The Criminal Docket


February 2006 

Volume 1, Number 2

In This Issue:

     United States Supreme Court Decisions
United States Supreme Court Reviews Granted
     United States Court of Appeals (9th Circuit) Decisions

United State Supreme Court Decisions 
Rice v. Collins, No 04-52 (1/18/06) (S. Ct.) (Kennedy; concurrence by Breyer with Souter joining).  Batson; Peremptory Challenges.  In this state habeas case, the state court had rejected a Batson challenge, crediting the prosecutor's race-neutral explanations for striking a juror; the California Court of Appeal affirmed, and the district court dismissed the habeas petition.  The Ninth Circuit reversed, concluding that the state court's affirmance was based on an unreasonable factual determination, and the Supreme Court reversed the Ninth Circuit.  Under AEDPA, a federal habeas court can only grant a petition based on a factual determination if the state court's conclusion was "an unreasonable determination of the facts."  Here, although the Ninth Circuit recited the correct standard, the Court held that it misapplied the standard when it applied a set of "debatable inferences" to set aside the trial court's credibility finding.  In particular, the Court found no basis for finding the state court's conclusion to be unreasonable in the facts that the prosecutor (1) gave a mistaken description of another juror, (2) relied on the challenged juror's gender, and (3) believed that because the challenged juror was young and single with no ties to the community, she might be too tolerant of drug crime.  As to the gender issue, the Court noted that this was an improper basis for a strike but noted that the trial court expressly did not rely on that explanation and the prosecutor provided a number of other permissible and plausible race-neutral reasons, namely that the juror had rolled her eyes in response to a question from the judge and the facts that she was young, single, and rootless and therefore might be overly tolerant.  As to the "young and rootless" explanation, the Court held that the prosecutor was not bound by the juror's averments during voir dire that she believed the crime should be illegal and could be impartial, and could plausibly continue to have concerns about the juror's willingness to impose a lengthy sentence on a small-scale drug offender.  The Court concluded that, at most, the Ninth Circuit's concerns suggest only a reason to question the prosecutor's credibility, but the fact that reasonable minds might differ does not suffice on habeas review to supersede the trial court's credibility determination.
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United State Supreme Court Reviews Granted: 
No cases to report this issue.

U.S. Court of Appeals (9th Circuit):
United States v. Albino
Bradley v. Henry
United States v. Menyweather
United States v. Hernandez-Hernandez
United States v. Speelman
United States v. Ladwig
Burnett v. Lampert, Oregon Board of Parole and Post Prison Opinion Supervision
United States v. Fifield
United States v. Southwell
United States v. Adams
United States v. Nobriga
Santos v. Guam
Williams v. Runnels
United States v. Teeples
United States v. Alferahin
United States v. Allen
Mancebo v. Adams
United States v. Cantrell
Gonzales v. Oregon
United States v. Plouffe
United States v. Guerrero-Velasquez
Kenna v. U.S. District Court

United States v. Albino, No. 05-10146 (12/15/05) (D. Haw.) (Brunetti, Kozinski, Silverman) (Per Curiam).  Sentencing: Mandatory Minimum Offenses.  The Ninth Circuit held that the defendant's 10-year mandatory minimum sentence for growing 1000 or more marijuana plants violated neither the Fifth nor the Eighth Amendment, rejecting the defendant's challenges based on the fact that 21 U.S.C. 841(b)(1)(A)(vii) classifies 1000 or more marijuana plants, regardless of weight, as equal to 1000 or more kilograms of marijuana.  The court noted that it had previously rejected the same Fifth Amendment argument in United States v. Motz, 936 F.2d 1021, 1025 (9th Cir. 1991), and United States v. Belden, 957 F.2d 671, 676 (9th Cir. 1992).  As to the Eight Amendment claim, the court held that the sentence was not grossly disproportionate because the defendant received the statutory minimum sentence and Congress is afforded broad deference in establishing criminal penalties.
