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February 23, 2011

Ninth Circuit Opinions 02-23-11

US v. Watson, No. 09-50666 (2-23-11)(M. Smith with Rawlinson and Jones, D.J., D, Nev.) It is well settled that if a defendant on SR takes off, the SR violation petition is tolled. This is the fugitive status tolling of the term. However, if the federal authorities get wind of his whereabouts, then the term starts to run again. Here, the defendant disappeared in 1995 to the wilds of Minnesota and eventually was arrested in Texas in 2009. Did his eleven (11) state arrests in Minnesota alert the feds? No, said the district court, and the 9th agreed. The arrests were all for state charges, and the federal law enforcement or federal courts had no constructive or imputed knowledge. The arrest or knowledge had to be traced to the federal authorities.

US v. Hernandez-Guerrero, No. 10-50096 (2-23-11)(Clifton with McKeown and W. Fletcher). This concerns “dates” and when a 1326 starts counting. The defendant here was convicted of a state crime and deported on June 7,1995. Upon his arrest in 2009, he said that he reentered on June 29, 1995. Should his offense start running when he reentered in 1995, or when he was “found in” in 2009? The difference is that the first (1995) would mean his state conviction counted for criminal history; while the 2009 date would mean that it was stale. The district court used the earlier date. The 9th decides to clarify its precedent on the operative date. The 9th looks at 1326 and notes that it has both reenter and found in language. The two do not have to be exclusive. The reentry starts the offense; the found in means that each day can be a new offense (which matters if the law changes and the penalties increase). The 9th makes this distinction, and then says that the context of each case will determine relevancy. As for the date in question, it was the result of the defendant’s statement to the immigration officer. It was used in the PSR. Since it was not challenged, the court could rely on it for calculations purposes.

US v. Lynn, No. 09-10242 (2-23-11)(Gould with Schroeder and Thomas). Another child porn case presents two interesting issues. First, arising in a sufficiency of evidence challenge, is whether interstate transportation is satisfied solely if the photos or video could be proved to have been shot in a different state. Second, whether there was double jeopardy here for receipt and possession of the same contraband, This case arose from a Limewire investigation, involving file sharing and swapping. The photos/video were found in the defendant’s laptop, having been downloaded into a folder and moved to a “saved” folder. The evidence was that one victim was videoed in Georgia and the other in Washington. The argument, aside from lack of knowledge or intent, was that the video was originally produced on one media (say VHS) and then changed to digital. The transformation had to be proved to have crossed state lines. The 9th rejected this argument, holding that the statute, and congressional intent, was that interstate commenced from point of origin, and that the list of types of media were examples and not limited. As for double jeopardy, the gov’t can charge receipt and possession as two distinct crimes, but the gov’t has to show the factual basis, and the change, or use made of the contraband once it was received, and then possession was of a different nature or media. Getting the contraband and keeping it in a file won’t cut it. The leading case is Schales, 546 F.3d at 978. Lastly, the vulnerable victim adjustment was not error given the age of some of the victims (infants and toddlers).

February 21, 2011

Conviction Overturned in Child Molestation Case

California Sex Crimes Defense Lawyer Fay Arfa achieves a Conviction Overturned in Child Molestation Case

A jury convicted defendant Kamal Ahmad Khan of two counts of lewd acts on a child under the age of 14 (Pen. Code, § 288, subd. (a)), but failed to reach a verdict on a third count of the same offense (which the court subsequently dismissed on the People‟s motion).1 The jury found true the special allegation defendant committed these offenses against more than one victim. (§ 1203.066, subd. (a)(7).) The court sentenced defendant to eight years in prison.

On appeal, defendant contends the court‟s denial of his continuance motion deprived him “of due process, a fair trial, the right to prepare and present a defense, and the effective assistance of counsel” and denied him his constitutional rights under the Fifth and Sixth Amendments. Defendant contends his trial counsel “needed to investigate [D.M.‟s] prior allegations to prove that [she] made false sexual allegations in the past and that her accusations against [him] were also false.” He argues the question of his guilt “depended solely on the jury‟s determination of the credibility of” D.M. and daughter.

Daughter’s Testimony
Daughter testified that when she was in the fourth grade (and around age 11), defendant touched her breasts and tummy. Defendant had never touched her vagina, however. Daughter then testified she could not recall if he ever touched her vagina. During a lengthy stretch of direct examination (12 reporters‟ transcript pages), daughter variously denied or could not recall whether defendant ever touched her vagina or whether she ever told investigators he had done so.

