Supremely Unpublished (Cal. Supreme Ct. - Oct. 31, 2011)

One of the things I like most about the California Supreme Court is that, busy as they are, they're not too busy to occasionally engage in pure error review; e.g., to grant review of the occasional unpublished opinion that's really wrong.  Sure, those opinions aren't precedential, so only affect the litigants.  But that doesn't necessarily mean that the opinions are unimportant, or unworthy of correction.  When you've got thousands and thousands of appellate decisions, some are bound to be wrong, and I think it's beneficial to step in on occasion and say so.

Moreover, since these opinions are (usually) pretty clearly wrong, it doesn't take up that much time to review them.  The California Supreme Court's decisions in these cases are (usually) short and unanimous.  Yes, they still have to write them and vote on them and have oral argument.  But that ain't that tough.  And I'm glad the Court's willing to put in the effort.

The two cases from the California Supreme Court today are like that.  Here and here.  Both unpublished opinions.  Both get reversed.

I say this, by the way, notwithstanding the fact that in today's cases, you actually have disagreement; in one case, by Justice Werdegar, and in the other, by Justice Kennard.  Even when there's not unanimity, I still am of the view that review is often proper.  Because even though three (appellate) judges are more likely to get things right that one (superior court) judge, the former are still far not perfect.  And that's true even when one or two California Supreme Court justices agree with 'em.

People v. Thomas (Cal. Ct. App. - Oct. 28, 2011)

This makes me really inclined to voluntarily submit to an alcohol screening.  Which the police used here as a pretext to obtain the defendant's DNA.

I'm sure, by the way, this was all coincidence.  The police receive an anonymous tip about defendant.  They follow him, and promptly stop him for alleged traffic offenses.  They say he's got bloodshot and watery eyes, so ask him to take a PAS test, which he blows into -- at which point they now have his saliva and thus DNA, which they then analyze to tie him to a series of crimes.  Of course, they don't charge him with DUI or even a traffic offense, since they got what they wanted.  Plus he passed all the tests.

On the one hand, that's darn good police work.  As well as permitted by contemporary jurisprudence.  On the other hand, a cynic might note that the "anonymous" tip, the alleged "traffic" offense that they saw, and the officer's un-disprovable claim s/he saw signs of intoxication are all easily manufactured, thereby permitting the exercise of a great deal of unchecked executive power.

Two sides of the same coin.  Depends on which you value more.

Miller v. City of Los Angeles (9th Cir. - Oct. 27, 2011)

I probably come out somewhere between the majority and the dissent here; perhaps a middle ground.  But if I had to choose, I'd probably say that Judge Ikuta's dissent has the better of the argument over Judge Kozinski's majority opinion.

Judge Kozinski, as he sometimes does, pitches his opinion with mystery and guile, commencing his missive with the following introductory paragraph:

"This is a strange case. Its resolution hinges on the absence, as a factual matter, of something we must accept as a legal matter. There are unlikely to be many more like it, so this opinion’s precedential value is probably limited. We nevertheless publish pursuant to General Order 4.3. While we’re at it, we offer some advice to lawyers: Don’t apologize unless you’re sure you did something wrong. And there’s also a lesson for district judges: Don’t accept too readily lawyers’ confessions of error or rely on your own memory of what happened. Trials are complicated and we sometimes misremember details. That’s why we have transcripts."

A neat little intro.  Mind you, even as a facial matter, I disagree with one of the things he says in there:  the part where he says lawyers should be less willing to apologize.  Respectfully, I don't think that's really where the problem is these days.  If I had to choose between telling counsel to put a thumb on the scale towards apologizing or a thumb on the scale the other way, I'd  choose the former.  So I'm not really sure I'd be as gung-ho as Judge Kozinski about publishing an opinion in an effort to try to convince lawyers to be more wary about offering an apology.

I get where Judge Kozinski's sentiment comes from.  Here, there was an in limine motion, a lawyer seemed to violate that order during his closing argument, an objection was sustained and the lawyer immediately apologized, and even after sanctions were considered -- and even after sanctions were ordered -- the lawyer has consistently apologized and argued that his error was merely fleeting and accidental (rather than in bad faith).  But Judge Kozinski thinks he shouldn't have apologized (much less been sanctioned) because what he did didn't violate the order in the first place.  Hence the non-Dad-like advice:  "Don't apologize, Son."

But I think Judge Ikuta's probably right.  The transcript's admittedly somewhat unclear.  And it can sometimes be hard to get the "message" that's intended -- especially during closing arguments -- when you're not actually at the trial.  Particularly, I might add, when the transcript (as here) is probably not a perfectly verbatim recitation; court reporters aren't flawless.  Here, opposing counsel heard what the other side said -- and presumably understood what he meant by it -- and promptly objected; the district judge heard the same thing and immediately sustained the objection, interpreting the statement in a way that indicated that it did indeed violate the in limine order; and even the offender thought (both at the time and consistently thereafter) that the statement did indeed violate the order, and apologized to the judge (and jury) and made a contemporaneous statement in his apology that seemed to suggest that, yeah, what he was inferring was indeed an effort -- albeit perhaps accidental -- to violate the order.

That's pretty good evidence, I think, that what was meant by the statement, and how the jury was meant to understand it, was shared by all the parties and entailed a violation of the in limine order.  Sure, it's not crystal clear, and Judge Kozinski makes a tolerable argument the other way.  But I can easily see how all the parties might read the statement the way Judge Ikuta does, and since all of the participants who were there at the time (and in the context of the actual trial) seem to have understood it that way, I think that's more than sufficient evidence to adopt the district court's interpretation.

