(Cross-posted from the C.D. Cal. Federal Public Defender Blog.)
In This Edition:
We're from the Government, and We're Here To Win. In the wake of Internet activist Aaron Swartz's death, Radley Balko agitates about and the power of the prosecutor. Congress doesn't seem too keen on the DOJ's handling of the matter either.
Incarceration and Mental Health. Berman flags new research exploring connections between the two, here.
The Week in Gunn. More tips from Carl this week on how to challenge computer searches.
Top of the Ninth - 9th Cir. decisions released during the week.
• U.S. v. Vidal-Mendoza (in collateral challenge to removal order, defendant could not establish apparent eligibility for relief from order based on post-removal change in law, where new law "deviated" or "sharply departed" from prior precedent rather than clarifying it).
• U.S. v. Hardeman (enhancement under §2260A as applied to offense committed while under state law duty to register as sex offender does not violate Ex Post Facto Clause, even if that duty arose retroactively).
• U.S. v. Jensen (to determine maximum prison term for failure to appear for service of sentence after revocation, court looks to underlying criminal offense rather than intervening violation). UPDATE (1.30.13): Ninth Circuit Blog's analysis here.
• U.S. v. Gallegos-Galindo (in light of guidelines amendment that includes as "forcible" any sex offense involving absence of victim's consent, defendant's prior conviction here for third-degree rape under Washington state law qualified as such).
• U.S. v. Zepeda (whether Indian tribe is federally recognized within 18 U.S.C. §1153 is fact for jury, not question of law) (court would not take judicial notice of Bureau of Indian Affair's list of federally recognized tribes) (certificate of enrollment in Indian tribe is insufficient to prove defendant an Indian).
• Hurles v. Ryan (§2254) (new opinion supersedes prior opinion, but leaves standing affirmance of district court grant of habeas).
• Boyer v. Louisiana (whether five-year delay caused by state's failure to fund counsel for indigent defendant after seeking death penalty should count for speedy trial purposes).
• Alleyne v. U.S. (whether Harris should be overruled).
Short Circuits (and Solid States).
• U.S. v. Catchings (6th Cir.) ("relevant conduct" under guidelines is limited to criminal conduct) (conduct here - having victim of scheme open accounts in name of business - was not criminal). (H/T)
• U.S. v. Greene (4th Cir.) (admission of bank teller's testimony, elicited from her by district court instruction to tell jury what "similarities" she saw between defendant, before her in courtroom, and person who took money from her during bank robbery, was erroneous, though harmless here). (H/T)
• U.S. v. Hall (11th Cir.) (unlawful or unauthorized transfer or sale of identifying information is not, per se, "use" for "fraudulent purpose" within §2B1.1). (H/T)
• Littlejohn v. Trammell (10th Cir.) (ordering evidentiary hearing on pre-AEDPA IAC claim for failure to investigate evidence of brain damage).
• U.S. v. Burgos (1st Cir.) (evidence was insufficient to show defendant police officer knew of or was willfully blind to drug conspiracy, despite "warning signs that something illegal was afoot).
• U.S. v. Fraga (unexplained lifetime supervised release for sex offender was unreasonable). (H/T)
• U.S. v. McMurtrey (11th Cir.) (conflicting warrant affidavits required Franks hearing). (H/T)
For the Bookworms - New books and scholarly articles of note.
• "Punishment Without Culpability," John F. Stinneford, J. Crim. L. & Criminology (2012) (SSRN) (argues for return from procedural focus in constitutional criminal law to more substantive conception based on common law synthesis, in areas like mens rea, proportionality in sentencing, and the civil-criminal distinction).
• "Manson and its Progeny: An Empirical Analysis of American Eyewitness Law," Nicholas Alden Kahn-Fogel, Ala. Civ. Rights & Civ. Liberties L. Rev. (2012) (SSRN) (reviews the state of science of eyewitness ID reliability and courts' failure to keep the gate).
• "Inefficient Evidence," Alex Stein, working paper (2013) (SSRN) (suggests "signal-to-noise" method as means to explain, justify, and regulate rules of admissibility and corroboration).
• "Not So Sweet: Questions Raised by Sixteen Years of the PLRA and AEDPA," Michael M. O'Hear, Fed. Sent'g Rep. (2012) (SSRN) (considers extent to which the titular statutes highlight structural flaws in political and legal systems' engagement with prisoner litigation).
• "Decoupling Federal Offense Guidelines from Statutory Limits on Sentencine," Kevin Bennardo, working paper (2013) (SSRN).
• "Legal Process Requirements for Cloud Forensic Investigations," Ivan Orton et al., from Cybercrime and Cloud Forensics (forthcoming) (SSRN).
• Note - "DNA Profiles, Computer Searches, and the Fourth Amendment," Catherine W. Kimel, Duke L.J. (2013) (abstract) (argues that each run on a DNA database is a Fourth Amendment search).
Suggestions or corrections? Email Michael Drake.