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April 29, 2011

Ninth Circuit Opinions 04-29-11

Filed under: California Appeals Attorney — Tags: , , , — fayarfa @ 1:14 pm

1.  US v. Nosal, No. 10-10038 (4-28-11)(Trott with O’Scannlain; dissent by Campbell, Senior DJ, Utah).  Defendants got information from their employer’s computer allegedly for the purpose of defrauding the employer and setting up a competing business.  This violates the Computer Fraud and Abuse Act, 18 USC 1030.  The statute states that someone who goes beyond set purposes of computer access is considered to have exceeded authorized access and thus violated the statute.  The 9th, in  LVRC Holdings LLC  v.  Bekka, 581 F.3d 1127 (9th Cir. 2009), seemed to interpret the statute as making irrelevant policy usage if the defendant had any access at all. If the defendant had any access, overstepping by itself could not be criminal.  The district court in adopting this reading dismissed counts.  The gov’t appealed, and argues, successfully, that the overstepping is relevant, it violates the statute’s clear language, and that it is a factor for consideration of specific intent.  The 9th joins other circuits in using the employer’s access policies and computer use policies to show possible intent.  If such policies could not be used, what use would they be?  The 9th states that if one steps over the use line, one could arguably have violated the statute. Dissenting, Judge Campbell thinks the statute is void for vagueness, and that statutory construction should limit it to those who are barred from any usage, rather than possible policy violation.  The statute was written in the new age of computer usage, and the majority’s interpretation is unrealistic as to how computer usage has developed at work.

2.  US v. Whitlock, No. 10-30124 (4-28-11)(Fisher with Graber and M. Smith).  In a SR case, the 9th holds that post-revocation sentencing recommendations made by the probation office must be disclosed unless the local rules reads otherwise or the district court so orders.  However, it is not a due process or equal protection violation if the recommendation is
not disclosed by local rule or the court orders it not disclosed so long as the factual determinations and underpinnings are disclosed.  Essentially, it would be nice if the recommendations were disclosed, but it is not a constitutional violation if they are not provided there is a local rule or the court orders, and the facts in the report are let out.  Here they were, and so the SR revocation sentence is affirmed.

3.Kemp v. Ryan, No. 08-99030 (Callahan with Rymer and Ikuta).  Thew 9th affirms denial of capital habeas.  The petitioner argued that his statements were a result of constitutional violations; that there was insufficient evidence to show the requisite mental state necessary for imposition of the death penalty, and that his constitutional rights were
violated  by the admission of other bad act evidence, by late disclosure by the state, and by the failure to voir dire on the issue.  Under AEDPA’s deferential standards, the 9th holds that the Arizona Supreme Court’s opinion affirming his conviction and sentence was not an unreasonable application of federal law nor an unreasonable determination of the facts.

April 28, 2011


Filed under: California Appeals Attorney — Tags: , , — fayarfa @ 9:14 am

No. 09-10397 Plaintiff-Appellee, D.C. No. v. ý 1:08-cr-00103- MICHAEL MAIER, AWI-1 Defendant-Appellant. þ

OPINION Appeal from the United States District Court for the Eastern District of California Anthony W. Ishii, Chief District Judge, Presiding Argued and Submitted September 10, 2010—San Francisco, California Filed April 27, 2011 Before: Betty B. Fletcher, Richard C. Tallman, and Johnnie B. Rawlinson, Circuit Judges. Opinion by Judge B. Fletcher 5443 COUNSEL Robert Warren Rainwater, Esquire, Eugene, Oregon, for defendant-appellant Michael Maier. David L. Gappa, Assistant U.S. Attorney, Fresno, California, for plaintiff-appellee United States of America.

OPINION B. FLETCHER, Circuit Judge: Defendant Michael Maier appeals his sentence of 210 months and a lifetime term of supervised release for 5446 UNITED STATES v. MAIER receipt/distribution of child pornography. We must decide, first, whether the district court correctly relied on the factors set forth in 18 U.S.C. § 3553(a) to guide its discretion in choosing which of two counts to dismiss when required to do so by the Double Jeopardy Clause; and second, whether the district court’s sentence was procedurally or substantively unreasonable. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm. I.

