Scheenstra v. California Dairies (Cal. Ct. App. - Jan. 30, 2013)

Running a dairy is apparently pretty complicated.  You'd think it's basically just about buying cows and milking them.  But in the modern world, there's tons of stuff that goes on behind the scenes that's incredibly complex.

San Mateo Union High School Dist. v. County of San Mateo (Cal. Ct. App. - Jan. 31, 2013)

When I first saw the caption of this opinion, I tried to guess what it might be about.  After all, it's pretty unusual for a school district to sue a county.

Litigation about class size?  Tax revenues?  Teacher contracts?  Playground equipment?

I spent ten seconds or so trying to guess.  I could have taken a year and would never even have come close.

It's about an investment in Lehman Brothers that went bad.

Ah, San Mateo.

U.S. v. Jesus-Castenada (9th Cir. - Jan. 30, 2013)

It might be one thing if the confidential informant in thsi case testified at trial in a burka, or perhaps even (as the government requested) with dark sunglasses. 

But he didn't.  The CI wanted to partially "disguise" his identity because he was allegedly involved with investigations against the Sinaloa cartel.  The trial court let him do so by wearing a fake mustache and a wig.  The defendant wanted his conviction reversed on this basis.

There's a Texas state court case that reversed a conviction when a witness was allowed to wear dark sunglasses, a baseball cap pulled down over his forehead, and a jacket with an upturned collar.  You can see why.  If -- as in that case -- the jury can't view the eyes, mouth, or other facial expressions of a witness, it's going to be much harder for the jurors to judge the witnesses' credibility.

But a fake moustache and a wig don't cover one's face.  So Judge Bea holds -- correctly, in my view -- that there's no reversible error here.

I just wanted to add one thing to Judge Bea's opinion.  Something that he doesn't mention, but that I view as alternative support for the Ninth Circuit's holding.

Remeber that even normal (i.e., non-CI) witnesses are allowed to grow a mustache.  Even normal witnesses are also allowed to wear a wig.  Or toupees.  Or hair weaves.  That's all the CI did here.  The only difference is that the CI here did so for reasons apart from trying to look more attractive.  But that's a distinction without a difference.  If you can wear a mustache or toupee -- and you can --  you can wear 'em regardless of the reason.  Whether it's beauty, vanity or "disguise" doesn't matter.

In short:  Mustache and hair weaves:  Okay.  Burkas:  Different story.

People v. Yearwood (Cal. Ct. App. - Jan. 29. 2013)

One of the problems with initiatives is that they're sometimes not very well worded, and -- arguably because they have not gone through the legislative process -- do not adequately address complicated procedural or substantive uncertainties.

That said, I'm not sure that even a bill through the Legislature would have expressly addressed the issue raised by this case.  Proposition 36 eliminated mandatory 25-to-life sentences for nonviolent three-strikers in the future, and also gave a limited safety valve for prior nonviolent three-strikers to attempt to get out of their sentence as well.  The statute doesn't say, however, which category applies to someone who's been sentenced but whose conviction is not yet final; e.g., because it was on direct appeal when the initiative became effective.  This substantively matters, because the safety valve for the latter category is somewhat smaller than the rules that apply to the former.

The Court of Appeal decides that the more limited safety valve applies to people whose sentences were not yet final.  As a result, Ricardo Yearwood may well find that the weed that he had in prison will indeed cost him 25 years to life.

Gregory v. Cott (Cal. Ct. App. - Jan. 28, 2013)

Primary assumption of the risk doesn't just bar claims for sports injuries.  It also bars claims or assault.  At least when you're the caregiver of an Alzheimer's patient.

Boxer.  Caregiver.  No practical difference.

Dichter-Mad Family Partners v. U.S. (9th Cir. - Jan. 28, 2013)

When you're a district court judge -- or, perhaps more accurately, the law clerk for a district court judge -- and you write a 70-page written opinion dismissing a complaint, you want to get a little love from the Ninth Cicuit if and when the losing party decides to appeal.