One thing I know for sure.  Judge Ikuta's right about Judge Kozinski's dissent.  Judge Kozinski argues at length that the attorney was talking about the defendant's perspective during the closing argument.  I agree, and Judge Kozinski's lengthy quotation amply proves this point.  But that's not true during the portion of the closing argument at issue.  The attorney clearly changed perspectives and started talking about the victim's perspective, including the part of the closing argument that led to the sanctions, and that lends credence to the district court's view that the statement violated the order.  Judge Kozinski's "perspective" argument is simply wrong, and is half-a-beat too sly.  Judge Ikuta catches him and points this out in her dissent, but Judge Kozinski doesn't budge.  Proving that Judge Kozinski is far from a hypocrite, and is more than willing to follow his own advice about the dangers of apologizing or readily admitting error.  Let the reader decide.  Good for lawyers, good for judges.

But while Judge Kozinski seems wrong to me on this point, I think he might well be right with respect to the second portion of his opinion.  In which he alternatively holds that he'd reverse the sanction on the ground that it was excessive.  That seems quite plausible to me.  The district court imposed sixty-some thousand dollars in sanctions, which was exactly the amount of the plaintiff's attorney's fees at trial, presumably on the theory that the violation of the in limine order caused the jury to hang.  But I agree that this is probably wrong.  The district court promptly corrected the error and sustained the objection, the wrongdoing attorney expressly (and immediately) told the jury that the inference that he was trying to get them to draw was wrong, and there's no reason whatsoever apart from the fact that this comment was made during a closing argument to think it actually had any impact whatsoever on the jury's ultimate decision to hang.

I agree with Judge Ikuta that the district court could spank counsel to uphold the integrity of the court and to deter future misconduct.  But sixty-three thousand for a single comment, even if deliberate (and I'll concede for purposes of argument that it was), seems excessive for something that didn't matter at all. I'm not sure that Judge Kozinski's "$5,000" line really works.  Maybe I'd permit an attorney in an appropriate case to be spanked even more than that.  But a lawyer who utters a single erroneous line, who immediately apologizes, and who immediately rejects in front of the jury the inference that he was trying to deliver is sufficiently deterred, it seems to me, by having to write a check out of his own pocket for five or ten grand.  Unless the guy's burning cigars with hundred dollar bills, sixty thousand-plus is unnecessary, and since it's not compensatory, but rather to deter and preserve integrity, I agree with Judge Kozinski that it's got to be brought down.

But not to zero.  The dude did wrong.  He should have apologized.  And the fact that he did, I might add, would only encourage me further to bring the sanction award lower than I otherwise might.

So I in fact think that the lesson one should receive from Judge Kozinski's opinion today is precisely opposite to the one he actually delivers.  Lawyers should be more, not less, willing to apologize.  Not only because that's typically the right thing to do, and because counsel's instinct is usually overboard the other way.  But also because, after today, you've got an opinion by the Ninth Circuit that says that even when you apologize, that doesn't mean a judge is going to conclude that you actually did the thing for which you apologized.

So it's the perfect world.  Apology without meaning.  Apology without effect.  Apologies that are only an upside.

So apologize.

People v. Kingsberry (Cal. Ct. App. - Oct. 26, 2011)

It looks like this is indeed the rule in California. Though it seems a bit harsh.

Albert Kingsberry pleads guilty and is given probation for five years, ordered to spend 181 days in jail, and is ordered not to drink or possess any alcoholic beverages during his probation.  Four years later, he (stupidly) violates the no-alcoholic-beverages condition.  Hope that beer tasted good.  Because it's the last one you're going to drink for a while.

So the trial court revokes probation and resentences Kingsberry.  To the mid-term of four years in prison.

So Kingsberry does his time.  Hopefully he's learned his lesson.

Around three years later, after good time credits are applied, Kingsberry is about to get out of prison.  As his release date approaches, the Department of Corrections writes the sentencing judge and says:  "Hey, we noticed that you sentenced Kingsberry to four years.  But the mid-term for this offense is actually six years.  You might have made a mistake.  Want him to spend another two years in prison?"  At which point the judge says:  "Yes."  Tacking on two more years to his sentence.

The Court of Appeal concludes that's okay.  And based upon its discussion, that does indeed seem to be the law of California.  On the theory that the initial sentence was "contrary to law" -- as only three-, six- or eight-year sentences are authorized for this offense -- and "illegal" sentences can be vacated at any time.  And even though Kingsberry says "Okay, give me three years:  that's a legal sentence," the Court of Appeal says he's not entitled to that, and that the trial judge can go back and give him more time instead.

It seems fine to me to correct sentences based on errors when it's done promptly.  So, for example, if weeks (or even months) after the sentence, the trial judge recognized the error, I wouldn't have a real problem with going back and correcting it.

But when no one notices the mistake, when everyone relies on it, when everyone knows that the sentence is X number of years, and when the defendant's entire sentence is almost up, that seems qualitatively different to me.  Perhaps not from a legal standpoint, but just as a matter of fairness and settled expectations.  The prisoner thinks he's served his time.  Paid his debt.  Looking forward to an imminent release.  Only, after years in prison, to have the trial court say:  "Nope.  Made a mistake.  I'm sentencing you to another two years."

At the very least, as an equitable matter, I might have the trial court at least look at the defendant's current status before resentencing.  His disciplinary record.  What he's accomplished in prison.  To see if it's fair to pull the rug out of the defendant on the eve of his release.

But the Court of Appeal holds -- and, again, this appears to indeed be California law -- that this doesn't have to be done.  The trial court can simply say:  "I should have known it was six years rather than four.  My bad.  You pay for it."

