The Criminal Docket


May 2006 

Volume 1, Number 4

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 
The Supreme Court also issued an opinion addressing the waivability of the AEDPA one-year time limit.  [AEDPA - Statute of Limitations.] Here's Criminal Appellate's summary:  On April 25, 2006, the Supreme Court decided Day v. McDonough, No. 04-1324, a case involving the one-year time limit for filing habeas petitions under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Full text 

In this case, the petitioner, who had been convicted in Florida, first sought postconviction relief from the state courts and was unsuccessful.  The petitioner filed his state habeas petition 353 days after the certiorari time ran on the affirmance of his conviction. While the state habeas was pending, the one-year time limit was tolled.  Once the state appellate court affirmed the denial of state habeas relief, the clock started running again, and the petitioner filed his federal habeas petition 36 days later.  The State conceded that his petition was timely, when in fact, under Eleventh Circuit law, his petition had been filed after 388 days of untolled time, making the petition untimely.
The magistrate judge noticed the apparent untimeliness of the petition and ordered petitioner to show cause why it should not be dismissed. Finding his explanation insufficient, the magistrate judge recommended dismissal and the district court adopted that recommendation.  The Eleventh Circuit affirmed, holding that a State's patently erroneous concession of timeliness does not prevent the court from sua sponte dismissing on timeliness grounds.  Day petitioned for Supreme Court review, arguing that the statute of limitations was an affirmative defense and that the state had waived that defense under the Federal Rules of Civil Procedure.
The Supreme Court held that in these circumstances, the district court had discretion to decide whether the interests of justice were better served by dismissing the petition as untimely or addressing the merits.  The Court noted that it would consider it an "an abuse of discretion to override a State's deliberate waiver of a limitations defense," but found that here the State had not made an intelligent waiver but had evidently simply miscalculated the time.  Because, under Fed. Rule Civ. Pro. 15(a), the court might have informed the State of its computational error and entertained an amendment to the State's answer, the Court saw "no dispositive difference between that route" and the court's sua sponte dismissal here.  The Court  stressed that district courts are permitted, but not required, to consider sua sponte the timeliness of a habeas petition, and courts have no obligation to check the State's math.  Furthermore, the court must accord the parties notice and an opportunity to be heard before acting on its own initiative.  The rule here is in accord with the Court's approach to forfeiture of other threshold barriers to habeas petitions, such as exhaustion of state remedies and the non-retroactivity rule of Teague v. Lane, 489 U.S. 288 (1989), where the Court has also held that a district court may, but need not, consider those issues despite the State's failure to argue them.  See Granberry v. Greer, 481 U.S.129 (1987), and Caspari v. Bohlen, 510
U.S. 383 (1994).
Justice Scalia wrote a dissenting opinion, in which Justices Thomas and Breyer joined. The dissenters agreed with the majority, however, that the district court might have called the State's attention to its error and invited an amendment to its answer.

Here's a report on today's "odd flyspeck of a case" out of the Supreme Court.  It's another in their search and seizure theme for this term  (Search/Seizure -- Exigencies).  Tom Gannon of the Criminal Appellate Section reports on today's Supreme Court decision.

Brigham City, Utah v. Stuart, No. 05-502:   On May 22, 2006, in  Brigham City, Utah v. Stuart, No. 05-502, the Supreme  Court ruled unanimously that police may enter a home without a warrant  when they have an objectively reasonable basis for believing that an occupant is seriously injured or is imminently threatened with such  injury.  The case arose out of a July 23, 2000, incident when four  Brigham City police officers responded at 3:00 a.m. to complaints of a  loud party.  The officers heard noise coming from the back of the residence, proceeded down the driveway, and saw two juveniles drinking beer in the backyard.  After the officers entered the yard and approached the house, they saw through windows and a screen door an altercation in the kitchen.  Four adults were trying to restrain a  juvenile, who got one hand free and punched one of the adults in the face.  An officer opened the screen door and announced his presence.  No one heard him.  He and another officer then entered the kitchen and announced their presence, and the altercation subsided.  The officers ultimately arrested the adults for contributing to the delinquency of a minor, disorderly conduct, and intoxication.