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Bradley v. Henry, No. 04-15919 (12/15/05).  The court ordered rehearing en banc in this case involving the defendant's right to be present at a critical stage of the proceedings.  The panel opinion at 413 F.3d 961 (6/22/05) cannot be cited as precedent.  Here's the previous squib and link to the panel opinion:
Bradley v. Henry, No. 04-15919 (6/22/05) (N.D. Cal.) (Noonan; concurrence by Ferguson; dissent by Rymer).  Due Process Claims. The majority reversed the denial of a habeas petition based on defendant's absence at a critical stage of the proceedings.  Before trial, the trial court held an in camera hearing with the prosecutors and defense counsel regarding defense counsel's motion to withdraw as counsel. The majority determined that the in camera conference was a critical stage of the proceedings; while acknowledging that the defendant did not have an absolute right to choose her counsel, the majority concluded she still should have had an opportunity to speak to the issue.  The majority noted a possible conflict between Supreme Court authority and the 9th Circuit's recent en banc opinion in Cambell v. Rice regarding whether a defendant must show prejudice, but did not resolve the issue because it concluded that the defendant had shown prejudice in the form of an acrimonious relationship with her subsequent substituted counsel. 
Judge Ferguson concurred to write that the defendant was not only deprived of due process but of her Sixth Amendment right to select counsel of her choice.  Judge Rymer dissented on the ground that the California Court of Appeal's decision was not contrary to clearly established federal law because Supreme Court authority establishes that a defendant is not deprived of due process when she is excluded from a hearing bearing no "substantial relationship to to her opportunity to better defend herself" and that a defendant is not necessarily denied her right to counsel when represented by effective counsel, even if not counsel of choice.
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United States v. Menyweather, No. 03-50496 (12/16/05) (C.D. Cal.) (Graber with Hawkins, dissent Kleinfeld).  Booker: Reasonableness; Sentencing: Departures: Diminished Capacity; Sentencing: Departures: Family Circumstances.  Former USAO employee pled guilty to mail fraud based on her use of government credit cards for unauthorized personal purchases of between $350,000 and $500,000.  The Ninth Circuit affirmed the defendant's probationary sentence re-imposed by Judge Real after two remands pursuant to successful government appeals (our office was recused and did not handle the prosecution).  The district court, pre-Booker, departed downward eight levels based on mental condition, diminished capacity, and extraordinary family circumstances, and sentenced the defendant to probation where the guideline range was 21 to 27 months.  First, the Ninth Circuit held that because Booker "excised" the mandatory de novo review of departures, review would be under the pre-PROTECT Act standard of abuse of discretion.  The circuit held that the district court did not abuse its discretion in departing downward for diminished capacity where the district court found that the defendant suffers from post-traumatic stress disorder and that that disorder was linked to her "compulsive acquisition behavior."  The court also found no abuse of discretion in the court's downward departure based on family circumstances based on the district court's findings that the defendant had a special relationship with her daughter, who had already lost one parent and had never been without her sole surviving parent, and in any event found any error to be harmless because the record is clear that the district court could and would impose the same sentence under the now-advisory guidelines scheme. 
Finally, in their first foray into the "reasonableness" realm, the Ninth Circuit held the sentence to be reasonable.  The court found that the district court's explanation of the reasons for the departures was sufficient and also compared the extent of the departures to other published opinions involving diminished capacity and family circumstances departures.   
In dissent, Judge Kleinfeld noted that the majority's application of abuse of discretion review amounted to no review. He stated his belief that the sentence was inadequate to reflect the seriousness of the offense, afford adequate deterrence, protect the public, give due consideration to the guidelines, or provide just punishment.  He also expressed considerable frustration with Judge Real's insistence on imposing the same sentence after repeated remands, indicating that such insistence could only be explained by an apparent belief that certain sympathetic defendants, such as women or mothers, should not go to prison.  Judge Kleinfeld observed that "our review authority may be more rather than less important than it was before, to prevent idiosyncracy from altogether overtaking sentencing consistency.  A sentence like the one in this case is just the sort of red flag that makes legislators wonder whether the courts need mandatory minimum sentences to assure protection of the public."