In March 2008, Immigration and Customs Enforcement (“ICE”) agents received a lead from internet service provider Yahoo! that an unknown individual had used a Yahoo! account and Yahoo! photo-sharing program, Flickr, to upload child pornography. Following an investigation, agents traced the source of the uploaded files to a dormitory room at the United States Naval Air Station at Lemoore, California. The room was occupied by defendant Michael Maier, a Navy police officer stationed at the base. A federal search warrant for the room was procured and executed on March 13, 2008. Upon entering Maier’s room, ICE agents found a laptop computer. Agent Ulysses Solorio, a forensic computer examiner, located a large volume of child pornography in an electronic folder associated with Google Hello, another photosharing program.1 The agents subsequently encountered Maier, who was not in his room when the search warrant was executed, elsewhere on the base. After the ICE agents informed him that he was a suspect in an ongoing federal investigation, Maier waived his Miranda rights and agreed to be interviewed.


April 26, 2011

Ninth Circuit Opinions 04-26-11

Filed under: California Appeals Attorney — Tags: , , — fayarfa @ 3:04 am

US v. Sandoval_Gonzalez, No. 09-50446 (4-25-11)(Reinhardt with Kozinski and Wardlaw). In a 1326 prosecution, is “derivative citizenship” an affirmative defense? No, answers the 9th. In this prosecution, the defendant, who was born in Mexico but whose father was an American citizen, cross-examined an agent about derivative citizenship. The gov’t argued that it was improper, and at jury instruction time, took up the court’s invitation to argue that there was a presumption that a person born abroad was an alien. Only one thing wrong with such a presumption: it was wrong. The gov’t had to prove alienage as an element. A presumption of alienage shifted the burden to the defendant. Derivative citizenship, moreover, is not an affirmative defense; it goes to proof of the alienage. The error was not harmless. However, the defendant does not get a Rule 29 acquittal.

Miller v. Oregon Board of Parole and Post-Prison Supervision, No. 07-36086 (4-25-11)(Burns, D.J. S.D, Calif., with Paez and Clifton). The 9th finds that an Oregon statute does indeed create a liberty interest in early eligibility for parole. Although there is a liberty interest, under Swarthout v. Cooke, 131 S. Ct. 859 (2011), a federal court only looks to whether procedural due process was followed rather than whether the decision as to eligibility was correct. Oregon gave procedural due process

April 13, 2011

Ninth Circuit Opinion 04-13-11

Filed under: California Appeals Attorney — Tags: , , — fayarfa @ 7:02 pm

US v. Pelisamen, No. 10-10022 (4-13-11)(Tashima with W. Fletcher and Berzon). The defendant was the administrator of his grandmother’s estate. It was sizable after a Northern Mariana Islands court ruled that property had been taken without compensation. It ballooned up to $4.4 million. The defendant, with his lawyer, took funds from the estatte before it was disbursed. He was convicted of wire fraud and honest services fraud under 18 USC 1346. After conviction, the Supremes held in Skilling, 130 S. Ct. 2896 (2010), that aside from kickbacks and bribery, the statute was unconstitutionally vague when it came to other conduct.

Reviewing for plain error, the 9th found the conviction for honest services as constitutionally infirm because fraud is neither kickbacks nor bribery. However, the other conviction, for wire fraud, is still valid. First, the jury returned a special verdict where it checked that the conviction was both under honest services and under wire fraud. Second, the evidence sufficient. Finally, the fairness and integrity of the verdict, under a plain error analysis, is not undermined. The 9th engages in an interesting discussion concerning the third prong of the plain error test in Olano, 507 US 725 (1993). This prong asks if substantial rights were affected.

The defendant argues that the burden of persuasion shifts from him to the gov’t when, as here, the error was not plain at the time because of a subsequent decision. The Second Circuit has held in Viola, 35 F.3d 37 (2d Cir. 1994), that such a shift takes place. Other circuits, notably the 10th and 11th and also the DC, have declined to follow Viola. The 9th has not weighed in, and sidesteps the issue here, finding that the defendant’s rights were not affected under either standard. This issue is worth keeping an eye on. The 9th finds the numerous otehr issues unconvincing and affirms the conviction.

Ninth Circuit Opinions 04-13-11

Filed under: California Chid Pornography Attorney — Tags: , , , — fayarfa @ 3:18 am

1. US vs. Apodaca, No. 09-50372 (4-12-11)(Cudahy [7th Cir.] with Wardlaw; concurrence by W. Fletcher). Lifetime supervision on one count of possession of child pornography was affirmed. However, it was affirmed grudgingly. The opinion rejects the substantive unreasonableness arguments put forth by defendant . The court did consider mitigation (indeed, the sentence of two years was a downward variance); and the court did consider distinctions between sex offenders. The 9th, and especially the concurrence by W. Fletcher, express uneasiness with the Guidelines for possession of child porn and the supervised release terms. It is simply too long and shows little distinctions between types of offenders. The opinion and concurrence provide arguments why lifetime supervised release terms may be inappropriate. However, the imposition here was not an abuse of discretion.