  A Utah trial court suppressed all evidence obtained after the officers entered the house because the officers' failure to knock  before entering violated the Fourth Amendment.  A divided intermediate Utah appellate court affirmed.  The divided Supreme Court of Utah also affirmed, finding that (1) the injury caused by the juvenile's punch was insufficient to trigger the "emergency aid doctrine" because it did not give rise to an objectively reasonable belief that an unconscious, semi-conscious, or missing person was in the home; (2) the doctrine did not apply because the officers had entered the kitchen not to assist the injured adult, but had acted in their law enforcement capacity; and (3) the harm caused by the juvenile's punch  was insufficient to trigger the exigent circumstances exception to the warrant requirement.
  In a unanimous opinion by Chief Justice Roberts, the Supreme Court reversed, explaining that an action is reasonable under the Fourth Amendment, regardless of an officer's state of mind, as long as the circumstances, viewed objectively, justify the action, and that the officers' subjective motives in this case were irrelevant.  The Court distinguished cases like Indianapolis v. Edmond, 531 U.S. 32  (2000), where programmatic searches were found to be unconstitutional, and cases like Welsh v. Wisconsin, 466 U.S. 740 (1984), where exigent circumstances were insufficient to justify a warrantless entry.  Edmonds, the Court said, had nothing to do with the mindset of the officer conducting the programmatic search, and Welsh did not address a situation involving continuing violence inside a home.  The Court  concluded that the officers here had an objectively reasonable basis  for believing that the injured adult might need help and that the violence in the kitchen was just beginning.  The Fourth Amendment, the Court said, did not require them to wait until someone was more
 seriously injured.  The Court commented that the role of a peace officer is to prevent violence and restore order, not simply to render aid to casualties.  The Court also found the manner of the officers' entry reasonable: the officer's initial  announcement of his presence was equivalent to a knock on the screen door, and once the announcement was made, the officers were free to enter rather than wait dumbly for a response as the brawl continued.
  Justice Stevens joined the majority opinion, but wrote a concurring opinion in which, inter alia, he wondered how this "odd flyspeck of a case" was granted review in the Supreme Court, suggested that the case might have been resolved on the basis of the Utah state  constitution, and said that he remained persuaded that his vote to deny Utah's petition for a writ of certiorari was correct.  
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United State Supreme Court Reviews Granted: 


U.S. Court of Appeals (9th Circuit):

United States v. Johnson,
No. 02-50618 (4/13/06) (C.D. Cal.) (Trott, with  Rymer & Thomas).  Sufficiency of Evidence - Firearms Possession.  The court affirmed the denial of Johnson's Rule 29 motion but remanded this pre-Booker sentence for plenary resentencing (it was Judge Baird's case so they couldn't do an Ameline remand).  Johnson was charged with armed bank robbery, conspiracy to commit bank robbery, and brandishing a firearm during a crime of violence (based on his participation in the conspiracy; Johnson was the getaway driver, and did not personally brandish a firearm).  The jury convicted him of the conspiracy count, and (lesser included) simple bank robbery without the "armed" element, and hung on the brandishing count.  The government moved to dismiss that count without prejudice.
On appeal, Johnson argued that his Rule 29 motion should have been granted, and therefore the dismissal should have been with prejudice. The Court disagreed, finding sufficient evidence that a rational trier of fact could have found him guilty beyond a reasonable doubt.  Noting that convictions for the use of firearms in violation of 924(c) can be supported under a conspiracy theory, the court pointed to the facts that guns were used by Johnson's coconspirators, that they were wielded during their entry and exit from the bank (suggesting that Johnson was aware of them), and that the car used was very small, making it unlikely that he wouldn't have noticed the rifle being carried by the coconspirator.  The jury's inability to reach a verdict was not an acquittal, and therefore Johnson was not entitled to dismissal with prejudice.
In a useful comment in remanding for resentencing, the court expressly stated that there would be no prohibition on considering, as a sentencing factor, the robbers' use of weapons and the injury to victims, even though Johnson had been acquitted of "armed" robbery.  The Court said that nothing in Ameline or Booker affected United States v. Watts, 519 U.S. 148 (1997) (holding that acquitted conduct may be considered at sentencing).
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Jones v. City of Los Angeles, No. 04-55324 (4/14/06) (C.D. Cal.) (Wardlaw, with Reed (D.J.); Rymer, dissenting).  Sentencing - Eighth Amendment Claims.  In this civil rights case, the 9th Circuit held that a Los Angeles ordinance violates the Eighth Amendment to the extent it prohibits homeless individuals from involuntarily sitting, lying, or sleeping on the street due to the unavailability of shelter in Los Angeles.  After first finding that the plaintiffs had standing notwithstanding the fact that they had not yet been convicted under the ordinance, the court held that the ordinance violated the Eighth Amendment because it penalizes the homeless for being in "a chronic state that may have been acquired 'innocently or involuntarily'" and for doing things -- sitting, lying, sleeping -- that they cannot avoid as human beings.  The court distinguished cases such as illegal reentry on the basis that the conduct here is involuntary and inseparable from status.  Judge Rymer dissented on both the standing issue and the merits.  In her view, the failure of the city to provide a benefit in the form of shelters did not convert the ordinance into a status offense and could not provide the basis for an Eighth Amendment claim.