Judge Stephen Wilson gets it here.

The Ninth Circuit issues a per curiam opinion that adopts Judge Wilson's opinion as its own.  Which is good for nearly everyone.  Judge Wilson (and his clerks) get the glory.  The Ninth Circuit gets a complicated case off its plate quickly and easily.  The winning party wins.

The only people who are unhappy are the losing sides.  Who wrote an entire Ninth Circuit brief -- one that presumably had lots to say about the (alleged) defects of the district court's opinion -- but who don't get the satisfaction of having the Ninth Circuit tell them why they're wrong.

Though that also happens with unpublished Ninth Circuit decisions every single day.

So bask in the admiration, Judge Wilson's chambers.  Nice opinion.

In Re Marriage of Campi (Cal. Ct. App. - Jan. 24, 2013)

Here's a family law case.  A house is San Mateo worth over a half million dollars.  Stock options.  Multiple timeshare condos.  The husband works, the wife stays at home.  For fun, in his spare time, the husband plays the accordian.

Pretty routine in San Mateo.  What does the husband do for a living?  Lawyer?  Investment banker?  Tech guy?

Nope.  Garbage collector.  Making $84,000/year.

Miller v. Bank of America (Cal. Ct. App. - Jan. 25, 2013)

Class action attorneys make a boatload of money, right?  They file all these easy lawsuits and then recover millions of dollars in attorney's fees.  What a racket, eh?

Except, of course, for those cases in which the litigation lasts fifteen years and in which the attorney recovers absolutely nothing.

Like here.

People v. Tinker (Cal. Ct. App. - Jan. 24, 2013)

Just in case you think that selling methamphetamine is as "cool" as it is on television, take a look at Alan Tinker.  He's in the real world.  He's caught in possession of $30,000 worth of meth.  So he's a high-volume dealer.

And he lives in his van.

Avidor v. Sutter's Place (Cal. Ct. App. - Jan. 23, 2013)

Law not working out for you?  What about becoming a poker dealer?

Apparently even dealers at fairly low-level card places make a fair amount of money in tips.  Around $750 to $1500 a week.

Not bad.  Especially since I'm sure they declare every penny to the IRS.

Ratcliff v. Terrones (Cal. Ct. App. - Jan. 22, 2013)

Sometimes I wonder what the appellant's attorney was smoking that made counsel think that s/he had any chance of success on appeal.  Like here.

The trial court here was obviously correct.  You're allowed to have a relative create a will for you even if that relative is related to a beneficiary.  That person simply has to be a relative at the time of the creation of the will.  Appellant's theory that the person also has to be a relative whenever you die is simply silly.  It's silly in theory, silly in practice, and is also an argument that's wholly unsupported by the relevant statutory text.  (Among other things, how could someone know in advance to whom  s/he is necessarily going to be related when s/he dies?  Lots of things can happen, particularly with respect to in-laws.)

Sometimes you read an appeal and just scratch your head.  How could counsel be so blinded by their own "brilliance" that they think they've got a shot on appeal?  That the appeal's worth the time and/or money?

Classic example.

Cardio Diagnostic Imaging v. Farmers Ins. Co. (Cal. Ct. App. - Dec. 18, 2012)

No opinions today.  A holiday for most regular people.  So it permits us to answer that age-old question:  Is water from an overflowing toilet "Water that backs up or overflows from a sewer, drain or sump?"

Yes, according to Farmer's Insurance Company.  (Apparently, according to their commercials, Farmers' policies cover obscure space junk falling onto your house, but not overflowing toilets.  Which is a good business model, if you think about it.  Though not so good for policyholders.)

The Court of Appeal agrees with Farmers.

Remember that the next time you see those commercials.  "We are Farmers.  Da-da-da-da-da-dump."

