(X-posted from the C.D. Cal. Federal Public Defender Blog.)
In This Edition (to use bookmarks, first click blog post title):
Lead & Crime. "New research finds Pb [i.e., lead] is the hidden villain behind violent crime, lower IQs, and even the ADHD epidemic." Kevin Drum writes for Mother Jones. Drum also has this interesting supplement to the main article, focusing on earlier data based on lead paint-use plotted against data on murder rates.
New Rules. In case you missed the "blast," two new procedures instituted in the Ninth Circuit. First, telephonic requests to extend time to file briefs will be phased out in favor of a streamlined request via ECF. Second, electronic submission of excerpts is now encouraged, and will be required as of March 1. (Paper copies will still be required, as before.)
Top of the Ninth - 9th Cir. decisions released during the week.
• U.S. v. Pleasant (defendant was not eligible for §3582(c)(2) sentence reduction under Fair Sentencing Act guideline amendment because the "applicable guideline range" in his case was the Career Offender range specified in plea agreement).
• U.S. v. Yi (in Clean Air Act case, district court did not err in giving or formulating deliberate ignorance jury instruction, in applying sentence enhancement for substantial likelihood of death or serious bodily injury, or in applying organizer/leader role enhancement).
• U.S. v. Xu (in RICO case, crimes were not "extraterritorial" because enterprise, though foreign-based, involved racketeering activities in United States, namely, immigration fraud) (evidence was sufficient for money laundering and transportation conspiracies, which did not require government to trace any actual transactions, and jurisdictional requirements were met because transactions occurred in United States) (videotaped testimony at trial was properly handled, and Confrontation Clause was not violated) (challenges to jury instructions that related to burden shifting, Chinese law, variance/constructive amendment, theory of defense, aiding and abetting, "on or about," and incomprehensibility of Chinese names presented to jury were "meritless") (applying 2007 guidelines for conspiracy that ended in 2004 was not ex post facto violation) (foreign conduct here should not have been counted as relevant conduct under the guidelines). Ninth Circuit Blog's analysis here.
• U.S. v. Phillips (mailing of watch purchased with funds derived from scheme was not relevant use of mails for mail fraud) (earnest-money deposit and down payment on condominium were classic money laundering transactions peripheral to fraudulent scheme, so that government did not need to prove, and jury did not need to be instructed, that "proceeds" meant "profits" rather than "gross receipts") (prosecutor's statements in closing argument about defendant's "lying" were not improper) (release condition that defendant not "frequent places where controlled substances are illegally sold..." etc. was not vague or overbroad) (Apprendi does not require jury finding for money forfeiture under §2461(c)). Ninth Circuit Blog's analysis here.
• U.S. v. Lee (first of two convictions under California Health & Safety Code §11352(a) was pleaded in conjunctive and therefore did not qualify as career offender prior) (second conviction did qualify on modified categorical analysis, despite district court's failure to make special findings and despite "transport or sell" language on form abstract of judgment).
• Henderson v. Johnson (§2254) (district courts still must grant leave to amend mixed petitions to delete unexhausted claims, notwithstanding Sherwood v. Tomkins, and in any case all claims here were exhausted).
SCOTUS Focus. The Court granted cert in U.S. v. Davila, which concerns whether any degree of judicial participation in plea negotiations automatically requires vacatur of a defendant's plea. The Court will hear argument next week in Descamps v. U.S. on (basically) whether Aguila Montes de Oca gets the modified categorical approach right; SCOTUSblog previews the case here.
• U.S. v. Caronia (2d Cir.) (encouraging people to put FDA-approved drugs to non-approved use is not "misbranding"). (H/T)
• Swart v. Insogna (2d Cir.) (civil) (flipping bird at police is not disorderly conduct). (H/T)
• U.S. v. Watson (4th Cir.) (three-hour detention of building occupant without probable cause while police obtained warrant was unreasonable). (H/T)
• U.S. v. McRae et al. (5th Cir.) (in case involving three defendant police officers convicted of offenses arising out of death in the wake of Katrina, one was improperly denied severance from codefendants' trial, another was convicted on insufficient evidence, and third was properly granted new trial). (H/T)
• U.S. v. Sharma (5th Cir.) (restitution amount in healthcare fraud case was based in part on victim impact statements claiming losses outside the charged period). (H/T)
• U.S. v. Ross (6th Cir.) (defendants may not waive counsel at competency hearing). (H/T)
• U.S. v. Cochrane (6th Cir.) (in felon in possession case, failure to explain consecutive sentencing was abuse of discretion). (H/T)
• U.S. v. Engelmann (8th Cir.) (district court abused discretion by denying request for evidentiary hearing in light of alleged conversation between government witnesses in apparent violation of sequestration order). (H/T)
• U.S. v. Grimes (8th Cir.) (harassment counts based on repeated messages defendant left over six days were multiplicitous because calls were part of single ongoing course of conduct). (H/T)
• U.S. v. Santistevan (10th Cir.) (non-English-speaking defendant unambiguously invoked right to counsel by handing agent letter from defense counsel that stated defendant did not want to speak without counsel present). (H/T)
• U.S. v. Lott (D. Vt.) (SORNA registration is invalid under Commerce Clause as interpreted in NFIB v. Sebelius, though district court here was still bound by Second Circuit law to the contrary).