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Raley v. Ylst, No. 04-99008 (4/14/06) (N.D. Cal) (Graber, with Silverman and Clifton).  Ineffective Assistance of Counsel; Jury Misconduct; Brady Violation Arguments.  The court affirmed the denial of a habeas petition, holding that the petitioner received adequate assistance of counsel at both the guilt and penalty phase of his trial, that alleged juror misconduct did not warrant relief, and that there was no Brady violation in the state's failure to turn over medical records from the defendant's time in pretrial detention. Raley was convicted and sentenced to death for a brutal kidnapping/ rape/murder.  The court held that defense counsel's deliberate decision not to use any mental health experts and to rely
on Raley's family members to describe abuse he had suffered was reasonable.  As you may recall from other Skinnies, it's the unusual case these days that does not find IAC in not presenting such mitigating evidence. The court here distinguished other cases as involving situations where counsel had not bothered even to investigate the potential of expert testimony; in this case, defense counsel had conducted a reasonable investigation and made a reasonable
strategic choice because the experts' assessments were not unequivocally helpful to the defense.
Furthermore, even had Raley's counsel's performance been ineffective, the Court found that he had failed to show prejudice, in that there was no showing that it was reasonably probable that the result would have been different.  The jury heard evidence of Raley's childhood abuse, the link between childhood abuse and subsequent violence is well-known and not particularly esoteric, and the experts' testimony was equivocal and in some respects inculpatory.
Raley also claimed jury misconduct based on affidavits stating that jurors had discussed his failure to take the stand, the fact that he might someday be released absent the death penalty, and the cost of incarcerating him for life.  The court held that while these were improper considerations, and that the jury may have disregarded the trial court's instructions, these are not extrinsic influences, but rather intrinsic to the deliberations, and thus beyond consideration on review.
Finally, Raley claimed a Brady violation in the state's failure to disclose exculpatory and mitigating information in his medical records from his pretrial confinement.  The court rejected the claim, noting that because Raley knew he had received medical attention, and therefore knew of the existence of medical records, his counsel could have sought the records through discovery.
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United States v. Kilby
, No. 05-30112 (4/7/06) (D. Idaho) (Tashima, with Fernandez and Paez).  Sufficiency of Evidence - Conspiracy; Sentencing - Burden of Proof; Sentencing - Proof.  The court affirmed the defendant's Ecstasy/Foxy conviction but reversed the 96-month sentence based on insufficiently reliable evidence of drug quantity. The court rejected the defendant's argument that the evidence was insufficient because his coconspirator had withdrawn from the
conspiracy before selling Ecstasy to an undercover agent, finding ample evidence from which the jury could infer that the coconspirator had not withdrawn from the conspiracy (like, for example, the fact that he sold drugs to the agent...).  As to sentencing, the court first held that facts supporting guidelines adjustments need not be proven beyond a reasonable doubt but rather by a preponderance of the evidence.  The court dropped a footnote referencing the clear and convincing standard where a sentencing factor has an extremely disproportionate effect (a standard we're arguing should no longer
apply in the post-Booker world).  The court also noted that the heightened standard wasn't at issue because it has not been applied to drug quantity.  The court ultimately held that the district court erred in relying on weights of Foxy tablets seized in two unrelated cases from different parts of the country to approximate the weight of the Foxy tablets involved here.  Because there was no evidence that the weight of the tablets in the other cases would be similar to the weight of the tablets in this case, the court found the evidence to be insufficiently reliable to support the district court's finding.
Accordingly, the court remanded for resentencing without reaching the issue of whether the sentence was reasonable.
