deport voluntarily, whether or not he or she has left the United States.” He was also not under “official restraint” because he was not in custody.

Powered by WordPress