(Cross-posted from the C.D. Cal. Federal Public Defender Blog.)
For the weeks of Aug. 31 & Sept. 7
In This Edition (to use bookmarks, first click blog post title):
Taking the Fourth. Hot off the press, the Oregon Federal Public Defender's annual update to its outline on search and seizure law is here.
Top of the Ninth - 9th Cir. decisions released during the week.
• U.S. v. Bailey (district court erred under FRE 404(b) in admitting prior SEC complaint filed against defendant, where defendant had settled civil suit without admitting liability).
• U.S. v. Pineda-Doval (in applying cross-reference to second-degree murder guideline, district court clearly erred in finding malice aforethought in deaths caused during illegal transportation of aliens).
• U.S. v. Perelman (amended opinion) (after Alvarez, you can lie about getting a Purple Heart, but you still can't wear one).
• U.S. v. Vasquez-Cruz (Amendment 741 to the guidelines did not abrogate Mohamed, and so the panel declined to review for procedural error district court's failure to grant departure for cultural assimilation or consider departure and variance arguments as separate steps) (sentence was substantively reasonable). UPDATE (9.11.12): Ninth Circuit Blog's analysis here.
• U.S. v. Guerrero (court of appeals does not have jurisdiction to take interlocutory appeal of district court's refusal to seal pretrial competency proceedings and related filings) (in dissent, Reinhardt would find jurisdiction under collateral order doctrine). UPDATE (9.11.12): Ninth Circuit Blog's analysis here.
• U.S. v. Williams (district court erred by grouping mailbox bombing counts with wire fraud and extortion counts) (court also erred in applying brandishment and leadership, brandishment, and obstruction enhancements) (extortion offense was not "relevant conduct" for purposes of sentencing for extortion) (enhancements under §§ 2B3.2(b)(1) & (2) were supported by sufficient evidence and not impermissible doublecounting).
• Gentry v. Sinclair (§2254) (IAC claim alleging failure to present mitigating evidence, was exhausted, but foreclosed by double deference) (certain Brady/Napue claim were procedurally defaulted) (exhausted Napue claim identified state court error but no prejudice) (other Brady and IAC claims were also rejected) (admission of victim impact evidence at penalty phase did not violate ex pot facto or due process clauses) (exclusion of juror did not contravene Witherspoon or Wainright).
• Stancle v. Clay (§2254) (district court properly denied petition as untimely).
• Ayala v. Wong (§2254) (trial court's ex parte, in camera consideration of prosecutor's purported reasons for peremptories violated Batson).
• Sanchez-Avalos v. Holder (immigration) (California sexual battery is not categorical aggravated felony).
• Farmer v. McDaniel (§2241) (opinion vacated and related remedies ordered in light of petitioner's death).
• Lavan v. City of L.A (civil) (Fourth and Fourteenth Amendments protect homeless persons from government seizure of personal property momentarily unattended).
SCOTUS Focus. The Court granted cert in Descamps v. U.S. (whether modified categorical approach can be applied to state offense missing an element). Over at the Tenth Circuit Blog, Shari Allison has a running list of all crim-related cases granted cert so far.
• U.S. v. Mahaffy (2d Cir.) (in trial of brokerage house employees for "frontrunning" securities fraud scheme, government violated Brady by failing to disclose testimony of brokerage house members in related SEC investigation that internal information transmitted was not confidential). (H/T)
• U.S. v. Wernick (2d Cir.) (in child enticement case, defendant's other acts involving abuse or attempted abuse of young children were not "relevant conduct" applicable to §2G1.1 because they did not occur "during" offenses, notwithstanding temporal overlap). (H/T)
• U.S. v. Graham (2d Cir.) (firing round from semi-automatic handgun is not use of "an explosive" within §844(h)). (H/T)
• U.S. v. White (2d Cir) (felon-in-possession defendant had right to present evidence regarding state authorities' charging decisions about others caught in same vehicle, which tended to discredit arresting officer's claim that defendant had personal control of gun). (H/T)
• U.S. v. Davis (2d Cir.) (defendant's struggle to free himself after officers pinned him to the ground was not resisting arrest under §111). (H/T)
• U.S. v. Shavers (3d Cir.) (defendant's witness tampering was directed at preventing testimony in state proceedings, so there was no federal nexus even if federal proceeding might have been foreseeable). (H/T)
• U.S. v. Horton (4th Cir.) (application of murder cross-reference guideline to murder that occurred during course of unrelated, uncharged offense was error. (H/T)
For the Bookworms - New books and scholarly articles of note.
• "Florence, Atwater & the Erosion of Fourth Amendment Protections for Arrestees," Julian Simcock, Stan. L. Rev. (forthcoming) (SSRN).
• "Batson 'Blame' and Its Implications for Equal Protection Analysis," Robin Charlow, Iowa L. Rev. (SSRN) (proposes an "antibalkanization" rationale for finding "blameless" Batson violations).
• "Do Sexually Violent Predator Laws Violate Double Jeopardy and Substantive Due Process: An Empirical Inquiry," Tamara Rice Lave & Justin McCrary, working paper (SSRN) (presents findings suggesting that SVP laws have no discernible impact on incidence of sex crimes, undermining their only constitutionally permissible justification).
• "Presumed Guilty," Terrence Cain, working paper (SSRN) (argues that the Apprendi line casts doubt on the validity of statutory presumptions in criminal cases).
• "Madness Alone Punishes the Madman: The Search for Moral Dignity in the Court's Competency Doctrine as Applied in Capital Cases," Amy Dillard, Tenn. L. Rev. (SSRN) (argues that "borderline" defendants incompetent to proceed to trial without counsel should be categorically exempted from death).
• Disrobed: An Inside Look at the Life and Work of a Federal Trial Judge, Frederick Block (Amazon).
• More Essential than Ever: The Fourth Amendment in the Twenty First Century, Stephen J. Schulhofer (Amazon).