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In re Alvaro Vasquez-Ramirez, No. 04-75715 (4/6/06) (S.D.Cal.) (Kozinski, with Canby and Siler (6th Cir.)).  Rule 11 Issues;
Mandamus.  The court granted a mandamus petition and remanded to a different judge where the judge refused to accept the defendant's valid guilty plea pursuant to a fast-track plea agreement.  The court explained that the court could only reject the plea agreement, not the plea itself.  If the court had rejected the plea agreement, the defendant should have had the choice to stand by his plea or withdraw his plea, and if he chose to stand by the plea, the government should have had the choice whether or not to pursue the 1326 charge.  The district court intruded on prosecutorial discretion when it  effectively forced the government to pursue a charge it did not wish to pursue by rejecting the defendant's guilty plea to the lesser charge.  The court held that reassignment to a different judge was necessary because the judge had already viewed the defendant's criminal history report and had told the parties that he would not grant any motion by the government to dismiss the 1326 indictment.
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United States v. Garcia-Beltran, No. 05-30434 (4/6/06) (D. Or.) (Otero (D.J.), with Graber, and Rawlinson).  Fingerprint Issues.  The court upheld the district court's granting of the government's motion to compel fingerprint exemplars.  In an earlier appeal in this case, the court had remanded for an evidentiary hearing on defendant's motion to suppress fingerprint exemplars taken following his arrest, for the district court to determine if the fingerprints had been taken for investigative purposes rather than identification purposes.  On remand, the district court found that the agents had taken two more sets of fingerprints after the initial set at the time of arrest and found that these subsequent exemplars were taken for investigative purposes and therefore ordered them suppressed. The government then sought an order requiring defendant to provide fingerprint exemplars, which the court granted.  On this appeal, the 9th Circuit rejected defendant's argument that law of the case precluded the district court from ordering a new set of fingerprints because the original opinion had dealt only with the admissibility of the original set of fingerprints and not whether a new set could be ordered.  The court
also rejected defendant's argument that the new prints would constitute the fruits of an illegal arrest, relying on the principle that the identity of a defendant is not suppressible as fruit of the poisonous tree.
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United States v. Transfiguracion, No. 04-10457 (4/5/06) (D. Guam) (Berzon with B. Fletcher; Gibson (8th Cir.), dissenting). Plea Agreements - Breach/Interpretation.  Rejecting a government appeal, the 9th Circuit affirmed the dismissal of an indictment on the ground that the defendants' plea agreements prohibited the government from prosecuting them for the offenses in the indictment.  Pursuant to the plea agreements, both defendants waived indictment and pled guilty to importation under 21 USC 952(a) based on their smuggling of drugs from California to Guam.  Subsequently, the 9th Circuit issued an opinion holding that smuggling from California to Guam does not constitute importation under 952(a).  Both defendants then moved to dismiss the importation information, and the district court granted the motion. The government argued that it should then be able to prosecute defendants on the underlying indictment (which charged a bunch of other narcotics crimes that were unaffected by the importation opinion), but the district court rejected that argument and dismissed the underlying indictment as well.  The 9th Circuit agreed. The court rejected the government's argument based on "mutual mistake of law," finding that doctrine inappliable to plea agreements.  The court then concluded that the plea agreements' language that "[i]f defendant's guilty plea is rejected, withdrawn, vacated, or reversed at any time, the United States will be free to prosecute defendant for all charges of which it then has knowledge," did not permit the prosecution under the original indictment because the language did not cover the circumstance here where the information was dismissed.  Judge Gibson dissented and would have found the language in the plea agreement sufficient to cover the circumstance and permit prosecution on the original indictment.  He noted that "[c]ontra proferentem does not simply mean, 'The government loses.'" 
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United States v. Kevin Eric Curtin, No. 04-10632 (4/4/06) (D. Nev.) (Wallace, with Rymer; Trott, dissenting).  The court remanded for a new trial based on improper admission of Rule 404(b) evidence. Defendant was charged with traveling across state lines with intent to engage in a sexual act with a minor and use of an interstate facility to attempt to persuade a minor to engage in sex.  Defendant chatted online with an undercover agent posing as a 14-year-old girl and invited her to meet him in Las Vegas, where he was arrested.  At trial, the government introduced into evidence five stories found on defendant's personal digital assistant, all of which were about adults having sex with children (there were actually 140 such stories, but the district court allowed only five).  The 9th Circuit held the admission of the stories was improper.  The court rejected the government's "inextricably intertwined" argument, finding the stories had no relation to the particular interaction at issue in the case. The court found insufficient similarity to satisfy Rule 404(b), noting the wide gulf separating the act of possessing written descriptions about criminal conduct from the act of committing such criminal
conduct.  The court also held that the evidence did not fall within the modus operandi exception. Note that the government failed to argue harmless error, and the 9th Circuit therefore held that issue to be waived.  The court did, however, affirm on two other issues, namely the denial of a spoliation instruction based on the government's failure to request a copy of the surveillance video from the Las Vegas casino and the failure to define specifically what constitutes a substantial step.  In an unbelievably long dissent, Judge Trott stated that he believed the evidence to be relevant to show that defendant's
intent was to engage in sex with a minor and to refute his defense that he expected the person he had chatted with was a 30 to 40 year old woman who liked to pretend she was a child, and that the majority's opinion "improperly hamstrings the capability of the rule of law to cope in this Circuit with adults who see children as sexual prey."
