(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 | Top of the Ninth | SCOTUS Focus | Short Circuits | For the Bookworms
In the Wake of Jones, FBI Cuts Back on GPS Surveillance . Story at USA Today.
How a Longer Trial Might (Sometimes) Help Your Client. Some reflections on that (and other topics) by a jury foreman who served in a big FCPA case, here.
If I Had a Dime... In a recent speech at an ABA event, Justice Scalia lamented that the federal courts have been inundated with "nickel and dime" criminal cases, "routine...stuff...that should have been left to the state courts." (Via Berman.)
On the Whole, I'd Rather Be in Philadelphia. Allan Ellis profiles the best federal prisons to stay in, here.
Top of the Ninth - 9th Cir. decisions released during the week.
• ACLU v. Masto (civil) (retroactive application of Nevada bills expanding scope of sex offender registration and notification requirements would not violate ex post facto clause, contract clause, double jeopardy clause or due process).
• U.S. v. Reyes-Bonilla (violation of defendant's right to counsel during proceedings of prior removal was not prejudicial because his CAT claim - which identified no evidence of persecution or widespread human rights violations in Guatemala at the time - was implausible).
• Miranda v. Braatz (habeas) (order amending reversal of grant to clarify that broad waiver rule of McCall v. Andrus is not good law, and denying reh'g).
• Farmer v. McDaniel (habeas)(state's reimposition of death penalty based on aggravating circumstances other than the one unconstitutionally used in the first instance would not violate double jeopardy).
• Ibrahim v. Dept. of Homeland Security (civil) (Malaysian citizen, who had established significant voluntary connection with United States, had Article III standing to challenge presence of her name on government watchlists as violative of First and Fifth Amendments).
• U.S. v. Kimsey (district court's disregard of defendant-ghostwriter's statutory right to jury trial under 18 U.S.C. §§402 and 3691 required reversal) (reversal also required because local court rules - here, rules prohibiting "practic[ing] law" without state bar membership - are not "rules" within §402). UPDATE: Ninth Circuit Blog's analysis here.
• Mendoza-Pablo v. Holder (immigration) (petitioner may show persecution through indirect effects, and did so here where petitioner's mother and family suffered severe persecution, which included several of petitioner's relatives' being burned alive by Guatemalan soldiers shortly before petitioner was born).
• Rodriguez v. Holder (immigration) one of five sua sponte orders in deportation cases requiring government to advise circuit whether it intends to exercise prosecutorial discretion and, if so, what expected effect on pending motions would be).
SCOTUS Focus. Per Reuters (via Berman), the Court declined to lift a stay of execution that had been imposed for Ohio's failure to follow its own protocol.
Short Circuits.
• U.S. v. Mahin (4th Cir.) (district court's sentence and conviction of defendant on two separate counts for simultaneous possession of firearm and ammunition was plain error).
• U.S. v. Zavala (5th Cir.) (defendant's verbal consent upon hearing officer's telling dispatch defendant would have to follow him to checkpoint for dog sniff was not voluntary).
• Valdiviez-Garza (11th Cir.) (acquittal of illegal reentry where focus had been citizenship element collaterally estopped subsequent prosecution under same statute).
• U.S. v. Lander (11th Cir.) (mail fraud scheme government relied on at trial was "entirely different from the one alleged in the indictment," resulting in material variance).
• U.S. v. Sanders (11th Cir.) (22-year-old prior conviction involving sale of 1.4 grams of marijuana flunked Rule 404(b) in prosecution for trafficking multiple kilos of cocaine, though the error was harmless).
• In re Doe (IJ decision, 2011) (noncitizen who prevailed in district court in §1326 challenge based on invalid underlying • order may reopen original, years-old removal order within 90 days of district court decision).
For the Bookworms - New books and scholarly articles of note.
• "Where Do We Go from Padilla v. Kentucky? Thoughts on Implementation and Future Directions," Maureen Sweeney, 45 New Eng. L. Rev. ____ (2011) (SSRN) (explores implications of Padilla for other possible constitutional limits on imposing removal as a criminal sanction, and argues that it should be left to the immigration system to respond appropriately and proportionately to convictions).
• "On Reach and Grasp in Criminal Procedure: Crawford in California," Donald W. Dripps, N.C. J. Int'l L. & Com. Reg. (forthcoming) (SSRN) (explores the United States' "peculiar arrangement for adjudicating human rights claims," documents the Court's retreat from Warren-era interventions into state criminal procedure, and highlights the tension between its self-imposed restrictions in this sphere, on the one hand, and the robust confrontation right in state cases it has propounded, on the other).
• "Selected Criminal Law Cases in the United States Supreme Court and a Look Ahead," Charles D. Weisselberg, 47 Ct. Rev. 52 (2011) (SSRN) (with focus on decisions of interest to state judges and practitioners).
• "Nonincorporation," Suja A. Thomas, working paper (2012) (SSRN) (argues that post-McDonald, after reviewing possible theories or arguments for nonincorporation, concludes that none is justifiable).
• "Lies, Honor, & the Government's Good Name: Seditious Libel & the Stolen Valor Act," Christina E. Wells, UCLA L. Rev. Discourse (forthcoming) (SSRN) (argues that the Court's rejection of seditious libel commends the same for the Act).
• Anatomy of Injustice: A Murder Case Gone Wrong, Raymond Bonner (2011) (Amazon) (recounts the wrongful conviction and death sentence of Edward Lee Elmore, a mentally retarded black man with no prior record, and his lawyers' decades-long fight for his exoneration).
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Suggestions or corrections? Email Michael_Drake@fd.org.