2. Roberts vs. Hartley, No. 10-15760 (Wallace with Kozinski and Silverman). In light of Swarthout vs. Cooke, 131 S. Ct. 859 (2011), the 9th reverses the granting of a habeas relief for misapplication of California’s “some evidence” standard for parole determinations. The Supremes in Swarthout made clear that the liberty interest created by state parole is determined by the state courts. A state liberty interest does not a federal liberty interest make. Federal review of due process is limited to procedural fairness. Here, the petitioner had procedural fairness. Federal courts can not decide whether there was a misapplication of state parole laws in order to grant habeas relief.

April 8, 2011

Ninth Circuit Opinions 04-08-11

1.  US vs. Delgado-Ramos, No. 09-50580 (4-7-11)(Per curiam with Rymer, Callahan, and Rymer; concurrence by Rymer).  Padilla vs. Kentucky, 130 S. Ct. 1473 (2010) requires defense counsel to advise on immigration consequences.  Shouldn’t a court, taking a plea under Fed. R. Crim. P. 11, have to inform the defendant of the immigration consequences?  Didn’t Padilla overrule prior 9th Cir precedent?  The 9th answers “no” and “no.” The defendant entered a 1326 plea before Padilla.  He now argues that he should have been informed by the court of the immigration consequences. Under a plain error review, the 9th finds that Padilla did not overturn US vs. Amador-Leal, 276 F.3d 511 (9th Cir. 2002).  Padilla focused on sixth amendment ineffectiveness of counsel.  As such, Padilla is different from the due process fairness analysis of a guilty plea.  Moreover, a court is focused on the plea to the charge; the court cannot control another agency’s decision.  The court must advise of the direct consequences, but not all collateral consequences.  As such, a court is not required to advise of immigration consequences.  Concurring, Rymer writes that defendant would be unable to prove prejudice under any analysis.

2.  US vs. Greer, No. 09-10095 (4-7-11)(Bybee with Schroeder; dissent by Panner, Sr. D.J., D. Ore.)  The defendant was a Las Vegas truck driver who delivered bales of shredded  paper to be recycled.  One problem:  some papers (about 50 lbs worth) hadn’t been recycled.  They contained information from casinos’ customers –  really really confidential stuff. The defendant later testified he thought he “was retiring from trucking that day” because he could get money for them.  He then tried to get the casinos to pay him for the recovery.  The gov’t charged him with extortion (his efforts make amusing reading).  He was convicted of extortion under the Hobbs Act and of racketeering.  On appeal, he argues that the gov’t improperly asked him on cross-examination if gov’t witnesses were lying. The 9th, under plain error review, sidesteps, saying  that the error wasn’t so clear that the court should have recognized it without an objection. The tougher issue was with the jury instructions.  The court gave a general instruction that the gov’t doesn’t have to prove the defendant knew his actions were unlawful.  This was paired up with an element’s instruction that stated that the defendant acted with the intent to obtain money he knew he was not entitled to receive.  Again under plain error review, the 9th determined that there wasn’t a risk of confusion.  The general instruction was the for the “ignorance of the law” while the element mens rea was for knowing what the acts were.  Moreover, no circuit has held that specific intent was required and one circuit, the 6th, held that it was not.  The 9th defers ruling on that issue; under plain error, there wasn’t error.  Dissenting, Panner argues that there was confusion, and error, because the knowing/not knowing clashed.

3.  US vs. Ewing, No. 10-50131 (4-7-11)(Ripple (7th Cir.) with Pregerson and Graber).  The 9th upholds a search, finding that there was probable cause, under a totality of circumstances, to search a car and the contraband (counterfeit bills) within it.  Here, the police pulled a car over for expired tags.  Approaching the car, the officer asked if anyone was on probation and parole.  One passenger said “yes” and when the officer “conversed” with him, the officer noticed folded bills stuffed in the weather-stripping of the window.  Why, wonder the officer, was there money sticking out the window?  No one said it was there money.  The officer noted that the serial numbers on the 20’s were the same.  Later, one of the passengers said that defendant had been making counterfeit bills and described the circumstances. In searching the car, with consent of the owner, counterfeiting equipment and material were found.  The district court upheld the search.  The 9th did likewise.  First, the 9th did find that the gov’t had waived the standing issue (the defendant was not the owner of the car).  Second, the 9th held that the officer had probable cause to search the car under the circumstances: the passengers appeared nervous; the officer saw money in the weather-stripping, it was an odd place to store bills, and the officer believed that it was related to drug trafficking, and that one passenger appeared under the influence of a stimulant, and he was on parole.  Since the officer had probable cause to search the car, he could search the contents, which included unfolding the money (revealing the identical serial numbers).

