Recently in Criminal Law Category

Defendant's conviction for possession of a firearm "in furtherance of" a drug trafficking offense in violation of 18 U.S.C. section 924(c) is affirmed where, when one accepts a gun in exchange for drugs, the gun is an integral part of the drug sale because without the gun -- the "currency" for the purchase -- the drug sale would not take place.

Read US v. Mahan, No. 08-30475

Appellate Information

Argued and Submitted October 6, 2009

Filed November 16, 2009

Judges

Opinion by Judge O'Scannlain

Counsel

For Appellant:

Terri Wood, Eugene, OR

For Appellee:

Frank R. Papagini, Jr., Karin J. Immergut, Assistant United States Attorneys for the District of Oregon, Eugene, OR

Defendant's conviction for illegal reentry into the U.S. is affirmed where, because defendant had not legally left the U.S. on the date of his detention, and he was not entering the U.S. from a foreign country, the official restraint doctrine was inapplicable.

Read US v. Ambriz-Ambriz, No. 08-30431

Appellate Information

Argued and Submitted October 13, 2009

Filed November 10, 2009

Judges

Opinion by Judge Callahan

Counsel

For Appellant:

John Rhodes, Johnna Rizza and Stephanie Deboer, Federal Defenders of Montana, Missoula,
MT

For Appellee:

Timothy J. Racicot, Assistant United States Attorney, Missoula, MT

In an appeal from a district court's denial of defendant's motion to suppress drug and firearm evidence against him, the order is affirmed where the district court did not err in holding that the drugs and firearm would have been uncovered during a routine inventory search of the vehicle upon impound.

Read US v. Ruckes, No. 08-30088

Appellate Information

Submitted November 9, 2009

Filed November 9, 2009

Judges

Opinion by Judge Tallman

Counsel

For Appellant:

Miriam Schwartz, Office of the Federal Public Defenders for the Western District of Washington, Tacoma, WA

For Appellee:

Jeffrey C. Sullivan and Helen J. Brunner, Assistant United States Attorneys, Seattle, WA
for the plaintiff-appellee.

The Ninth Circuit re-states its "abuse of discretion" standard of review, which now requires it to: 1) consider whether the district court identified the correct legal standard for decision of the issue before it; and 2) determine whether the district court's findings of fact, and its application of those findings of fact to the correct legal standard, were illogical, implausible, or without support in inferences that could be drawn from facts in the record.  Defendant's murder for hire conviction is affirmed where, applying the re-stated standard, the district court did not abuse its discretion in denying defendant's motion for a new trial.

Read US v. Hinkson, No. 05-30303

Appellate Information

Argued and Submitted December 16, 2008\

Filed November 5, 2009

Judges

Opinion by Judge Bea

Dissent by Judge B. Fletcher

Counsel

For Appellant:

Dennis P. Riordan and Donald M. Horgan, San Francisco, CA

For Appellee:

John F. De Pue and Michael D. Taxay, Department of Justice, Washington, DC

Defendant's alien smuggling conviction is vacated where police unreasonably delayed defendant's arraignment before a magistrate judge to conduct a second interrogation in violation of 18 U.S.C. section 3501(c).

Read US v. Liera, No. 07-50546

Appellate Information

Argued December 10, 2008

Submitted May 5, 2009

Judges

Opinion by Judge Pregerson

Counsel

For Appellant:

Steven F. Hubacheck, Federal Defenders of San Diego, San Diego, CA

For Appellee:

Mark R. Rehe and Bruce R. Castetter, Assistant U.S. Attorneys, San Diego, CA

In a drug conspiracy prosecution, the denial of defendant's motions to suppress is affirmed where: 1) the government's application to wiretap defendant's residence contained a full and complete statement as to whether or not other investigative procedures would be successful; 2) the issuing judge did not abuse his discretion in finding that the wiretap was necessary; and 3) the district court erred in finding a lack of probable cause to search defendant's residence.