Daughter then changed her story and testified that when she was in the fourth or fifth grade, defendant touched her vagina with his hand under her clothes as she lay on her bed. This happened “more than two or three times.” She told defendant to stop and said it was hurting her. He told her not to tell anyone. Daughter did not tell anyone about defendant‟s behavior because she did not want to get her father in trouble or impair her parents‟ marital relationship.


February 17, 2011

Ninth Circuit Opinions 02-15-11

1. Harrison v. Gillespie, No. 08-16602 (2-15-11)(en banc: M. Smith;
Kozinski concurrence; Thomas dissent and Reinhardt dissent). The jury said it was hung on the penalty phase of a capital trial. It was pretty clear in the notes and the proposed verdict forms that death was off the table, and the choices were between LWOP, LWP, or a term of years. Before the jury was discharged, the defendant asked that the jury be polled. The trial judge declined and discharged the jury. The petitioner then argued that the death penalty was barred by double jeopardy. Sitting en banc, the 9th concluded that the trial judge neither abused its discretion nor subjected petitioner to double jeopardy in discharging the jury because of the deadlock. The 9th held that there was not a constitutional right to inquire into the possibility of a preliminary decision against the death penalty. Allowing the court to do so would risk coercion. Moreover, preliminary jury votes are that: preliminary. The verdict is not final until stated in open court. A refusal to poll by the court fell within the court’s sound discretion. Concurring, Kozinski argues that the petitioner could have, and should have, asked for a special verdict.

Dissenting, Thomas (joined by Reinhardt, W. Fletcher, Fisher, and Berzon) argue that the judge acted summarily in discharging the jury, and that by all indications, the jury had reached an acquittal on death, and should have been polled. State statutes allowed for various sentences, as did the capital structure, and the jury seemed to have decided on lesser sentences, and split there. The judge’s actions in declaring a mistrial were not manifestly necessary, and violated double jeopardy. The judge should have polled. The polling would not have lead to a new rule, or right, but under these circumstances, was required. Reinhardt, also dissenting, emphasizes
the clear violation of manifest necessity, and the result is the more
egregious given the death penalty. Death is different.

2. US v. Valdovinos-Mendez, No. 09-50532 (2-15-11)(Jarvey, D.J., S.D. Iowawith Schroeder and Tallman). In a 1326 illegal reentry case, the 9th acknowledges that the admission of a “non-existence of record” (CNR) did violate the constitutional right to confrontation. However, the error was harmless as the agent had testified that the A-file was bereft of any indication requesting admission, and the agent was subject to cross examination. This was also not an error under the best evidence rule, which goes to admitted contents of writings, and not records of missing documents. As for the prior conviction for assault with a deadly weapon or by force likely to produce great bodily injury under California law, that qualifies as a “crime of violence.” See US v. Grajeda, 581 F.3d 1186 (9th Cir. 2009). Lastly, Almendarez-Torres is still good law as to prior convictions.

3. Fairbank v. Ayers, No. 08-99018 (2-15-11)(Thomas with Schroeder and Gould). The 9th affirms denial of a habeas capital petition. The 9th found no IAC in the lack of mitigation investigation claims. strategic choices were made by defense counsel. The 9th also deferred to the state court’s determination that the prosecutorial misconduct claim was procedurally. There was also a lack of state involvement in the Massiah claim.

February 9, 2011

Ninth Circuit Opinionsweek of 02-09-11

US v. Krupa, No. 09-10396 (2-7-11)

(Callahan with Wolle, Sr. D.J., S.D. Iowa; dissent by Berzon). Does a single photo of a nude teenager from ”” on a computer give rise to probable cause to search a computer? The 9th finds it would, when taken in context of the surroundings — a distraught mother wondering where her kids were, a house on a military base where the father of the kids is abroad, and the kids in the care of another male adult, with the house in disarray and 15 computers. These factors gave rise to a suspicion that justified a search warrant, which found more minor pornography. Dissenting, Berzon takes the majority to task for affirming the search warrant. Probable cause, Berzon notes, is not some “cloud” that follows a person around, and a person’s idiosyncrasies, or quirks, should not trigger a search. Here, the single photo of a teen that might have been around 17, and the name of a web site, The other factors such as the messiness, absence of father (although a note stating that the kids were in the care of the defendant, and the number of computers does not lead to a conclusion that porn was contained in the computers. Berzon would also find that Leon’s good-faith exception also did not apply as the affidavit was extremely bare-bones.

