9th Circuit Criminal Law News - U.S. Ninth Circuit
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Want Federal Habeas Review? It Just Got Easier in the 9th Circuit

The 9th Circuit clarified the law for misdemeanants seeking Habeas Review this Wednesday. The court en banc overruled its own 1995 decision, Larche v. Simons, requiring misdmeanants in California to exhaust all available state remedies before seeking Federal Habeus review by filing a petition in California's highest court.

The circuit found that Larche created "needless confusion for California misdeamants seeking federal habeas review," particularly in wake of the Antiterrorism and Effective Death Penalty Act (AEDPA). Further, the panel found that the Larche unduly restricted California's ability to dictate its appellate review system. The court found that because McMonagle relied on the Larche to fully exhaust his California remedies before seeking federal habeas review, he was entitled to have his case reviewed, given the circumstances of the case.

You can still be sentenced to death in California, but you can't be executed -- not since a surprise ruling last year struck down the state's death penalty program as unconstitutional. The program wasn't struck down because executions are inherently cruel punishment, but because the state was too slow to kill death row prisoners.

That case is now before the Ninth Circuit, which will decide whether the state's sluggish and arbitrary death penalty system is so dysfunctional that it's unconstitutional.

Brett Pensinger, a teen-aged killer who was sentenced to death for the kidnapping and murder of a five-month-old more than 30 years ago, won't be executed after the Ninth Circuit overturned his death sentence on Tuesday. In 1981, the 19-year-old Pensinger kidnapped a San Bernadino infant and her brother. The brother was dropped off unharmed, but the infant was found murdered and mutilated.

Pensinger was subsequently convicted of murder, with a kidnapping and torture enhancement, and sentenced to death. However, the jury was given improper instructions, leading to the overturning of his sentence many years later.

Idaho's ban on abortions that occur after 20 weeks of pregnancy has been struck down as unconstitutional by the Ninth Circuit. That law placed an arbitrary time limit on abortions before viability, the Court found, and violated women's constitutional right to obtain an abortion before fetal viability.

The case arose after Idaho prosecuted a single mother of three for inducing her own abortion. The Ninth had recently struck down a similar law in Arizona, but several other states have enacted laws limiting abortion after the 20th week of pregnancy.

Jury instructions that impermissibly merged first-degree murder's mens rea elements violated due process, the Ninth Circuit ruled last Friday. As a result, they invalidated the 1990 murder conviction and death sentence of Billy Ray Riley based on faulty jury instructions.

The guilt-phase instructions advised the jury that if it found premeditation, it has found deliberation. Those are two separate elements, however, and the state needed to prove each one, according to the Ninth.

Her Royal Highness isn't entitled to any restitution from an Australian criminal who bilked the U.S. and Canada out of millions in a fraudulent biodiesel scheme. Nathan "Nati" Stoliar has been described by The Australian as a "Forrest Gump-style character" of Down Under's "corporate sleaze set." Last year, he pled guilty to defrauding the U.S. government, forfeited $4 million and agreed to pay $1 million in restitution. Stoliar, whose name should have given him away, could face up to 69 years in prison and an additional $2 million in fines.

And the Queen wants her share. Since Canada was also a victim of Stoliar's, the Canadian Department of Justice, in Her name, sought restitution in federal court for a little over $1 million (Canadian). Unfortunately, Stoliar's scams were too separate to entitle Canada to restitution for his U.S. crimes, the Ninth Circuit ruled on Tuesday.

A California high school student won't be going to prison for 30 months for shooting a laser pointer at a small aircraft, the Ninth Circuit ruled on Thursday. Adam Gardenhire, the kid who shined his friend's laser pointer at a Cessna airplane as it approached L.A.'s Burbank Airport in 2012, wasn't reckless, the court said, since he lacked knowledge of the risks he was creating.

Gardenhire will now face no more than ten months for his crime of endangering an aircraft. That should give him plenty of extra time to use lasers as they're intended -- to trick cats.

A sentencing enhancement for committing a sexual act can be applied to child sex trafficking charges, the Ninth Circuit held on Tuesday. So can enhancements for undue influence, even if the victims entered into the arrangement voluntarily.

The case involved Tamrell and Tynisha Hornbuckle, sisters who ran a prostitution ring with both underage and adult women. They were eventually caught as part of an FBI sting and pled guilty to two counts of child sex trafficking. They challenged the application of the two enhancements to their sentences.

FBI Can't Cut DSL Line, Pose as Repairmen to Conduct Search

Last year, we brought you the bizarre story of an FBI sting into illegal gambling at some of the private villas at Caesar's Palace in Las Vegas. But how did the FBI get the probable cause necessary to support search warrants leading to their arrest?

Illegally, according to lawyer and SCOTUSblog co-founder Tom Goldstein, who represents Wei Seng Phua, one of the defendants. Last week, a federal district court agreed with Goldstein that  evidence obtained from the illegal search must be suppressed.

Marijuana will remain on the federal list of Schedule I drugs, next to heroin and LSD. After a five day evidentiary trial, the District Court for the Eastern District of California denied a motion to dismiss an indictment involving marijuana growing, which challenged the classification was unconstitutional.

Under the Controlled Substances Act, Schedule I drugs are those which have a high potential of abuse and "no currently accepted medical use." Defense lawyers for 16 men accused of growing marijuana challenged the listing of marijuana as a Schedule I drug, arguing that it violated the Tenth Amendment's limitations on federal power. Marijuana is legal for medical use in 23 states.