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United States v. Piccolo, No. 04-10577 (4/3/06) (D. Nev.) (B. Fletcher, with Gibson (8th Cir.) and Berzon). Sentencing - Career
Offender; Sentencing - Categorical Approach.  The court reversed a sentence based on its conclusion that escape from a halfway house does not constitute a crime of violence for career offender purposes.   The district court had applied the categorical approach to determine that all escapes are crimes of violence as a matter of law because they present a serious potential risk of physical injury.  The 9th Circuit disagreed and held that because walkaway escapes, like the one at issue in this case, do not necessarily present such a risk, escapes cannot be categorically considered crimes of violence.  The 9th
Circuit opinion conflicts with the views of nine other circuits that have held that any escape is a crime of violence.
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United States v. Romero-Martinez, No. 05-10153, April 25, 2006 (N.D. Cal.) (Wallace, with Hawkins and Thomas).   Sentencing - Firearms; Booker - Reasonableness. The court affirmed a sentence in a felon-in-possession case, where the court imposed a two-level enhancement based on an obliterated serial number.  This case was a post-Blakely case in which a sentencing jury found that the gun had an "altered or obliterated" serial number.  The 9th Circuit first upheld the court's jury instruction that included "removed" within the definition of "obliterated," finding that "removed" easily fell within
the definition of "obliterated."  The court also rejected defendant's argument that the obliteration of serial numbers on the slide and barrel did not qualify because those components do not fall within the definition of a "firearm."  The court held that altering or obliterating serial numbers on the major components of a gun, at least when assembled as a fully functional weapon, qualifies for the enhancement.  Next, the court rejected defendant's arguments that the enhancement should not apply because the serial numbers on the slide and barrel were not required by federal law and the one on the frame had not complied with federal law.  The court found the issue of whether the serial numbers complied with federal law to be irrelevant because the relevant inquiry is whether accurate information was made less accessible and the firearm was thereby made more difficult to trace.  Finally, in a very truncated analysis of Booker reasonableness, the court found the sentence to be reasonable for the same reasons that it upheld the enhancement and then went on to state that "[t]o the extent that 'reasonableness' requires independent review, it is plainly reasonable to impose the enhancement . . . where
the gun had not one, but three separately tampered-with serial numbers."
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United States v. Lopez-Torres, No. 05-10392 April 25, 2006 (D. Nev.) (Goodwin, with B. Fletcher and Fisher).  Sentencing - Categorical Approach.  The 9th Circuit affirmed a sentence, holding that a conviction under California Penal Code 246 for shooting at an occupied motor vehicle is categorically a crime of violence for purposes of USSG 2L1.2.  In case it weren't obvious enough that shooting at an occupied motor vehicle necessarily involves a potential for violence and the threatened use of physical force against the person of another, the court also relied on its recent precedent holding that
shooting at an inhabited (but unoccupied) dwelling under CPC 246 is categorically a crime of violence.  See United States v. Cortez-Arias, 403 F.3d 1111, 1115, amended, 415 F.3d 977, 425 F.3d 547 (9th Cir. 2005).  The court also rejected defendant's argument that because a conviction under CPC 246 could result in a sentence of one year or less it is not categorically a felony, noting that for purposes of 2L1.2 the offense just has to be "punishable" by imprisonment for more than one year.  Finally, the court rejected (once again) defendant's claim that Almendarez-Torres is no longer good law.