U.S. v. Zepeda (9th Cir. - Jan. 18, 2013)

I'm not sure that either the majority or the dissent really deal with the centrally troubling part of this case.

The problem is a straightforward one, and -- sadly -- one that occasionally shows itself in various different circumstances.  What do you do in a criminal prosecution if the government accidentally introduces insufficient evidence of something's undeniably true?

In this this case, the particular problem is that the government had to establish that the defendant was an "Indian" (in order to justify a federal prosecution), and indeed introduced evidence to that effect, but forgot to introduce evidence that the particular tribes to which defendant belonged were federally recognized.  Those tribes are, in fact, federally recognized.  No one disputes -- or could reasonably dispute -- the validity of those truths.

But there was no evidence of those undeniable facts below.  Does that mean that the defendant gets to walk free -- even (as here) in his commission of an incredibly serious crime -- and never be charged again, since double jeopardy would then bar a successive attempt to prosecute him?

The Ninth Circuit says "Yes."  Whereas the dissent would let the Court of Appeal take judicial notice of the federally recognized status of the tribes and hence affirm the conviction.

Both of these approaches seem to me to have serious problems.  I'm somewhat sympathetic to the view of the dissent, since it avoids the problem of letting a criminal go free purely due to a blunder of the constable.  (It's also worth a reminder that, unlike reversals in most cases, which merely require the prosecution to conduct a new trial, because the reversal here is for insufficiency of the evidence, this is in fact a case where the defendant gets off scot free.)  But the majority's correct, in my view, that you can't do that.  Yes, Federal Rule of Criminal Procedure 201 permits a court -- including an appellate court on appeal -- to take judicial notice regarding whether a particular tribe is federally recognized.  But it also says that, in a criminal trial, the court is required to instruct the jury that it is not obligated to accept that judicially noticed fact as true, and there's a Sixth Amendment right to have the jury decide that "fact" notwithstanding the instruction.  So I think that the majority's correct that you can't affirm the conviction here merely through resort to judicial notice.

At the same time, the majority's reversal of the conviction and (effective) preclusion of a retrial on double jeopardy grounds seems troubling as well.  Not only does it seem inequitable to the victim and deleterious to society, but it also seems somewhat at odds with other criminal law doctrines which we repeatedly employ.  For example, we constantly affirm convictions based on purported "harmless errors," including lots of errors that likely have far greater practical consequences than the one here.  We do so because we don't like to alter results on the basis of an error which likely didn't affect the result.  The theory posits that trials are chock full of errors, but only those that actually might change the result are the ones about which we care.

But the error here is surely as harmless as any error can possibly be.  Was it wrong not to include some testimony and/or an instruction about whether the various tribes were federally recognized?  Sure.  Did that error change the result; in other words, would the result possibly have been different but for the error?  No way.  No freaking way.  There's a zero percent probability that the defendant would have been able to successfully persuade a jury that the tribes here were not recognized by the federal government as required by the statute.  If there were ever a mistake that we can confidently be assured didn't/wouldn't change things one iota, this is it.

Now, I recognize that there's arguably a qualitative distinction between "regular" trial errors and evidentiary omissions such as the one here.  But I'm far from confident that this different should matter.  If it's harmless, it's harmless.  End of story.

Does that mean that, in the end, I agree with the dissent?  (Albeit for different reasons.)  No.  I'm at least tentatively of the view that our concern for the Sixth Amendment -- as well as the potential (if only in theory) for permissible jury nullification -- means that we can't affirm convictions like these based upon a routine application of harmless error doctrine.  The defendant should likely be entitled to a trial in which all of the elements of an offense are, in fact, set forth and established, and found to be so by a jury.

But at least in cases like this one, instead of a reversal of the conviction and a double jeopardy bar, I think it's plausible to hold that a remand for retrial should be permitted.  That would avoid the subpar consequences of an effective acquittal while still preserving the defendant's Sixth Amendment right to be convicted by a jury -- one that's entitled to reject even judicially noticed facts were it to so elect.

