Articles Posted in U.S. 9th Circuit Court of Appeals

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Defendant pleaded guilty to two counts of domestic assault by a habitual offender in violation of 18 U.S.C. 117(a). On appeal, defendant challenged the district court's denial of his motion to dismiss the indictment, arguing that using his tribal court convictions to satisfy an element of section 117(a) violates his Fifth and Sixth Amendment rights. The court concluded that the government waived its argument that defendant failed to make an evidentiary showing that his tribal court convictions were uncounseled. The court held, under United States v. Ant, that the government may not rely on tribal court convictions as predicate offenses in section 117(a) prosecutions unless the tribal court afforded the same right to counsel as guaranteed by the Sixth Amendment in federal and state prosecutions. In this case, defendant's relevant tribal convictions do not meet this standard and the charges against him must be dismissed. Accordingly, the court reversed the judgment of the district court. View "United States v. Bryant, Jr." on Justia Law

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Petitioner, convicted in state court of one count of an attempted lewd act upon a child under the age of 14, sought review of the district court's dismissal of his 28 U.S.C. 2254 petition. Petitioner alleged that the prosecutorial misstatements during rebuttal closing argument deprived him of a fair trial. The court concluded that the prosecutor's misstatements were not inadvertent or isolated. Rather, it is clear that the erroneous assertions of law in the prosecutor's closing rebuttal argument were not mere "stray words," and that they were a direct response to the central theory of petitioner's case. Further, the trial court did not correct the prosecutor's misstatements and the evidence concerning the temporal aspect of petitioner's intent was not overwhelming. The court expressed grave doubt as to whether the error had a substantial or injurious effect or influence on the jury's verdict. Accordingly, the court reversed and remanded with instructions. View "Deck v. Jenkins" on Justia Law

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Plaintiffs, a class of disabled state prisoners and parolees, filed suit seeking disability accommodations required by the Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq., and the Rehabilitation Act (RA), 29 U.S.C. 701. On appeal, the State challenged a 2012 order where the district court modified the accountability provisions of an earlier injunction ordering the State to take specified steps to ensure that disabled inmates were provided with needed accommodations. The court rejected the State's contention that the injunction was issued without notice and an opportunity for it to respond; the State waived the arguments that the statewide scope of the Modified Injunction is unsupported by the evidence and that the Modified Injunction conflicts with various state laws and the Collective Bargaining Agreement (CBA); the evidence was insufficient to warrant systemwide relief and the court declined to exercise its discretion in considering such arguments; the Modified Injunction does not violate the Prison Litigation Reform Act (PLRA), 18 U.S.C. 3626; and the sections setting forth the expert witness' authority and duties, Sections D.2 and D.3, are invalid. Accordingly, the court affirmed in part, vacated in part, and remanded. View "Armstrong v. Brown" on Justia Law

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Defendant was convicted of using a pipe bomb to damage a vehicle and apartment building in violation of 18 U.S.C. 844(i). On appeal, defendant challenged his conviction. Applying Russell v. United States and United States v. Gomez, the court concluded that there was sufficient evidence to satisfy Russell's per se rule that all rental property affects commerce sufficiently enough to warrant federal jurisdiction under section 844(i). In this case, the apartments were leased, the apartment building was advertised on the internet, and many of its residents were from out of state. Further, the apartment building was damaged by defendant's use of an explosive device. Therefore, the government satisfied the jurisdictional provisions of section 844(i), and the district court properly denied defendant's motion for a judgment of acquittal. Nothing in United States v. Morrison undermined Russell's per se rule and Morrison did not overrule Russel or Gomez. Accordingly, the court affirmed the conviction. View "United States v. Garcia" on Justia Law

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Plaintiff, now deceased, was incarcerated for two years pending trial on charges arising from a series of demand-note robberies. Plaintiff filed suit under 42 U.S.C. 1983 against the two detectives responsible for investigating the crimes, Steven Moody and Robert Pulido, for depriving plaintiff of liberty without due process of law by failing to disclose material exculpatory evidence, and for malicious prosecution. The jury returned a verdict against plaintiff on the malicious prosecution claim. In regards to the due process claim, the detectives challenged the judgment against them on the ground that the Constitution does not confer on plaintiff the right that the jury found them to have violated. The court held that the Constitution does protect plaintiff from prolonged detention when the police, with deliberate indifference to, or in the face of a perceived risk that, their actions will violate the plaintiff's right to be free of unjustified pretrial detention, withhold from the prosecutors information strongly indicative of his innocence. The jury's determination that the detectives acted with deliberate indifference or reckless disregard for plaintiff's rights satisfied the standard applicable to violations of due process. Holding that the jury instructions described a cognizable constitutional claim, the court affirmed the district court's enforcement of the jury verdict. View "Tatum v. Moody" on Justia Law