I understand that the defendant doesn't get to benefit from the mistake by having his sentence further reduced -- to three years rather than four -- to correct the error.  Even though that would indeed solve the "illegal sentence" problem while avoiding the frustration of settled expectations.

Sure, there's a line-drawing problem.  How long do you have to be in prison before you can rely on your sentence.  A day?  A month?  A year?

But there's equally a problem with the Court of Appeal's rule -- at least intuitively -- that says (as it clearly does) that even if you've served 30 years in prison, even if you've been a perfect prisoner, and even it's an hour before your release, as long as the trial court decides that it made a mistake and that your 30-year sentence was thus "illegal," it can throw you in the slammer for another decade.

Sometimes I disagree with the appellate court's legal analysis.  Not here.  It seems spot on.  But on a rare occasion or so, that rule nonetheless tugs on me as somewhat unfair.  Perhaps not in a "This Cannot be the Law" or "That Violates the Constitution" way, but rather in a "Really?  We Can't Do Something Better Than This? way.

This is one of those cases.

Sarei v. Rio Tinto (9th Cir. - Oct. 25, 2011)

I dare you to read this opinion.  Wait.  I take that back.  I double dare you.

It's an important case.  An Alien Tort Statute case arising out of the operations of the Rio Tinto mining group on the island of Bougainville, Papua New Guinea and the resulting uprising against Rio Tinto that led to military intervention and numerous deaths.

These things transpired in the 1980s.  The docket number of this appeal begins with "02-".  This is not the second time this case has been before the Ninth Circuit.  This is the second time it's been before an en banc Ninth Circuit court.

It's important.  It's long-running.  And it's hopelessly fractured.  You can barely tell the result even with a scorecard.

There are eleven members of the panel.  Judge Schroeder writes one opinion.  She gets three votes:  her own, Silverman and Berzon.  Judge Ikuta writes another opinion.  She gets four votes:  hers, as well as Judges Kleinfeld, Callahan, and Bea.  A lineup that substantially overlaps with Judge Kleinfeld's opinion, which is joined by Judges Bea and Ikuta.  As well as Judge Bea's opinion, which is joined by Judges Kleinfeld and Callahan.  Oh, and Judge Ikuta as well.  Except for Part III.  She's not on board for that.

Judge Reinhardt writes an opinion as well.  He agrees with Judge Schroeder, and joins her opinion.  Except for Parts II(C) and Part IV(B)(3).  Judge Pregerson is also willing to agree with what Judge Schroeder says.  Except he, like Judge Reinhardt, doesn't agree with portions of Part IV(B)(3).  But Judge Pregerson, unlike Judge Reinhardt, is willing to sign onto Part II(C).  Moreover, while Judge Reinhardt agrees with Parts IV(C) and (D), Judge Pregerson doesn't.  So doesn't sign onto those parts.

Judge Rawlinson agrees with Judge Pregerson.  So joins his opinion.

Then there's Judge McKeown.  She's fine with all of the above.  But she has a beef with two entirely different portions of Judge Schroeder's opinion:  Parts IV(A)(3) and IV(B)(4).  So she writes her own opinion.  Which is in turn joined by Judges Reinhardt and Berzon.  Except for Part II of that opinion.  For that, she's on her own.  But she's got three votes for Parts I, III and IV. 

The whole shebang is 170 single-spaced pages.  Of dense, dense prose.  One of the dissents alone -- Judge Kleinfeld's -- has 136 footnotes of its own.  The final footnote of which, if I'm not mistaken, consists of Judge Kleinfeld citing a law review article by his son Joshua.

So go ahead.  Read the thing.  Figure out the score, as well as the fights.

I dare ya.

Doe v. Busby (9th Cir. - Oct. 24, 2011)

I can figure out the law.  The opinion makes sense to me.  So that's not the issue.

But I have two lingering questions.  None of which really matter, but that bear mention regardless.

First, why a "Doe"?  This isn't a sexual molestation case or a minor or anything like that.  It's an adult.  Not just an adult, but an incarcerated adult.  Someone convicted, at a public trial, of killing his wife.  Someone who's filing a habeas claim in the hope he's let out of prison or, at a minimum, obtains a new trial.

It seems to me like there's a public interest in knowing who this person is.  Especially if, as here, he's claiming (pretty persuasively) that his lawyer was incompetent.  Identities in cases like this may matter.  And I don't, at least offhand, see any reason why permission should be granted to file anonymously.

(Plus, I gotta say, it took a lot of digging to figure out his identity.  Louis Peterson.  And even then, I can't tell whether this was his "old" (pre-murder) name or a new one, since I can't find any reference to the underlying murder anywhere.  But that's perhaps because it was fifteen years ago.  Even odder, although the opinion by the Ninth Circuit quotes a California Court of Appeal decision, I can't find that opinion anywhere.  Weird.)

Second, I don't understand why the case was reargued.  It was originally argued in April 2010, and Judge Thompson was on the panel.  As you may recall, Judge Thompson died fairly suddenly in February 2011.  My sense is that Judge Thompson was probably the one assigned to write the initial opinion, because his replacement, Judge Milan Smith, ultimately ends up authoring the decision.  So, sadly, a fair amount of work by Judge Thompson and his clerk probably went largely to waste.

All that I understand.  But why reargument?  The opinion is unanimous.  The issues, while complicated to a degree, are understandable.  Usually the replacement judge simply listens to the previous oral argument and joins -- or, less often, writes -- the relevant opinion.  Presumably Judge Smith was the one who wanted the reargument.  Which is, of course, his right.  But unusual to see.  At least in unanimous opinions like this one.