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United States v. Hernandez-Hernandez, No. 02-30429 (12/16/05) (E.D. Wash.) (Tallman, with Gould; Kleinfeld, concurring in part, dissenting in part).  Sentencing: Enhancements; Sentencing: Categorical Approach; Apprendi: Sentencing Guideline Claims.  The court upheld the district court's application of the guidelines in this 1326 case but remanded for resentencing pursuant to Ameline.  After once again affirming that prior convictions need not be charged or proven to a jury beyond a reasonable doubt, the court  held that the defendant's prior felony conviction for false imprisonment was a "crime of violence" for purposes of USSG 2L1.2(b)(1)(A)(ii).  The court held that under the modified categorical approach the district court properly relied on the stipulated facts contained in a that the defendant had filed in the California court that served as the factual basis for the guilty plea and clearly established that the crime involved violence.  The majority held that it saw no appreciable difference between relying on such a motion and relying on a plea agreement or transcript of a plea colloquy and did not find merit in the dissent's argument that defense counsel, not defendant personally, stipulated to the facts in the motion.  The court also upheld the inclusion of one point in the defendant's criminal history calculation for a prior misdemeanor conviction for "threats to do harm" because that crime is not similar to the crime of "disorderly conduct," which the guidelines provide should not be counted in the criminal history calculation.  Had the crime been the same as disorderly conduct, however, the court would have held the inclusion to be improper because the defendant's 90-day sentence, with 87 days suspended, does not count as a prior sentence of imprisonment of at least 30 days under USSG 4A1.2(c)(1)(A).  (On this point, the court distinguished United States v. Williams, 291 F.3d 1180, 1195 (9th Cir. 2002), on the ground that there the sentence was "totally suspended" -- please don't ask me to explain how that makes any sense). 

Judge Kleinfeld concurred in the opinion except for the portion dealing with the modified categorical approach.  He noted that the defendant never personally acknowledged the truth of the facts set out in the motion and that therefore the stipulation did not "unequivocally establish" the facts.
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United States v. Speelman, No. 04-30067 (12/16/05) (D. Mont.) (Alarcon, with Schroeder, Kleinfeld).  Appeals: Waiver: Plea Agreements; Sentencing: Relevant Conduct.  The court here too affirmed the sentencing guidelines calculations but remanded pursuant to Ameline.  The court held that an appeal waiver did not bar the appeal because the language of the plea agreement that the defendant waived his "right to contest the sentence in any post-conviction proceeding" was ambiguous as to whether it was a waiver of the right to direct appeal.  On the merits, the court upheld the district court's reliance on dismissed conduct, citing United States v. Wright, 373 F.3d 935 (9th Cir. 2004), and holding that it was irrelevant whether the court lacked jurisdiction over the dismissed conduct.  The court also held there was no impermissible double counting in imposing an enhancement under USSG 2A3.1(b)(2)(A) based on the victim being less than 12, where the crime charged was aggravated sexual abuse of a child under 12 in violation of 18 USC 2241, because the same guideline applies to 18 USC 2242 (simple sexual assault), which does not require that the victim be under 12.
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United States v. Ladwig, CA No. 04-30393 (12/27/05) (E.D. Wash.) (Gould, Berzon, and Schwarzer).  The Court held that a state conviction for making a harassing phonecall constituted a predicate offense under the Armed Career Criminal Act. 
The defendant, one Craig Allen Ladwig, pled guilty to being a felon in possession of a firearm.  The district court found that Ladwig was an armed career criminal based in part upon a felony conviction under Washington state law for making a harassing phone call.  The Court of Appeals applied the categorical approach, under which the reviewing court looks "only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions."  Noting that the applicable statute limited felony convictions to phone calls in which the defendant threatened to kill, the Court concluded that "the minimum elements of this statutory provision necessarily include threatened use of violence," and thus satisfied the requirements of the ACCA.  The defendant argued that the State of Washington did not count harassing phone calls among its violent offenses, but the Ninth Circuit deemed this irrelevant, since the question is one of federal, not state, law.  Although neither party raised the issue, the Court of Appeals went out of its way to hold that Booker posed no constitutional bar to applying ACCA to the defendant.  Enhancements based on criminal convictions, the Court stressed, do not violate the Sixth Amendment.
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Burnett v. Lampert, Oregon Board of Parole and Post Prison Opinion Supervision, No. 04-35305 (12/27/05) (District of Oregon), (Fisher, Gould and Bea). The Ninth Circuit today considered whether a parolee's habeas challenge to a past period of incarceration is moot when he has been reimprisoned on a parole violation.  The answer is yes, the action is moot.