The Week in Sausage Making. New public laws include H.R. 5949 (extends FISA amendments); H.R. 6029 (NB - may be awaiting President's signature) (increased penalties for foreign and economic espionage).
For the Bookworms - New books and scholarly articles of note.
• "Real-time and Historic Location Surveillance after United States v. Jones: An Administrable, Mildly Mosaic Approach," Stephen E. Henderson, J. Crim. L. & Criminology (forthcoming) (SSRN).
• "Putting Desert in Its Place," Christopher Slobogin & Lauren Brinkley-Rubinstein, Stan. L. Rev. (2013) (SSRN) (argues that if crime control is the objective, the criminal justice system is better off pursuing utilitarian goals rather than relying on desert as its linchpin).
• "Full Disclosure: Cognitive Science, Informants, and Search Warrant Scrutiny," Mary Bowman, working paper (SSRN) (examines how cognitive biases can affect each stage of the search warrant process, and suggests procedural checks and revised standards for review).
• "The Presumption of Punishment," Shima Baradaran, from Criminal Law & Philosophy, forthcoming (SSRN) (argues that due process requires that judges not determine facts or punish individuals before a trial has occurred).
• "Confronting Coventurers: Coconspirator Hearsay, Sir Walter Raleigh, and the Sixth Amendment Confrontation Clause," Ben Trachtenberg, 64 Fl. L. Rev. 1669 (2012) (SSRN) (argues against confining the Crawford doctrine to testimonial statements).
• "Incarceration's Incapacitative Shortcomings," Kevin Bennardo, working paper (SSRN).
• "The Anatomy of Discretion: An Analysis of Prosecutorial Decision Making," National Institute of Justice report (2012) (pdf) (study based on data collected from two county prosecutor offices).
• "After United States v. Jones, After the Fourth Amendment Third Party Doctrine," Stephen E. Henderson, N.C. J. L. & Tech. (2013) (SSRN).
• "Ending the Zero-Sum Game: How to Increase the Productivity of the Fourth Amendment," Ric Simmons, Har. J. L. & Pub. Pol'y (2012) (SSRN) (analyzes the "productivity" of different surveillance methods, and offers suggestions for positive-sum improvements).
• "Military Veterans, Culpability, and Blame," Youngjae Lee, Crim. L. & Phil. (2013) (SSRN) (argues that rather than respect for military service or peculiar stresses that attend combat, the reason military veterans may be less culpable is the State's own hand in producing his criminality).
• "Narrative, Truth & Trial," Lisa Kern Griffin, 101 Geo. L.J. 281 (2012) (SSRN) (argues that the "story model" of narrative's function at trial is incomplete, and adopts a hybrid framework to bring out sources of bias and error and suggest improvements in trial mechanics).
• "Challenges and Opportunities in Bringing the Lessons of Cultural Competence to Bear on Capital Jury Selection," Bidish Sarma, 42 U. Mem. L. Rev. 907 (2012) (SSRN).
• "Repudiating the Narrowing Rule in Capital Sentencing," Scott Howe, BYU L. Rev. (2012) (SSRN).
• "'Children are Different': Constitutional Values and Justice Policy," Elizabeth S. Scott, Oh. St. J. Crim. L. (2013) (SSRN) (draws four lessons from Miller and Graham)).
• "Crime, Punishment, and Politics: An Analysis of Political Cycles in Criminal Sentencing," Carlos Berdejo & Noam Yuchtman, Rev. Econ. & Stat., forthcoming (SSRN) (presents evidence that sentencing discretion of elected judges is influenced by political pressures).
• The Supreme Court and the Fourth Amendment's Exclusionary Rule, Tracy Maclin, Oxford U. Press (2012) (Amazon).
Suggestions or corrections? Email Michael Drake.