So some lingering questions for us outsiders.

People v. Williams (Cal. Ct. App. - Oct. 14, 2011)

Here's proof that you can write a coherent and comprehensive opinion in less than a half-dozen pages of double-spaced text.

Myers v. Holder (9th Cir. - Oct. 20, 2011)

Seems to me like Judge Ikuta has a point here.

She dissents from the panel's decision to stay the mandate in an immigration case.  Her dissent is fairly brief (though, as usual, emphatic), and argues in part that the panel's string-cite decision -- which doesn't respond to the points the dissent makes -- isn't good enough, contending that the panel "has a duty" to say why it's doing the thing she doesn't like.

Of course, there's no such obligation, either generally or specifically.  But she's right that she makes some facially plausible arguments in her dissent, ones to which I agree the panel should probably respond.  Now, maybe the panel's just deliberately making her mad by not responding, and if the whole point is just to show everyone how little they think of her, okay, I get it.  But I'm not sure that's indeed their point.  In which case the arguments she makes do indeed probably warrant saying something.

Admittedly, there's not much at stake here.  It looks like the stay of the mandate here will be for around sixty days or less -- and is in any event entirely within the BIA's control (the stay is only during the period in which the BIA is considering Myers' petition to reopen, a petition they can presumably decide -- thereby ending the stay -- whenever they want).  But Judge Ikuta thinks that's a huge burden, and whatever arguments the panel thinks are responsive to that contention perhaps warrant elaboration.  If only to give future panels the benefits of the current panel's thoughts.

Sukut Construction v. Rimrock CA LLC (Cal. Ct. App. - Sept. 30, 2011)

A strip mine apparently isn't a mine.

This according to an opinion that -- perhaps deliberately -- nowhere uses the term "strip mine."  Preferring instead to call the property here a quarry.  Because holding that a strip mine isn't a mine would seem even more counterintuitive.  (The terms are essentially synonyms, though often suggest what types of rock/minerals are sought from the mine.  Quarries often yield building rocks/gravel and dimension stones, whereas strip mines often yield coal, copper, etc.)

Notwithstanding how we use these terms, I might think that the Court of Appeal's decision made sense if the quarry/strip mine at issue here was just dredging out sand or landfill or the like.  But when you're deliberately taking out certain types of rocks -- i.e., granite, pebbles, etc. -- it seems to me that it's a mine.  Even without an opinion of the Attorney General that, as here, suggests that a quarry is indeed a mine.  Something that's entitled to deference.

It's admittedly an issue that involves contextual statutory interpretation.  But if it looks like a mine, gets rocks like a mine, sounds like a mine, and uses explosives like a mine, then it's probably a mine.

U.S. v. Rizk (9th Cir. - Oct. 19, 2011)

Rizk was an appraiser who helped her co-conspirators defraud lenders out of tens of millions of dollars by giving inflated appraisals for properties that were actually worth much less.  She knew that she was potentially criminally liable for what she did, but she thought that she was at least off the hook for the money once her insurance company paid a little under a million dollars to settle the civil actions against her for what she did.  She got a full release of liability as part of that deal, so that means no restitution, right?

Wrong.

So she still owes $46.5 million in mandatory restitution.  Though the Ninth Circuit does help her out in one way.  They knock a million dollars off this amount.  (Because the restitution order to her insurance company was double-counted.)

So once she pays the $45 million or so, she's good to go.

Which is nice.  'Cause I'm sure she'll fully pay this thing.

U.S. v. LaBuff (9th Cir. - Oct. 13, 2011)

"You're not an enrolled member of an Indian tribe, LaBuff, but you've got enough Indian blood.  So you're going to federal prison."

Design In Progress

I'm trying to change the design of this thing (at long last), so it'll look funky for another day or so.  Bear with me.

- Shaun

People v. Miranda (Cal. Ct. App. - Oct. 18, 2011)

"Defendant argues 'the only evidence [about Jane being disabled] was that Jane suffered from cerebral palsy and seizures, that she had difficulty speaking, and that she attended a school with special education. . . . [But o]ne of the strongest circumstances indicating that Jane lacked the mental capacity to consent is that she did not respond to defendant‘s questions asking if she liked what they were doing during the sexual assault. The jury could rationally conclude that a 15-year-old girl who had the ability to appreciate what was taking place would express some reaction to a surprise sexual assault from her grandfather in a small trailer, with her brother nearby, in the early hours of the morning. Jane's lack of response certainly suggests that she did not have the capacity to understand the consequences of defendant‘s acts or the ability to voluntarily consent to them. From her failure to react, the jury could infer she did not simply have difficulty speaking, but that her mental capabilities, in the circumstances of the offenses, prevented her from being capable of giving consent.

A further indication of Jane‘s lack of capacity to consent is found in her childlike description at trial of the sexual assault. The best she could do to explain what happened was to place shaky marks on simple diagrams to indicate where and how she was touched by defendant, and hold up ten fingers when asked about how she was touched by defendant. The impression left by her testimony was that she lacked the understanding required of one capable of giving consent and defendant knowingly took advantage of that disability. The jury could reasonably infer that an inability to articulate what happened demonstrated that Jane was not capable of appreciating what took place or freely and voluntarily participating in the acts."

True that.

Smallwood v. Allied Van Lines (9th Cir. - Oct. 18, 2011)

You're living in San Diego.  You decide to move to the UAE.  Why?  I have no idea.  San Diego is pretty darn nice.  Presumably for the money.

