Administrative Note: The next edition of the Roundup will post on Monday, January 30.
(Cross-posted from the C.D. Cal. Federal Public Defender blog.)
In This Edition (to use bookmarks, first click blog post title):
News to Use | New Rules | Top of the Ninth | SCOTUS Focus | The Week in Sausage Making | For the Bookworms
A Decent Proposal? The Sentencing Commission has come out with its latest notice of proposed amendments and request for comment. Among the issues flagged is the impact of the loss and victim tables in §2B1.1(b). More at Berman's blog.
Parrying Perry. In response to the Supreme Court's decision last week in Perry v. New Hampshire, Federal Evidence Review has put together a handy collection of circuit and state model jury instructions on the fallibility of eyewitness identification. It's here (we've added the page to our Links).
New Rules. The Ninth Circuit Jury Instructions Committee has revised several model jury instructions, on both the criminal and civil side. Click the links for details and downloads.
Top of the Ninth - 9th Cir. decisions released during the week.
· U.S. v. Juvenile Male (defendant was "Indian" within §1153, notwithstanding social and subjective nonrecognition - facts that might be relevant in closer cases if not here).
· U.S. v. Solorio (in possession-with-intent-to-distribute case, district court's failure to require interpreters to take an oath before translating government informant's testimony was not plain error) (DEA agents' testimony recounting present sense impressions of nontestifying agents was not plain violation of Confrontation Clause) (there was sufficient evidence, notwithstanding chain of custody testimony, that substance seized was meth).
· U.S. v. Kuok (venue for Arms Export Control Act and related violations was proper even if based on conduct of undercover agent) (the AECA was not unconstitutional delegation) (but attempting to cause someone to export defense articles - as opposed to causing someone to attempt it - does not violate the AECA) (funds transferred for military encryptor did not meet $10,000 threshold for §1956 money laundering) (encryptor was "bought" for purposes of §554 smuggling despite defendant's never taking possession; encryptor was "intended" for export though ICE agent who controlled it lacked that intent; and conduct occurred "prior to exportation" though device was never exported) (instruction permitting jury to convict for conspiracy to cause an export theory was not tainted by improper instruction on attempt) (but conspiracy and smuggling counts nonetheless still vacated because defendant was improperly barred from presenting evidence of duress). UPDATE (01.23.12): Ninth Circuit Blog's analysis here.
· U.S. v. Melendez-Castro (remanding in §1326 case where defendant had not been meaningfully advised of right to seek voluntary departure, a defect that also rendered appeal waiver invalid).
SCOTUS Focus
Opinions:
· Maples v. Thomas (habeas) (petitioner showed ample cause to excuse procedural default, where counsel had abandoned him without warning during filing period for NOA) (dissenting, Scalia J., joined by Thomas, J., would hold that an inordinate concern for fairness should not impede the state's ability to have an "orderly system of criminal litigation," such as the orderly system of criminal litigation at issue here).
The Week in Sausage Making. Measures introduced include H.R. 3781 (penalties for torture committed by law enforcement).
For the Bookworms - New books and scholarly articles of note.
· "Booker Rules," Amy Baron-Evans & Kate Stith, U. Penn. L. Rev. (forthcoming) (SSRN) (argues that the Sessions plan to reenact mandatory guidelines to remedy supposedly increased racial disparities post-Booker has it backward).
· "Racial Disparity in Federal Criminal Charging and Its Sentencing Consequences," M. Marit Rehavi & Sonja B. Starr, working paper (2012) (SSRN) (study finds among other things that black arrestees, particularly males, face charges significantly more severe than do others, which is the major driver of sentencing disparities).
· "Court of Appeals Dynamics in the Aftermath of a Supreme Court Ruling," Stephen L. Wasby, 42 Golden Gate U. L. Rev. 5 (2011) (pdf).
· Comment: "Reasonable Suspicion Plus": A Framework to Address Chief Judge Alex Kozinski's Concerns of Mass Surveillance Without Compromising Police Effectiveness," Tyler R. Smith, 41 Golden Gate U. L. Rev. 47 (2011) (pdf).
· Ninth Circuit Criminal Handbook, LexisNexis (2011) (Lexis page).
· Power Concedes Nothing: One Woman's Quest for Social Justice in America, from the Courtroom to the Kill Zones, Connie Rice (Amazon) (memoir chronicles author's civil rights litigation against Rodney-King-Era LAPD, among other events).
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Suggestions or corrections? Email Michael_Drake@fd.org.