The plaintiff was convicted in state court and sentenced to a lengthy prison term.  The state parole board twice deferred the plaintiff's release date out of concern that his emotional condition made him a danger to the community.  The plaintiff challenged the board's ruling by way of parallel state and federal habeas petitions, arguing that the delay was unconstitutional.  After the state trial court granted the plaintiff relief, he was released on parole, only to violate the conditions of his release a few months later.  At that point, the district court took up the plaintiff's federal habeas petition and deemed it moot.  The plaintiff maintained on appeal that the petition was not moot, since the Ninth Circuit could reduce his revocation sentence by the length of time during which the parole board illegally deferred his release -- roughly 3 years and 8 months.  
The Court of Appeals rejected this argument, drawing a sharp distinction between the prior period of imprisonment the plaintiff challenged and the parole revocation term he was then serving.  "[T]he two periods of time are not fungible," the Court explained, because the plaintiff was imprisoned for "violat[ing] the terms of his parole after he was released" and not as a result of the board's delay in releasing him.  The plaintiff did not argue that he was currently being held in illegal custody, so the Court of Appeals had no cognizable habeas claim before it.
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United States v. Fifield, CA No. 04-30299 (12/30/05) (District of Montana) (Berzon, Gould, Schwarzer):  Exactly one week after being given a suspended state sentence for assault with a weapon, the defendant's probation officer searched his house and found six guns, meth, marijuana, and a drug lab.  He also tested positive for drugs.  The defendant was promptly violated on his probationary sentence and convicted of a state drug offense, resulting in a long state sentence.  Based on the guns seized from his residence, defendant was separately indicted on federal charges of being a felon and drug user in possession of a firearm.  The district court sentenced him to 54 months and imposed the prison term consecutively to the state sentence. 
The defendant maintained on appeal that the district court violated Rule 32 by failing to give him notice that it was considering a federal sentence consecutive to the state term.  The Ninth Circuit, in an opinion by Judge Berzon, disagreed.  The Court reasoned that Rule 32 requires that a sentencing court give notice of a consecutive sentence only if it constitutes a departure from the Guidelines.  Because the applicable Guideline provision, 5G1.3(c), authorizes a sentencing court to impose a concurrent or consecutive sentence "to achieve a reasonable punishment," the consecutive sentence did not amount to an upward departure.  Nor did Rule 32 impliedly require notice here, the Court of Appeals explained, since the Guidelines expressly contemplated a consecutive term.  The defendant argued that the district court improperly failed to state its reasons for imposing a consecutive, as opposed to a concurrent, sentence, but the Ninth Circuit rejected the argument.  The governing statute, 18 USC 3584, required only that sentencing courts consider the 3553(a) factors, and the Circuit had previously held that a sentencing court "need not specifically justify the choice between concurrent and consecutive sentences."  The district court touched on 3553(a) factors in its explanation, and that was all the statutes required. The Court also rejected the defendant's Sixth Amendment challenge to the consecutive terms, explaining that section 3584 does not require a sentencing court to find any particular facts, but simply channels its discretion.  After rejecting these theories, the Court of Appeals remanded under Ameline. 
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United States v. Southwell, CA No. 04-30521 (12/30/05) (E.D. Wash.) (Alarcon, Kozinski, Kleinfeld):  The defendant was charged with arson.  At trial, he mounted an insanity defense.  The district court issued a verdict form that gave the jury the option of finding the defendant guilty, not guilty, or not guilty only by reason of insanity.  Along with this verdict form, it gave an instruction explaining that the jury should find the defendant guilty if it unanimously agreed that the government had met its burden, not guilty if it unanimously agreed that the government had failed to do so, and not guilty by reason of insanity if it unanimously found that the government had met its burden "but unanimously agree[d] that the defendant ha[d] shown by clear and convincing evidence that he was insane. . ."  The jury sent the district judge a note asking what it should do if it unanimously found that the government had proven its case, but did "not unanimously agree that the defendant was sane or insane."  The defense proposed instructions requiring the jury to reach a unanimous verdict on the insanity defense, but the district court opted for a response that essentially directed the jury to its prior instructions.