You can't exactly drive a U-Haul with all your stuff to the UAE.  So you hire Allied Van Lines.  You also (smartly) don't intend on living in the UAE forever.  So when Allied comes to your house, you show them one group of boxes that are to be shipped to the UAE and another group that are to be put into storage.  Makes sense.

Allied messes up.  It ships both groups of boxes to the UAE.  Bummer.  But easily solved, right?  Just ship the second group of boxes back.

One problem.  One of those boxes were full of guns and ammunition.  To which the UAE responded, shall we say, harshly.  Imprisoning you for 11 days and charging you with gun smuggling.  A crime that the UAE (understandably) frowns upon.  Then moved to deport you from the UAE.

So you do what any good American would do.  You sue Allied Van Lines.  Which then responds in the way common to any good American corporation.  By moving to compel arbitration of the dispute.  In Dubai.  As required by a small snippet of one of the forms they sent you to sign (even though it doesn't look like a contract).  On the theory -- rightly enough -- that an arbitration in Dubai will be much more of a hassle to you, and more favorable to the moving company on the merits, than a lawsuit in the U.S.

The Ninth Circuit has to decide whether that arbitration agreement is invalid under the Carmack Amendment.  No, not Carnac.  Carmack.  Less well-known than the other (fictional) guy.  A Senator remembered in posterity only because of this particular amendment to the federal law about common carriers.  Plus the fact that he was shot and killed on the streets of Nashville and was allegedly "one of the most racist politicians in Tennessee history."  Which is saying something.  (Here's the statute of Carmack in front of the Tennessee State Capitol.  Notice the absence of a frilly Carnac hat.)

The Ninth Circuit holds that the arbitration provision is invalid.  So Smallwood gets to sue in San Diego.  Affirming Judge Moskowitz, who's pretty smart and who held the same thing below.

See.  You should never leave San Diego.

Lesson learned.

U.S. v. Urena (9th Cir. - Oct. 13, 2011)

File this under "Things You'd Think We're Obvious And Yet Apparently Need The Ninth Circuit For":

"Urena’s being called a 'bitch' in prison, though it might create risk in that harsh environment did not give Urena warrant to attack Dennis with a prison-made knife. Urena’s being called a bitch in prison did not justify a surprise, pre-emptive attack using deadly force; indeed it would not have justified an assault using much less force."

To put it differently, the defendant -- represented by a lawyer, no less -- was wrong when he claimed that he “had to attack . . . so that no one would think he really was a bitch.”

Shocking, I know.

Mattos v. Agarano (9th Cir. - Oct. 17, 2011)

A story of two tasings.  With starkly different assessements of whether the tasings were permissible.

In Re J.S. (Cal. Ct. App. - Oct. 14, 2011)

"The teenage minor was placed in protective custody in July 2010, following mother’s arrest on charges of physical abuse of a minor. Father was in state prison and mother had no stable home. According to the detention report, minor was pregnant and wanted to stay in California to be with her boyfriend rather than join her siblings in Alabama."

Family life in modern America.

U.S. v. Carper (9th Cir. - Oct. 14, 2011)

PVS-14's are night-vision devices that you can buy on ebay, amazon, and a ton of brick-and-mortor stores.  Here's a sample.

So they're readily available, and anyone who wants them can get easily get them.  Nonetheless, you're not allowed to export them.

Charles Carper was a Marine.  He sole a PVS-14 to a Polish resident and another one (or four) to someone from China.  He pled guilty without a plea deal.  What should his sentence be?

Does three years in prison sound about right?

U.S. v. Reyes (9th Cir. - Oct. 13, 2011)

Yes, Gregory Reyes.  You're the rich former CEO of Brocade.  You hired Seth Waxman to appeal your federal conviction for options backdating in 2006.  You won.  Prosecutorial misconduct.  Remand.

But that doesn't stop the United States from trying again.  Which it did in 2010.  Again securing a conviction against you on nearly all counts.

Which means that you again hire Seth Waxman.  Again alleging prosecutorial misconduct.

No such luck the second time around.  Conviction unanimously affirmed.

So you'll indeed have to do those 18 months in prison.  Plus pay the $15 million fine.

And yeah, yeah, I know.  Seth will happily take your money to file a petition for certiorari with the Supreme Court.

But save your money.  Such a petition wouldn't even get a second look.

Time to pay the piper.  Plus your lawyers.

U.S. v. McEnry (9th Cir. - Oct. 13, 2011)

This seems right.  Which is not easy.  Since it's a pickle of a problem.

The question is what the most analogous guideline is to a crime that's pretty unusual and that doesn't have its own guideline.  The crime:  Serving as an airman without an airman's certificate.

I'll be honest that when I started reading the opinion, I had no idea what that crime even was.  Turns out it's just flying a plane without a license.  Which is what Michael McEnry indeed did.  He flew a jalopy of a plane to a regional airport Bishop, California even though his student pilot's license had long ago expired.  That's a crime.

The question is:  How serious of a crime?  How much should he presumptively be sentenced?  And that's something the Sentencing Commission didn't expressly answer.  Which is not surprising, as this is not an offense that happens every day.  Thankfully.

So the district court's task was to pick the "most" analogous guideline offense or, if one wasn't available, to sentence McEnry to the guideline's catch-all residual provisions.  The Probation Office contended that the analogous offense was interfering with the navigation or operation of a mass transportation vehicle when that interference recklessly endangered the safety of an airport or the aircraft.  And there are indeed certain similarities between that offense and this one.  They involve airplanes.  What McEnry did could have injured an aircraft or an airport (e.g., he could have crashed).  So the district court used this provision.  Which set McEnry's base offense level at 18.

