(X-posted from the C.D. Cal. Federal Public Defender Blog.)
In This Edition:
Minimization to the Max. Dan Broderick returns as guest poster at Carl Gunn's blog, following up on last week's post about wiretaps. This time around, he looks at the red flags that suggest some minimization analysis, and lays out some of the nuts and bolts of mounting a minimization challenge.
Top of the Ninth - 9th Cir. decisions released during the week.
• U.S. v. Preston (in abusive sexual contact case, defendant's confession was properly admitted despite diminished mental capacity, and despite length, location, and continuity of interview) (waiver of indictment and jury trial was valid) (court's acceptance of counsel's waiver of confrontation rights was not plain error) (expert testimony about DNA evidence was properly admitted) (other testimony was properly admitted excited utterance) (improper hearsay by investigating officer was harmless) (so was any prosecutorial misconduct) (evidence was not plainly insufficient) (in sentencing, court failed to make findings to support plethysmograph testing, failed to clarify condition that defendant not use certain types of material deemed inappropriate by probation officer or treatment provider, and failed to include mens rea requirement in condition prohibiting accompanying children under 18) (though lifetime term was procedurally reasonable, panel suggested court consider prosecutor's alternative on remand). Update (2.26.13): Ninth Circuit Blog's analysis here.
• U.S. v. Stone (even after Flores-Figueroa, felon-in-possession conviction doesn't require knowledge that firearm traveled in interstate commerce).
• U.S. v. Petri (amendments to now Rule 32(i)(3)(B) did not broaden its scope, which is still restricted to factual objections to presentence report) (district court adequately addressed defendant's claim that his role and his profit from offense were insignificant). UPDATE (2.11.13): Ninth Circuit Blog's analysis here.
• Cannedy v. Adams (§2254) (evidence taken by district court was Pinholster-barred, but California Supreme Court nevertheless unreasonably rejected IAC claim) (Richter did not alter look-through doctrine, because denials of discretionary review are not "merits" decisions).
• Smith v. Hedgepath (§2254) (there's no CEFL that state sentence enhancements are elements of state offense for Blockburger purposes).
• Dyer v. Hornbeck (§2254) (state court decision that petitioner was "in custody" was reasonable, if "troubl[ing]") (concurring, Smith explains that but for AEDPA deference, he would have found Miranda violation).
• U.S. v. Castro (3d Cir.) (defendant's true statement that he had not received money from particular person - in fact, he'd received it from FBI - was not false statement under §1001, even if he clearly believed it was false and intended by it to lie). (H/T)
• U.S. v. Vernon (5th Cir.) (inventory invalid where government failed to enter policy into evidence). (H/T)
• U.S. v. Quail (6th Cir.) (district court failed to make Rule 32 finding after defendant challenged PSR allegation that he'd sexually abused minor involved in child pornography offense). (H/T)
• U.S. v. McMurtrey (7th Cir.) (district court's permitting government to offer additional evidence at truncated "pre-Franks" hearing triggered right to full Franks hearing, which district court erroneously failed to hold). (H/R)
The Week in Sausage Making. Measures introduced include H.R. 499 (would decriminalize marijuana); S. 223/H.R. 490 (would "modify" immigration visa waiver program [no bill text as of this writing]); H.R. 457 (would impose mandatory minimums for illegal reentry).
For the Bookworms - New books and scholarly articles of note.
• "Interpreting Regulations," Kevin M. Stack, 111 Mich L. Rev. 355 (2012) (pdf) (argues that in interpreting regulations, purposive approach is better than textual approach).
• "Livelihood, Ability to Pay, and the Original Meaning of the Excessive Fines Clause: Rediscovering the Eighth Amendment's 'Economic Survival' Norm," Nicholas M. McLean, Hastings Const. L.Q. (2013) (SSRN).
• "Lafler and Frye: Good News for Public Defense Litigation," Cara H. Drinan, Fed. Sent'g Rep. (2012) (SSRN) (argues that the titular cases reflect a turn toward judicial realism, which may remove barriers to systemic public defense litigation).
• "Criminal Capacity and the Teenage Brain: Insights from Neurological Research," Warren Binford (SSRN) (highlights recent U.S. Supreme Court decisions that appear to have been influenced by latest neuroscientific research).
Suggestions or corrections? Email Michael Drake.