In an opinion by Judge Kozinski, the Court reversed.  Judge Kozinski explained that the situation confronted by the jurors exposed a genuine ambiguity in the district court's instructions.  Unable to agree on whether the defendant was legally insane, the jury could elect to (1) declare itself deadlocked based on their disagreement, or (2) find the defendant guilty based upon their agreement on the government's case.  By simply directing the jury back to its instructions, the district court failed to clarify the ambiguity.  In assessing the harmfulness of the error, the Court of Appeals noted that no federal court had addressed the question of whether the unanimity requirement applies to an affirmative defense in a criminal trial.  Canvassing state criminal cases and Circuit civil caselaw, the Court concluded that it did.  Those cases suggested that "elements and affirmative defenses are co-equal components of the jury's liability determination" and thus are equally subject to the unanimity requirement.  "Since a jury verdict must be unanimous," Judge Kozinski explained, "a jury united as to guilt but divided as to an affirmative defense (such as insanity) is necessarily a hung jury."  Without a clarifying instruction, the Court was unable to eliminate the possibility that the jury convicted the defendant without resolving their dispute over the affirmative defense. 
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United States v. Adams, No 04-30339 (1/3/06) (D. Mont.) (Alarcon with Kozinski; dissent Kleinfeld).  Rule 11 Issues; Sentencing: Fines.  The court vacated a guilty plea based on a Rule 11 violation.  The court held that it was not enough to inform a defendant of the maximum fine possible based on his plea; instead, because the Guidelines required the imposition of a fine if the defendant is able to pay, the court held that in a pre-Booker plea, the defendant must have been informed of that "mandatory" Guidelines sentence provision under Rule 11(b)(1)(I).  The court distinguished cases holding that the defendant must be informed of the minimum Guidelines prison term, on the basis that until the presentence report is prepared, there's no way to tell with any certainty what that term will be and, in any event, those cases predate the amendment to Rule 11 that requires the court to inform the defendant of its obligation to apply the Sentencing Guidelines.  The court held that the defendant does not have to be informed of what the fine will be (again, because that calculation can't be made until the PSR is done), but does have to be told that if he can afford to pay, a fine is mandatory.  Because the defendant was in fact able to pay, and because part of his plea deal was that the government would recommend no fine (thus making it clear that the fine issue was important to his plea), the error was plain and affected the defendant's substantial right to enter a knowing, voluntary and intelligent plea.  Judge Kleinfeld, who's becoming quite skilled at dissents these days, argued that established case law from this and nine (count 'em, nine) other circuits made it clear that defendants only needed to be advised of mandatory statuory minimums, not Guidelines minimums.  He noted that he could not "share the majority's insouciance [n. the state of being calm, untroubled, and carefree; indifference]" in the face of such a "solid phalanx [n. 1. a massed group of individuals, united for a common purpose; 2. any of the bones forming the fingers or toes] of authority."
As the dissent pointed out, the opinion only applies to pre-Booker pleas, because after Booker the fine is no longer "mandatory."  Second, as the majority itself points out in footnote 3, the defendant's ability to pay and the terms of the plea agreement "make this the rare case in which the district court's failure to inform him of the mandatory fine cannot be deemed harmless.  See Fed. R. Crim. P. 11(h)."
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United States v. Nobriga, No. 04-10169 (1/3/06) (D. Haw.).  The court ordered its May 20, 2005 opinion withdrawn pending the en banc decision in Fernandez-Ruiz v. Gonzales.  The squib for the original opinion is attached below.  The panel opinion in Fernandez-Ruiz found an assault under an Arizona statute to be a misdemeanor crime of domestic violence, so it appears that more guidance on misdemeanor crimes of domestic violence will be forthcoming.    
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United States v. Nobriga (5/20/05) (D. Haw.) (Wardlaw, Berzon, and Fitzgerald, D.J.) (per curiam).  Felon in Possession.  The court reversed a conviction for possession of a firearm after a misdemeanor conviction for domestic violence.  The court held that, under the modified categorical approach set out in Taylor and Shepard, it could not sustain the conviction because Hawaii's domestic violence statute included violence against cohabitants while the federal definition more narrowly specifies that the violence must occur within particular types of personal relationships. The court found the defendant's admission that the victim was a former girlfriend to be inadequate to meet the federal definition.  The court reversed the conviction even though the defendant did not raise this argument in the district court because accepting defendant's conditional guilty plea to a crime he could not have committed as a matter of law constituted a plain error affecting substantial rights. 