Read US v. Garcia-Villalba, No. 05-30506

Appellate Information

Argued and Submitted July 6, 2009

Filed November 2, 2009

Judges

Opinion by Judge O'Scannlain

Counsel

For Appellant:

Brooks Holland, Gonzaga University School of Law, Spokane, WA

For Appellee:

Michael S. Morgan, Assistant United States Attorney, Seattle, WA

In a drug possession prosecution, denial of petitioner's habeas petition is affirmed where, in view of the relatively low number of peremptory challenges that the prosecutor exercised against African-American jurors, the prosecutor's ability to justify her other peremptory challenges with specificity and to the state court trial judge's satisfaction, as well as the fact that two African-American jurors remained on the jury and a third was a prospective juror, the state court of appeal's denial of petitioner's Batson claim was not contrary to Supreme Court precedent or an objectively unreasonable application of such precedent.

Read Gonzalez v. Brown, No. 07-56107

Appellate Information

Argued and Submitted August 31, 2009

Filed October 30, 2009

Judges

Opinion by Judge Gould

Counsel

For Appellant:

Shawn R. Perez, Law Offices of Shawn R. Perez, Las Vegas, NV

For Appellees:

David F. Glassman, Office of the Attorney General of California, Los Angeles, CA

In defendant's appeal from a denial of his motion to dismiss his indictment for illegal reentry into the U.S. by a deported alien, the district court's order is affirmed where: 1) an Immigration Judge (IJ) is not required to act creatively to advise an immigrant of ways in which his legal prospects at forestalling deportation might improve with fundamental changes in his status; 2) the IJ's failure to inform defendant of his section 212(c) options did not prejudice him because he was not entitled to a section 212(c) waiver due to his commission of an aggravated felony; and 3) the IJ was not obligated to grant indefinite continuances if defendant did not produce counsel but refused to waive his right to counsel.

Read US v. Moriel-Luna, No. 08-50124

Appellate Information

Argued and Submitted August 31, 2009

Filed October 29, 2009

Judges

Opinion by Judge Gould

Counsel

For Appellant:

Douglas F. McCormick, Michael J. Raphael, Office of the U.S. Attorney, Santa Ana, CA

For Appellee:

Jonathan D. Libby, Federal Public Defender's Office, Los Angeles, CA

In a prosecution arising from defendants' conduct relating to their business of sending unsolicited email, or spam, advertising adult websites, defendants' electronic mail fraud convictions and sentences are affirmed where: 1) no authority supported defendants' notion that a district court must provide a clear geographic definition of the relevant community in an obscenity prosecution; 2) a national community standard must be applied in regulating obscene speech on the Internet, but the district court's failure to instruct on this standard was not plain error; 3) defendants' as-applied vagueness challenge to the CAN-SPAM Act failed even applying a heightened requirement of clarity; and 4) the district court properly concluded that one defendant's related lawsuit was meritless and amounted to obstruction of justice.

Read US v. Kilbride, No. 07-10528

Appellate Information

Argued and Submitted June 8, 2009

Filed October 28, 2009

Judges

Opinion by Judge B. Fletcher

Counsel

For Appellants:

Gary Jay Kaufman, Dana Milmeister, and Colin Hardacre, The Kaufman Law Group

For Appellee:

Jill Trumbull-Harris and Bonnie L. Kane, United States Department of Justice, Washington, DC

Defendant's conviction and sentence for assaulting a federal officer with a dangerous weapon is affirmed where: 1) a district court does not abuse its discretion in refusing to give an instruction on a lesser included offense, where, as here, a rational jury could not have convicted the defendant of the lesser-included offense without finding the element that would convert the lesser offense into the greater offense; and 2) the district court did not commit clear error in finding on sentencing that defendant's conduct was motivated by the victim's official status.

Read US v. Rivera-Alonzo, No. 08-10081

Appellate Information

Argued and Submitted February 9, 2009

Filed October 26, 2009

Judges

Opinion by Judge Smith

Counsel

For Appellant:

Alex D. Gonzalez, Gonzalez & Smith, PC, Chandler, AZ

For Appellee:

Karla H. Delord, Assistant United States Attorney for the District of Arizona, Phoenix, AZ