April 7, 2011

Ninth Circuit Opinion 04-07-11

Filed under: California Appeals Attorney — Tags: , , — fayarfa @ 8:20 am

Pearson vs. Muntz, No. 08-55728 (4-5-11)(Berzon with Reinhardt and M. Smith). Can a federal court examine a state’s (actually California Governor Schwarzenegger’s decision) to deny parole to an inmate because of some evidence that the crime was especially callous. The district court had granted the petition but the 9th now reversed. The 9th wrote that it was compelled to reverse because federal examination of a parolee’s due process rights, under the recent Supreme Court’s decision in Swarthout vs. Cooke, 131 S. Ct. 859 (2011)(per curiam), is limited to whether the parolee had the chance to be heard, examined the evidence in advance, and received notification. Due process review does not include looking at the particular quantum of evidence supporting the decision independent of any state law imposed requirement. Once procedures are provided, the due process inquiry ends.

April 5, 2011

Ninth Circuit Opinion 04-05-11

Samayoa vs. Ayers, No. 09-99001 (4-4-11)(Silverman with Kozinski; dissent by Reinhardt).  An opinion, especially in habeas, that starts with the gruesome recounting of the facts usually does not bode well for the petitioner; it especially doesn’t bode well when the issue is IAC at sentencing, with AEDPA deference.  Here, the petitioner brutally murdered a mother and her two year old daughter during a burglary.  He also had a history of violent acts.

At trial, and sentencing, the theme was brain damage, and mental illness, resulting in diminished capacity.  A few family members testified and a few guards about his behavior in prison.  In post-conviction, investigation uncovered a physically abusive, sexually abusive, violent, and deprived childhood.  Trial counsel did no family investigation.  The defense experts used moreover were arguably incompetent (inventing non-existent psychological conditions, making simple math errors in calculations, and even mislabeling an upside-down diagram of the brain).

The state courts denied relief; the federal court accepted ineffectiveness, but found no prejudice given the brutality of the crime and further aggravators.  The 9th affirms.  The opinion goes through the evidence, and stresses that under AEDPA, deference is afforded to the state court’s determination.  Such a decision was not unreasonable.  The crime’s ugliness, to the 9th, seemed paramount.  The best chance to save the petitioner was the brain damage, and the jury and state courts were not persuaded.  Neither was the 9th.  In dissent, Reinhardt railed against the incompetence of counsel and defense experts.  Defense counsel had no excuse not to investigate the petitioner’s upbringing, and family history.  The performance of counsel, and the deficient experts, doomed him.  To Reinhardt, actual evidence of years of abuse and a horrific childhood would be more persuasive than weak evidence of brain damage and equivocal testimony by family and guards.

April 4, 2011

Ninth Circuit Opinions 04-04-11

Filed under: California Appeals Attorney — Tags: , , , , — fayarfa @ 2:20 pm

1.  US vs. Fasthorse, No. 10-30093 (4-1-11)(M. Smith with Graeber and Fisher).  The defendant appeals a conviction for sexual abuse under 18 USC 2242(2)(B).  The defendant argues there is insufficient evidence and the sentence of 130 months is unreasonable.  The 9th affirms both conviction and sentence.  The victim in the case admits drinking and smoking medical marijuana during the night.  When she woke up, she testified, the defendant was on top of her, having sex.  The defendant argued consent.  The evidence revolved around credibility, and the jury found the victim credible. “Waking up,” reasoned the 9th, implies no consent.  The sentence was within the guidelines, and the court supported the sentence with appropriate reasons.

2.  Cooper v. Neven, No. 08-16973 (4-1-11)(D. Nelson with Hug and McKeown). The 9th considers this habeas appeal.  The 9th remands the Brady and Napue claims for consideration because the denial was not on independent state grounds, but on federal. The other claims were denied.

3.  Wilson v. Knowles, No. 07-17318 (4-1-11)(Noonan with Silverman; dissent by Kozinski).  This is an amended opinion regarding an Apprendi claim.  The state court found facts as to a prior state conviction related to injury. The 9th holds this violates Apprendi.  Kozinski’s dissent goes to the lack of a Supreme court case precisely on point as to assessing facts in the prior state conviction.  He would find that AEDPA requires deference, and so would deny the claim.

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