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Santos v. Guam, No. 03-70472 (1-3-06)  (Schroeder, Goodwin, Wallace) (Guam)  No Circuit is an island, entire of itself, but when it comes to Guamian jurisdiction, Congress did make the island entire of itself, at least for decisions arising from Guam law and decided by the Guam Supreme Court.  The 9th used to have jurisdiction to review the Guam Supreme Court's decisions.  Congress took it away on Oct. 30, 2004.  What happens to cases in the pipeline?  The 9th looked to Supreme Court precedent (Ex parte McCardle, Bruner and Landgraf), where cases have held that when jurisdiction is repealed, with no reservation clauses for pending cases, the court is without jurisdiction.  Wallace concurred, adding that a party doesn't have a right to have a number of tribunals to seek appeal.  This jurisdiction stripping case may have implications in the future should Congress strip jurisdiction either in habeas or in other areas.
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Williams v. Runnels, No. 04-55830 (1/5/06) (C.D. Cal.) (Callahan, with Leavy and Graber).  Batson; Peremptory Challenges.  The court reversed the district court's denial of habeas relief based on a Batson issue.  In the trial, the defendant made a Batson challenge based on the facts that the prosecutor exercised three of his first four peremptory challenges to dismiss  African-American jurors and only four of the first 49 potential jurors were African-American.  The Ninth Circuit held that the statistical disparity itself was sufficient to create an inference of purposeful discrimination (i.e., the prima facie showing that is the first prong of the Batson procedure).  Relying on the Supreme Court's recent opinions in Johnson v. California, 125 S. Ct. 2410 (2005), and Miller-El v. Dretke, 125 S. Ct. 2317 (2005), the court held that the inference could not be rebutted by speculation that there might have been race-neutral reasons; rather, once the inference is stablished, the prosecutor must be asked for the real reasons. 
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United States v. Teeples, No. 03-30307 (1/5/06) (S.Ct. remand to D. Mont.) (Schroeder, Browning, and Tashima) (per curiam).  Sentencing: Career Offender.  On remand from the Supreme Court following Booker, the court reaffirmed its previous determination that the defendant's two prior convictions for lewd and lascivious acts with a child under 14 were "crimes of violence" under USSG 4B1.2.   The court found that the risk of violence is implicit in the size, age, and authority position of the adult in dealing with a child, and the court also noted that here the victim was the defendant's own daughter and that the special and unique dynamic of a parent-child relationship further contributes to that risk.  However, because the defendant was previously sentenced under the mandatory Guidelines regime, the Court granted an Ameline remand.
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United States v. Alferahin, No. 04-10590 (1/11/06) (D. Ariz.) (B. Fletcher, with Gibson (8th Cir.); Berzon concurring).  Materiality; Jury Instructions: Defects; Ineffective Assistance (of counsel).  The defendant, a Jordanian citizen, obtained permanent resident status by virtue of his marriage to an American citizen.  On his naturalization petition, he failed to disclose a previous marriage.  Thus, he was charged with violating 1425(a) by knowingly procuring naturalization contrary to law, and the case went to trial.  The govt argued to the jury that the first marriage -- which was in Spain and was not officially dissolved at the time deft petitioned in the U.S. -- was material to a determination of whether marriage fraud occurred; the defense asserted the false statement was irrelevant.  However, the defense attorney stated that he thought a materiality instruction was inappropriate, and none was given.  The circuit held that section 1425(a) contains a materiality requirement and that it was plain error for the court not to give it, meaning reversal and remand for a new trial.  Further (and this is the point to be particularly alert to), in the course of its prejudice analysis, the circuit interpreted the law as requiring a very high materiality hurdle under section 1425(a) -- i.e., that the govt has to produce evidence showing that the information deft left off his form "would have given rise to evidence that fairly suggests the invalidity of [deft's] second marriage."  The panel noted that the govt did not come close to making such a showing.  The panel also held that a new trial must be granted b/c of deft's counsel's ineffectiveness in rejecting the materiality instruction; Judge Berzon concurred b/c she would have reversed on that ground only, noting that the plain error analysis is more thorny than the panel suggests.
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