The problem, of course, is that while there are some similarities, that guidelines offense involves the interference with (and danger to) a mass transportation airplane; i.e., a commercial airliner.  McEnry was flying a single-engine Cessna with only himself on it.  Sure, there's a danger there.  But it's less danger than interfering with a commercial aircraft.  Which, in my view, is why the base offense level for the latter is so high.  It seems overly harsh to use that offense for McEnry's crime since that's not what he did; there's a big difference in severity between screwing around with your own Cessna and screwing up a commercial jet.

The Ninth Circuit ultimately agrees, and remands for resentencing.  Judge Tashima's opinion seems correct to me in that regard.  And I'll add only one additional observation (beyond the preceding) to what he says.

Because the district court set the base offense level at 18, McEnry gets almost two years in prison (21 months) even after a three-level reduction for acceptance of responsibility and even though McEnry doesn't have a criminal record (History Level I).  Two years in federal prison seems pretty heavy for a first-time offender flying without a license.  Should you get spanked?  Sure.  You created a danger.  So do people who drive without a license.  Or text while driving.  Or drink and drive.  And they don't get two years in prison.  They often don't get two years in prison even if they crash.

Which you might think is technically irrelevant to the Ninth Circuit's task of choosing an analogous guideline offense (if any).  But I think it might well be.  The statutory maximum of the offense for which McEnry was convicted is three years.  Under the district court's view, the base level is 18.  Which means almost everyone convicted of this offense gets at or near the statutory maximum.  Even people like McEnry who plead guilty, have no criminal history, accept responsibility, etc.

That seems further evidence to me that the allegedly analogous offense isn't really analogous.  If a particular guidelines choice means that a first-time offender with no criminal record whatsoever gets the same (or nearly the same) sentence as a four-time loser with a rap sheet as long as my arm who expresses absolutely no remorse and seems inclined to commit the same offense again, that's a pretty good reason to think that the guidelines choice you made is wrong.  And that what you've done is to pick an overly harsh "analogous" offense that's in fact more heavy than the actual offense for which the defendant was convicted.

Johnson v. Metropolitan News (Cal. Ct. App. - Oct. 11, 2011)

Here's a good example of a nineteenth century statute in twenty-first century California.

Newspapers have to be certified as ones of "general circulation" in a locality in order to publish summons, notices of trustee sales, etc.  This perhaps made sense a century ago, when newspapers were the principal means of notifying the public of various important events.  Needless to say, that's no longer the case.  And even if it was, who actually reads those things -- those small print notices in the back of the paper.  No one.  You know it.  I know it.  The newspapers know it.

But the newspapers still get paid for running the things.  Which in turn creates incentives for newspapers to lobby to retain these archaic laws.  Plus creates an incentive structure that leads, for example, to the creation of the Metropolitan News in Los Angeles.  Maybe you've seen it.  You can get it for free in tons of different places.  Does anyone really read it?  No.  Unless you're totally bored and there's nothing else to do.  Does it contain any actual news?  Not really.  Just enough to plausibly claim that it's a true "newspaper" as required by the general circulation statute.  The vast majority of its content instead entails the statutory notices that no one reads.

Which is silly in the first place.  But it gets even sillier.

What newspaper might -- at least theoretically -- actually be read in Los Angeles?  How about the Wall Street Journal?  An actual newspaper with actual reporting.  So the WSJ petitions to get certified as a paper of general circulation in Los Angeles.  At which point Metropolitan News opposes the petition.  Because it's trying to protect the public?  Hardly.  Because the WSJ would be a competitor.  Metropolitan News alleges that the WSJ isn't a paper of general circulation in Los Angeles because it's a national newspaper rather than a local one, claiming that you can only have "one" certified location.  Essentially claiming that because lots of people read this newspaper, it's not good enough to provide notice.

Which is silly.  And, thankfully, the Court of Appeal rejects this contention.

But the statute is silly itself.  For example, the statute requires that the actual printing of the paper take place in Los Angeles.  Why?  No reason whatsoever.  This led Metropolitan News to argue that the WSJ wasn't a local paper because its reporters were located in New York rather than LA.  Again, who cares?  Moreover, in this particular case, the WSJ qualifies because it happens to have a production facility in Los Angeles.  But who cares?  Why should the statute require that?  As long as it's read in Los Angeles, that should be enough.

But even the existence of the statute is absurd at this point.  Should publication in a newspaper that we know no one actually reads be sufficient notice?  Maybe.  But it'd be just as effective -- and probably much more so -- to publish these things on that new-fangled thing called the internet.  Something that, last I checked, one or two people actually peruse.  Plus, the only people who actually read these notices are the firms who then follow up in trustee sale notices, etc.  Those entities would probably much rather prefer an electronic version rather than things in print anyway.  More importantly, it'd be much, much less expensive for litigants to print a notice on the internet than to buy a lengthy portion of a back page of a newspaper that no one reads but that the publisher prints and distributes just so it satisfies the required circulation numbers.

You'd think this would be a perfect thing for an entity like the Law Revision Commission to change.  An antiquated statute devoid of substance and completely inapt in the modern era.  And yet here we are in 2011.  With the same outdated, parochial statute.  Protected by lobbyists as well as the ability to petition in order to attempt to exclude competitors like the Wall Street Journal.

*Sigh*

People v. Le (Cal. Ct. App. - August 29, 2011)

There's a big fight about whether a criminal should go free because a constable has blundered; e.g., whether the exclusionary rule is the right remedy for police errors.  But everyone seems to agree that criminals get to go free when the prosecutor has blundered.

Like here.