US v. Fox, No. 08-30445 (2-7-11)

(O’Scannlain with Tallman and Moskowitz, D.J., S.D. Ca). In Dillon, the Supremes overruled the 9th’s decision in US v. Hicks, 472 F.3d 1167 (9th Cir. 2007), which allowed a court to treat the Guidelines as advisory in a retroactive sentence modification proceeding. Dillon held that the court in resentencing was bound by the Sentencing Comm’n’s Policy Statement which mandated that a sentence modification proceeding may not reduce the sentence below the amended Guideline range. This case had reduced the sentence below the retroactive amendmended Guideline range, and the 9th had taken it en banc. In light of Dillon, however, it was sent back to a three judge panel for consideration of the challenges to the policy statement. The defendant argued that the policy statement failed to comply with the procedural requirements for a Guideline amendment. In other words, since the policy statement was like a Guideline, operated like a Guideline, and had the force of a Guideline (cf “walk like a duck…..”), it was a de facto Guidelines, and so it had to follow certain procedural steps for notice and comment. The 9th rejected this, finding that the Supremes had pretty much foreclosed the argument, and that the Guideline-light argument failed because policy statements were meant to interpret, which is what 1B1.10 did here.

February 1, 2011

Ninth Circuit Opinions week of 01-28-11

1. US v. Munoz-Camarena, No. 09-50088 (1-28-11)(per curiam — B. Fletcher, Pregerson, Graber). The defendant had three prior California convictions for simple possession. Under Carachuri-Rosendo v. Holder, 130 S. Ct 2577 (2010), the second or subsequent prior convictions do not qualify as aggravated felonies when the state convictions are not based on the fact of a prior conviction. That was the situation here. The gov’t however argued that a remand was unnecessary because any error was harmless. The sentencing court had stated that it was going to sentence the defendant to 65 months regardless of whether the felony was aggravated under the guidelines, or the enhancement was 4 or 8 levels. The 9th, however, said that the guidelines must be calculated correctly, and a different calculation may have influenced the sentence. The court for example would have to explain the extent of any variance, and a “one size fits all” explanation does not suffice. There is strong language about the need for a remand.

2. US v. Lichtenberg, No. 09-10191 (1-27-11)(Hawkins with McKeown and Rawlinson). An elderly client in Louisiana hired the defendant to complete a real estate transaction in Hawaii. The client gave explicit instructions as to the funds from the sale, paying the defendant a sum for his assistance. the defendant completed the sale, but instead of wiring the money to the client, the funds instead were wired to Indonesia, and put in the defendant’s banks. After a lengthy prosecution and investigation, about half the funds (about $170,000) were still missing. The court sentenced the defendant to 112 months, above the guidelines range, with a number of factors including the continued withdrawal of interest by the defendant’s wife from the foreign bank. On appeal, the 9th counted as criminal history a prior state violation of protective order, finding that it was not similar to the excluded conviction, under the guidelines, of contempt of court. The breach of a Hawaiian protective order is not similar to contempt of court, and so it counts as criminal history. The focus of the protective order was to protect a victim (it arose from a domestic violence incidents with ex-wife); contempt of court is aimed at the process. The 9th looks at the actual punishment and the types of conduct. As for the sentence, it was deemed reasonable and the explanation sufficient.

3. US v. Leyva-Martinez, No. 10-50269 (per curiam: Goodwin, Rymer and Graber). The defendnat, in a 1326 case, raised the Almendarez-Torres claim that his prior must be proved. He argued that Nijhawan v. Holder, 129 S. Ct 767 (2009) overruled Almendarez-Torres. The 9th expressed some skepticism, since Almendarez-Torres was not even mentioned in Nijhawan, and so granted summary affirmance. However, while the circuit courts are rubber stamping dismissals on Alemdarez-Torres, commentators are wondering whetehr the Court is ready to reconsider.

4. US v. Potter, No. 09-30266 (1-26-11)(per curiam with Graber, M. Smith, and Benitez, D.J for the S.D. Ca). The 9th rejects a constitutional challenge to a conviction for possession of a firearm in furtehrane of drug trafficking. Thedefendant argues that because the weapon wa sin his home, he had teh right to possess it. The 9th agrees that in Heller, the Supremes held that the right to bear arms is a personal right, rather than a collective or State right. However, the 9th scoffs at the proposition that the second amendmentment guarnatees a right to use a weapon for drug sales. Heller recognizes the right for “lawful” purposes. Drug trafficking is not a lawful purpose.


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