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United States v. Bahamonde, No. 04-50618, April 25, 2006 (S.D. Cal.) (Canby, with Kozinski; Rawlinson, dissenting).  Discovery Issues; Due Process Claims; Sixth Amendment Issues.  The 9th Circuit reversed defendant's convictions for importation and PWID marijuana based on the district court's erroneous exclusion of testimony by the case agent.  At trial, defendant sought to call the case agent as a witness because he claimed the agent had substantial information about another individual who defendant claimed was responsible.  The district court excluded the testimony on the ground that defendant had failed to comply with DHS's regulations governing testimony by its employees by failing to "set forth in writing, and with as much specificity as possible, the nature and relevance of the official information sought."  See 6 CFR 5.24(a).  The 9th Circuit held that the regulation violated due process because it did not provide for reciprocal discovery, as required by Wardius v. Oregon, 412 U.S. 470 (1973), and that the defendant was not required to comply with the regulation in order to challenge it.  The court also held that the district court violated defendant's Sixth Amendment rights by not balancing countervailing interests such as the importance of the testimony in deciding to exclude the testimony.  Judge Rawlinson dissented on the ground that the issue is really one of an agency's right to control disclosure of information within its custody rather than one of reciprocal discovery.
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United States v. Miranda-Guerena, No. 05-10198, April 25, 2006 (D. Ariz.) ( Alarcon, with Holland (D.J.); McKeown, concurring). Search/Seizure - Traffic Stops; Search/Seizure - Collective Knowledge. The 9th Circuit affirmed the denial of a motion to suppress, finding reasonable suspicion to believe a traffic stop had occurred.  Arizona officers were investigating defendant and his "co-inhabitant" for drug trafficking and, after observing the co-inhabitant commit two traffic violations, directed a sheriff's deputy to stop the car; at the time of the stop, the deputy was not aware of the information uncovered during the drug investigation and he had not seen the traffic violations.  The 9th Circuit majority first observed that, under Arizona law, the deputy did not have to personally observe the traffic violation to make the stop. Ultimately, however, the court noted that the relevant question was whether the stop violated the Fourth Amendment, and the court held that just as with other investigatory stops, traffic stops can be based on collective knowledge and not only
on the stopping officer's personal observations.  Judge McKeown concurred to underscore that federal law, and not Arizona law, was determinative.
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The Supreme Court also issued an opinion addressing the waivability of the AEDPA one-year time limit.  [AEDPA - Statute of Limitations.] See U.S. Supreme Court Decisions, above.   

United States v. Brigham, No. 03-30381, May 5, 2006, (D. Or.) (Kleinfeld, with Ferguson (Concurrence), and Trott).  Plain Error; Sentencing - Proof; Sentencing - Violation of Judicial/Administrative Order.  The 9th Circuit affirmed defendant's sentence in a loan fraud case.  The majority first found no "plain" error (but declined to decide whether there might have been some murkier type of error) in the sentencing judge's discussion of defendant's case at a meeting of a "sentencing council" -- a gathering of judges designed to reduce sentencing disparity -- finding no cases on point suggesting that such
a council is improper.  The court also upheld the application of a two-level enhancement for violating a court order where defendant was subject to a state court injunction prohibiting him from selling or offering to sell stocks and he directed another to pledge stock as collateral, citing United States v. Kendrick, 692 F.2d 1262, 1265 (9th Cir. 1982) (pledge of stock is a sale).  The court also rejected defendant's general argument that there was insufficient evidence to support the district court's calculation of loss where the district court relied on the presentence report and a U.S. Trustee's detailed report with 13 pages of attachments.  Noting that defendant had failed to identify any particular error, the court observed that "he is not inclined to search [the voluminous documents in the case] in the hope that an error might be found.  Neither are we."  The court ordered an Ameline remand.  Judge Ferguson concurred, stating that he would have found error in the use of a sentencing council, but he agreed with the majority's Ameline remand.
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Mason v. Yarborough, No. 04-17330, May 5, 2006, (E.D. Cal.) (Hawkins, with Wallace (Concurrence), and Thomas).  Confrontation Clause; Bruton.  The 9th Circuit affirmed the denial of a state habeas petition, rejecting defendant's argument that the admission of the fact that a co-participant made a statement to law enforcement, but not the statement itself, violated the Confrontation Clause.  The majority first found no Bruton error because the statement was not incriminating on its face and only implicated defendant when combined with other evidence.  The court then found no error under Crawford because the co-participant's words were never admitted into evidence. Judge Wallace concurred, agreeing with the majority's Crawford analysis, but noting that they should never have engaged in the Bruton analysis because defendant was tried alone and Bruton therefore was not applicable.
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Here's a report on this week's "odd flyspeck of a case" out of the Supreme Court.  It's another in their search and seizure theme for this term (Search/Seizure -- Exigencies).  Tom Gannon of the Criminal Appellate Section reports on this week's Supreme Court decision.


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