It actually seems to me that not only has the prosecutor blundered, but so has the Legislature.  Everyone knows that MDMA ("Ecstasy") is a controlled substance.  Yet the relevant Health and Safety Code does not expressly list MDMA as one, and instead simply makes illegal things that are "similar" (isomers of, etc.) to amphetamines.  Which Ecstacy is.

The problem is that you need testimony to that effect.  Which the prosecutor here didn't elicit.  So the only thing we have is (1) common knowledge (which is insufficient for a conviction), and (2) the fact that MDMA is methylenedioxymethamphetamine, which while both relevant and descriptive, isn't sufficient either.

Hence would-be drug dealer Richie Le goes free.

Dollinger Deanza Assocs. v. Chicago Title Ins. Co. (Cal. Ct. App. - Oct. 6, 2011)

Title insurance doesn't even cover this.

What a value.

Yuin University v. Korean Broadcasting System (Cal. Ct. App. - Oct. 5, 2011)

Maybe they should have put "University" in quotes in the caption of this lawsuit:

"On September 2, 2007, KBS [Korean Broadcasting System] broadcast a segment on its Sunday news program entitled 'Degree Factory Confers Doctorate Degrees even to Persons who Plagiarize.' The broadcast aired during a controversy in Korea over high profile Koreans lying about their academic credentials. The broadcast identified Yuin in Compton, California as a 'suspected . . . degree factory.' The reporters visited the university but 'found no students, teachers and no officials except a signboard that is the only indication showing that this is a university. The reason that the school is left vacant in this way can be verified by a graduate who is working as a professor.' The former graduate told the reporters that he twice stayed one week in Los Angeles to obtain his degree from Yuin but otherwise never came on campus. The reporter concluded that Yuin 'confers degrees to persons who have not properly studied at their place.'

The broadcast further reported that 47 people disclosed to the Korean Research Foundation that they received doctorate degrees from Yuin and 40 dissertations were lodged there. The reporters found some of these graduate theses to be identical and others to be of poor quality. With the exception of the first two pages listing different titles and authors, two of the theses were identical even down to the typographical errors found in the table of contents. The authors were identified as Mr. Young Tae Baik, who received a degree from Yuin in the first semester of 2002, and Mr. Young In Byun, who received a degree from Yuin in the second semester of 2002. Both theses were signed by the same advisor professor. . . . The reporters also stated that two other dissertations for a doctorate in theology were identical, including the typographical errors in the footnotes, and another one appeared to have been copied from articles found on the internet. Another thesis for a doctorate degree in oriental medicine was judged to 'display a shameful level even to be submitted as an undergraduate paper.' 'There was even a thesis for [a] doctorate degree that is said to abstract contents from Internet portal sites.'"

Sounds like good reporting to me.  As well as to the Court of Appeal, which affirms the trial court's rejection of Yuin "University's" resulting libel lawsuit.

Though this does give me an idea.  Maybe my academic career would be assisted by my getting a PhD.  Apparently it's not as difficult as I thought.

People v. Maria D. (Cal. Ct. App. - Sept. 13, 2011)

How often do you see a prosecution for lynching in the twenty-first century?

How often do you see a sentence arising from such an offense be "two years in a county camp" rather than something more serious?

How often do you see a defendant argue that she -- notice the gender, by the way -- should instead have been charged with the lesser offense of inciting a riot?

All of this, and more, in this opinion.

Oh, one more thing.  The individual guilty of lynching isn't necessarily the race you might think she'd be.

Needless to say, the offense of "lynching" in California in 2011 is somewhat different than its historical analogues.

In Re Bryan D. (Cal. Ct. App. - Sept. 13, 2011)

Want to read something depressing?  Here you go.

I know I always like to leave a twelve-year old child alone in the house for a couple of weeks.  Seems reasonable.

But wait.  There's more.  Don't think it's easy to figure out what to do with the child.  He actually likes it with the person who leaves him for weeks at a time.  May even be the best thing for him.  Depressingly.

Ever think that some people have very little chance in life from the get-go?  Even if, as seemingly here, they're incredibly resilient?

Carrera v. Ayers (9th Cir. - Oct. 4, 2011)

Judge Tashima's analysis looks better than Judge Bea's in this one.

It's a case involving a Hispanic defendant in a death penalty trial in which the prosecutor struck three-quarters of the Hispanic jurors as compared to one-quarter of the White jurors.  There might, of course, be reasons for that.  But Judge Tashima's dissent argues that even a "smell test" would tend to suggest that there might be something going on there.

Judge Bea responds by going down juror-by-juror and explaining why the prosecutor probably struck each one.  Judge Bea himself makes up most of these arguments, because the prosecutor didn't offer any actual reason himself -- he simply said "I don't recall why I struck anyone, but I'm sure it wasn't based on race."

I'm nonetheless persuaded by most of Judge Bea's defenses.  Some of these jurors do indeed seem struck for valid reasons.  So I agree with Judge Bea.

Except for juror Martinez.  There's no reason whatsoever why he was struck other than his race.

Judge Bea concedes that Martinez didn't say anything especially favorable towards either the prosecution or the defense, or about the death penalty.  So no reason to excuse him on that basis.  Judge Bea (like the district court) also notes that Martinez lived thirty miles away from the courthouse, so there might be a punctuality issue.  But so did juror Allen, who the prosecutor didn't strike.  The difference?  Allen was White.