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Petitioner, convicted of crimes ranging from manufacture of a controlled substance to possession of child pornography, appealed the district court's dismissal of his habeas petition because it was time-barred. In this case, petitioner's counsel did not inform him that state post-conviction proceedings had ended, even though counsel had pledged to do so, even though petitioner wrote his counsel repeatedly for updates, and even though time in which to file a federal habeas petition was swiftly winding down. Consequently, petitioner did not learn that the time for him to file his federal petition had begun until the limitations period was over. The court concluded that counsel's misconduct was an extraordinary circumstance which caused petitioner's inability to timely file his federal petition, and that petitioner exercised his reasonable diligence in pursuit of his post-conviction rights. Accordingly, the court reversed and remanded for further proceedings. View "Gibbs v. LeGrand" on Justia Law

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Defendant appealed his conviction of one count of distributing child pornography and one count of possessing child pornography. An NCIS agent investigating online criminal activity of persons in Washington state found evidence of criminal conduct by defendant, a civilian, and gave the information to civilian law enforcement officials. On appeal, defendant argued that the fruits of the NCIS investigation into his online file sharing should have been suppressed because military enforcement of civilian laws is prohibited. In United States v. Chon, the court held that the Posse Comitatus Act (PCA), 18 U.S.C. 1385, prohibits Army and Air Force military personnel from participating in civilian law enforcement. The court reaffirmed Chon's holding that NCIS agents are bound by PCA-like restrictions on direct assistance to civilian law enforcement. In this case, the NCIS agent's actions amounted to direct assistance to civilian law enforcement and violated the regulations and policies proscribing direct military enforcement of civilian laws. The court found that the district court erred in denying defendant's motion to suppress where there was abundant evidence that the violation at issue has occurred repeatedly and frequently, and that the government believes that its conduct is permissible. The court remanded for further proceedings. View "United States v. Dreyer" on Justia Law

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Defendants Johnson and Williams appealed their convictions for armed robbery and murder. At issue was the so-called "forfeiture exception" to the Confrontation Clause of the Sixth Amendment, which applies when the defendant is responsible for the witness being unavailable. The court must decide whether proof of the defendant's responsibility for the witness's absence must be shown by a preponderance of the evidence, as provided by Rule 804(b)(6) of the Federal Rules of Evidence, or in light of Crawford v. Washington and its progeny, by clear and convincing evidence. With respect to the forfeiture exception, the court joined the circuits that have decided the issue since Crawford in holding that the standard has not changed and the provisions of the Rule continue to apply. In this case, the court concluded that the evidence was sufficient to satisfy the preponderance standard where it tended to show that Johnson alone had the means, motive, and opportunity to threaten the witness and did not show anyone else did; in regards to Williams's Confrontation Clause claim, the witness's statements were not strongly inculpatory of Williams given their inconsistency and there was no reason to conclude that the limiting instruction was insufficient; and defendants' additional claims of trial errors have no merit. Accordingly, affirmed the judgment of the district court. View "United States v. Johnson" on Justia Law

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Petitioner, convicted of murdering her husband and unauthorized surreptitious intrusion of privacy by listening device, appealed the district court's dismissal of her 28 U.S.C. 2254 habeas corpus petition based on untimeliness. The Nevada Supreme Court concluded that the petition was untimely under state law. In light of Pace v. DiGuglielmo, and because the Nevada Supreme Court is the final arbiter of Nevada state law, petitioner is not entitled to statutory tolling under section 2244(d)(2) for the duration of her state post-conviction proceedings. The court concluded, however, that extraordinary circumstances in part gave rise to petitioner's delay in filing her application for federal habeas relief until August 27, 2007, when the extraordinary circumstances making it impossible for her to file on time were removed. After that date, the one-year limitations period resumed, giving petitioner until April 10, 2008, at the latest to file her application for federal habeas relief in the district court. Petitioner waited until April 25, 2011. Therefore, petitioner's application was too late. Accordingly, the court affirmed the district court's dismissal with prejudice of petitioner's application and denied the State's motion to expand the record on appeal. View "Rudin v. Myles" on Justia Law

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Petitioner, seeking relief from a misdemeanor conviction for driving under the influence, appealed the district court's dismissal of his petition for a writ of habeas corpus under 28 U.S.C. 2254. The district court granted the Attorney General's office's motion to dismiss on the grounds that the petition had not been filed within the time limit provided in section 2244(d)(1)(A). The court concluded that, in the context of California misdemeanor habeas petitioners, finality for the purposes of the Antiterrorism and Effective Death Penalty Act (AEDPA) occurs only once the California Supreme Court denies their state habeas petition and the U.S. Supreme Court denies certiorari or the 90-day period for filing a petition for certiorari expires. Even though a misdemeanor judgment is "final immediately" under the California Rules of Court, the judgment is not final for purposes of AEDPA until a misdemeanant has exhausted his claim by filing a discretionary petition in the California State Supreme Court. Accordingly, the court reversed and remanded. View "McMonagle v. Meyer" on Justia Law