(X-posted from the C.D. Cal. Federal Public Defender Blog.)
In This Edition (to use bookmarks, first click blog post title):
Sample Sentencing Materials. The good folks at Defender Services have posted a new sample sentencing memo in a child pornography case, addressing both Congressional directives and the Commission's own reasoning for the guidelines. It's here.
At the Printers. If you've noticed something . . . different about the Ninth Circuit's slip opinions, it's because they've in-sourced their opinion processing. Says Ninth Circuit Clerk of Court Molly Dwyer, "The formatting change reflects the growing use of tablet devices by both bench and bar."
The Fortnight in Gunn. Carl Gunn explains how to find the sorts of "working arrangements" between state and federal authorities that will bring your client's case within the McNabb-Mallory rule. UPDATE (12.10.12): In a follow-up post here, Carl highlights some briefing in this area by our own Alex Yates.
Pink Unicorns and Compassionate Release. Human Rights Watch and Families Against Mandatory Minimums have released a new report on compassionate release ("The Answer Is No: Too Little Compassionate Release in US Federal Prisons"). (H/T Berman.)
DSM-5: It's Final. The APA Board of Trustees has approved the DSM-5. Major changes include giving up Roman numerals in the title. A run-down of the other changes is available at Psychiatric News. (H/TMind Hacks.)
Top of the Ninth - 9th Cir. decisions released during the week.
• U.S. v. Wiggan (district court abused discretion by admitting grand jury foreman's testimony that defendant wasn't credible) (district court did not err in determining defendant had not recanted grand jury testimony) (evidence of perjury was sufficient).
• U.S. v. Munguia (district court erred in refusing defendant jury instruction that "reasonable cause to believe" drugs were used to manufacture meth is evaluated from defendant's perspective).
• U.S. v. I.E.V., Juvenile Male (frisk of passenger based on dog alert of car was unjustified at inception and exceeded appropriate scope). See Ninth Circuit Blog.
• U.S. v. Catalan (guideline amendment clarified rather than altered existing law that probation revocation served after deportation is not "sentence imposed" under §2L1.2(b)(1)(B), and district court here thus erred in treating it as one).
• U.S. v. Lawson (mem. dispo.) (hidden beeper that prematurely emitted continuous tone (and possibly alerted defendant to its presence in home) neither "fail[ed] to transmit" within warrant's provisions nor amounted to "exigent circumstance"). (H/T)
• U.S. v. Scott (defendant did not waive or forfeit argument that government waived its own automobile exception) (government did not waive automobile exception argument by not filing written response to suppression motion, and exception applied here).
• U.S. v. Oseguera-Madrigal (in collateral attack on deportation, Washington state conviction for use of drug paraphernalia "relat[ed] to a controlled substance," and immigration judge did not violate due process in failing inform defendant of possible waiver for which he was plainly ineligible) (below-guideline sentence was substantively reasonable).
• U.S. v. Manning (lying to pretrial services about possession of firearms, failing to appear for pretrial revocation hearing, and fleeing to Mexico was obstruction under §3C1.1, despite recantation and intention to obstruct only prior case in which defendant was on release). See Ninth Circuit Blog.
• U.S. v. Wahchumwah (warrantless use of concealed audio-video recorder by agent invited into home does not violate Fourth Amendment) (counts charging Lacey Act violations of offering to sell prohibited eagle body parts were lesser-included in counts charging their sale, and therefore multiplicitous) (admission of photos of eagle body parts did not violate FRE 403) (officer testimony about complaints received that defendant was selling eagles, offered to explain investigation of defendant, did not violate Confrontation Clause).
• U.S. v. Arias-Espinosa (district court's statement that defendant "may have a right to appeal" was ambiguous and so did not vitiate written plea waiver).
• Stokley v. Ryan (habeas) (order amending opinion and denying panel reh'g).
• Stokley v. Ryan (habeas) (order denying en banc reh'g of order denying stay in capital case, with dissents from denial by Judge Reinhardt (joined by six judges), Fletcher (joined by five), Watford (joined by eight), and Pregerson).
• Miles v. Martel (habeas) (order withdrawing opinion by parties' stipulation, directing entry of writ of release).
SCOTUS Focus. The Court heard argument in Henderson v. U.S. (Whether "plain error" is assessed by law applicable at time of appeal or instead at time of trial). The Court denied review in Hodge v. Kennedy (whether Kentucky Supreme Court properly applied Strickland prejudice prong), drawing a ten-page dissent from Justice Sotomayor. Another denial, in Delling v. Idaho (whether insanity defense is constitutionally required), drew a dissent from Justice Bryer, joined by Justices Ginsberg and Sotomayor.
Short Circuits (and Solid States).
• U.S. v. Cameron (1st Cir.) (in child pornography case, admission of ISP's internal reports of child pornography violated Confrontation Clause). (H/T)
• U.S. v. Coplan et al. (2d Cir.) (evidence in tax fraud case was insufficient to show intent to defraud and obstruction of IRS). (H/T)
• U.S. v. Bailey (8th Cir.) (district court was required to give appellant opportunity to assert civil damages claim, where court had denied defendant's motion under Fed. R. Crim. P. 41 for return of property because government no longer possessed it). (H/T)
• U.S. v. Delgado (7th Cir.) (warrantless search was not valid protective sweep or justified by exigency, and government's waiver of opportunity to put on additional proof is binding on remand). (H/T)
• U.S. v. Laraneta (7th Cir.) (Posner, J.) (in child porn case, remand was required to determine whether defendant uploaded any images, and to determine victim's losses net of previous restitution payments received in previous cases) (general restitution statute does not permit joint and several liability where there is only one defendant).
• U.S. v. Duran (11th Cir.) (in connection with restitution order, district court erred in failing to adjudicate motion by defendant's wife to dissolve or stay writ of execution, where she claimed sole ownership of apartment before prosecution). (H/T)
The Week in Sausage Making. Enrolled bills signed include H.R. 6063 (Child Protection Act, increases statutory maximum on possession and exploitation offenses), which now goes to the President.
For the Bookworms - New books and scholarly articles of note.
• "'Bad Juror' Lists and the Prosecutor's Duty to Disclose," Ira P. Robbins," Cornell J.L. & Pub. Pol'y (2012) (SSRN).
• "Federal Immigration Detainers after Arizona v. United States," Christopher N. Lasch, Loy. L.A. L. Rev. (forthcoming) (SSRN) (argues that the Arizona decision implies that immigration detainers exceed Congressional grants of authority and conflict with Fourth Amendment principles).
• "Prosecutors and Professional Regulation," Bruce A. Green, Geo. J. Legal Ethics (2012) (SSRN).
• "McCklesky's Omission: The Racial Geography of Retribution," G. Ben Cohen, Ohio St. J. Crim. L. (2012) (SSRN).
Suggestions or corrections? Email Michael Drake.