Judge Bea also speculates that maybe the prosecutor struck Martinez because this juror said he had some sort of disability that required him to stop working as a truck driver seven years ago, arguing that the prosecutor might have thereby been trying to ingratiate himself to the other jurors by relieving Martinez from juror service.  But Judge Tashima rightly responds that there's both no evidence for this speculation and, in any event, discriminating against the disabled in jury selection is also illegal.  I might also add that it's very unclear to me that striking a juror based on his disability is likely to make jurors happy with you, especially since (unlike some other jurors) Martinez never even hinted that he didn't want to serve as a juror.  Saying to someone:  "You're disabled, so we don't want you" is hardly something designed to make people pleased with your performance.

Judge Bea's best argument is his speculation that defense counsel might not have objected to the prosecution's dismissal of juror Martinez for strategic reasons that don't appear on the record.  Maybe there was eye-rolling.  Maybe the juror was wearing a funny hat.  Maybe the defense was happy with the juror being dismissed.  Who knows?  The defendant bears the burden of proving that there was ineffective assistance of counsel, Judge Bea argues, and that's not satisfied here.

But Judge Bea's defense -- while facially credible -- is mistaken.  Take the following hypothetical:  The jury venire consists of 50 persons; 30 White jurors and 20 Hispanic jurors.  The parties and the court each ask the jurors questions, but each of the juror's answers are unremarkable.  None of these answers give valid reasons for excusing a juror for cause, nor do any of the answers hint at potential bias in favor of one side or the other.  Notwithstanding that fact, the prosecutor strikes all 20 Hispanic jurors and none of the White jurors.  Defense counsel doesn't object.  Later on, the prosecutor says that he doesn't recall why he struck any particular juror, but says that it definitely wasn't on account of their race.

That's precisely the case here.  Only the numbers are different; here, we're talking about one juror instead of twenty.  But that doesn't matter; even the improper exclusion of a single juror is structural error that requires a new trial.

Judge Bea's arguments are identical in both the hypothetical and the present case.  After all, it's the defendant's burden in both cases.  Maybe all twenty jurors rolled their eyes.  Maybe the defense attorney was happy with their exclusion, and it was a strategic decision to let the prosecutor strike them.  The same arguments that Judge Bea makes would apply equally to the hypothetical.  But it's both implausible and, I submit, wrong to conclude that the defendant hasn't made out a case of improper race-based dismissal.  Both as a matter of policy and under existing doctrine.

If -- as here -- there's no apparent reason for striking a juror apart than their race, that seems enough to me.  Both at the explanatory phase as well as in an ineffectiveness challenge.  And that's exactly what we have here.

There are plenty of reasons why a juror might validly be struck.  Similarly, given the plethora of questions we ask jurors -- particularly in death penalty cases -- there are plenty of ways for a prosecutor to justify striking any particular juror.  Even, quite frankly, when the real reason is the juror's race.  Lots of questions.  Lots of answers.  Lots of ways to say:  "Oh, these twenty answers were why I struck them, and unless you can match all twenty of them to a different White juror to whom I asked the same question and I can't find a more pro-prosecution answer on a different question, I win, since I only need to win one of the twenty purported reasons."

But when neither the prosecutor or the court can come up with a persuasive reason for striking the juror apart from their race, other than sheer speculation that it must have been something off the record -- or that the defense attorney might be(for, again, reasons off the record) happy with that juror being struck -- that seems inadequate.  Because we know that  jurors are indeed struck based upon their race.  There's a long history of that.  And to think that it doesn't continue even today amounts to deliberately sticking one's head in the sand.  If you can't give a reason why the prosecutor struck a Hispanic juror but left a similarly-situated White juror on the stand, and are forced to admit "We dont' know," there's a reasonable default value.  And it's not that there must be some reason out there, so we should simply affirm.

I see no reason why Martinez was bounced off the jury.  I see no reason why the defense counsel, who didn't object to the dismissal of any of the Hispanic jurors who were bounced, would fail to object.  That seems to me error.  I'd reverse.

U.S. v. Gilchrist (9th Cir. - Oct. 3, 2011)

Smart(ish) move:  Getting a job at Wells Fargo under a fake name, adding your real name to various bank accounts of its customers as an additional "authorized account holder," and then taking money out of their accounts.  Upside:  Getting money from multiple accounts.  Easy.  Downside:  Not a ton of cash. $13,000 total.  Somewhat easy to eventually catch you.  (Smart move by Gilchrist:  When a fraud investigator for Wells Fargo talked to him about the theft, the second the investigator mentioned Gilchrist's real name, he walked out of the office that very second and never returned.)

Even smarter scam:  Check-kiting and identity theft.  A year later, Gilchrist starts opening up accounts at Wells Fargo using various fake names, typically d/b/a various (also fake) businesses.  He then deposits a plethora of (fake) checks to those accounts, and then withdraws the money before Wells Fargo gets the check back.  Upside:  He knows the system from the inside.  Scheme works.  Repeatedly.  Lot of cash.  Over a quarter million dollars.  Downside:  It's a crime.  Like every crime, eventually, you're likely to get caught.  Especially if you keep doing it.

Stupid move (besides, of course, becoming a criminal in the first place):  When Wells Fargo refuses to reimburse Gilchrist on one of his fake accounts -- Gilchrist having claimed that someone "stole" the money using a fake name (when, in fact, Gilchrist was the thief), Gilchrist has the temerity to sue Wells Fargo in a civil action.

Uh, dude.  When you're committing massive bank fraud and embezzlement, it might behoove you not to stir things up.  By, like, filing a civil lawsuit.  Your goal is less attention, my man.  Not more.

Gilchrist ends up getting two years in prison.  Affirmed.  That's not much, my friends.  Makes embezzlement seem like a pretty good deal.  A lot better than traditional bank robbery, anyway. 

Knowing nothing other than the facts described above, I might well have put a thumb on the scale towards more prison time.