I understand that this would require a reevaluation of existing double jeopardy principles, since (so the argument goes) a defendant is "entitled" to an acquittal if the problem is (as here) insufficiency of the evidence produced at trial.  But I think this is a pretty good case in which to articulate and apply such a vision.  At least when the omitted element involves facts subject to judicial notice, I don't see why the double jeopardy clause should apply.  Just like we don't reverse convictions for other sorts of harmless error.  We might still be compelled to order a retrial rather than permitted to affirm the conviction notwithstanding the error, but the relief to which the defendant would be entitled would be a retrial -- not a preclusive finding of "not guilty."

The problem here doesn't just exist in Indian cases.  There are all sorts of analogues in other criminal cases as well; for example, federal bank robbery cases in which an element of the offense is that the bank is FDIC insured -- which virtually all of them are -- in which the prosecutor forgets to establish this element at trial.  In my view, whenever the error involves the omission of a fact properly subject to judicial notice, the proper remedy on appeal should be a reversal and remand for retrial rather than merely the former.

In this particular case, the defendant doesn't entirely go free, since -- as it so happens -- one of his convictions (for conspiracy) applies to Indians and non-Indians alike.  (Put this down as yet another reason why the crime of conspiracy continues to be a prosecutorial darling.)  But he nonetheless gets entirely absolved of multiple incredibly serious counts.  Which ain't right.

 So ponder whether a third path for cases like this one might be worth considering.

Furnace v. Sullivan (9th Cir. - Jan. 17, 2013)

You want a vegetarian meal, you say? 

Here you go.  Here's some pepper spray in the face.

Kassey S. v. City of Turlock (Cal. Ct. App. - Jan. 17, 2013)

Here's a creative attempt to hold a City vicariously liable for a police officer's sexual assault of a minor despite precedent holding that there's no such liability.  It nonetheless doesn't work.

Momma, don't let your babies grow up to do ride-alongs with cops.

In Re Hailey T. (Cal. Ct. App. - Dec. 19, 2012)

The state would never take away your children, right?  You're a good parent.  No domestic fights.  No substance abuse problems.  A good and loving set of parens.  The worst that's ever happened to your kids was an isolated accidental injury, as happens to nearly every child at some point.  DCFS doesn't take children away in those circumstances, right?

Read this opinion -- from my hometown (San Diego) -- and see if you still agree.

There but for the grace of God . . . .

Bell v. Feibush (Cal. Ct. App. - Jan. 15, 2013)

Sometimes I mention a case just because it's helpful to those who litigate.

Like this one.

We all know that fraud claims open up the possibility of punitive damages.  Did you know that there was an obscure California statute that also allows you to recover mandatory treble damages, as well as attorney's fees, in such cases as well?

There is.  It's Section 496 of the Penal Code.  You might think it's only applicable (if at all) to people who actually steal property.  But it includes theft by false pretenses.  Including pretty much every fraud claim you might allege.  At least according to the Court of Appeal.

Pretty neat.  Didn't know that before today.  Something that I'll definitely use in the future.

Wilson v. CIR (9th Cir. - Jan. 15, 2013)

Judge Bybee authors a dissent that makes a very good (albeit sub silentio) argument that the Supreme Court should grant certiorari in this important case.

There's only one problem.  It's a tax case.  About administrative law.  Zzzzzzzzzzzz.

But still.  It's a darn good argument.  Listing all sorts of splits and competing views and saying, essentially, that even though this might seem to be the most soporific issue in the universe, it's actually something that's important.  Look how he begins:


"The question presented in this case is one fundamental to administrative law: What is the scope of review—and, concomitantly, the standard of review—of the Tax Court’s review of the Secretary of the Treasury’s decision to deny equitable relief to an innocent spouse? . . . .


The question is of more than passing interest.  It goes to the heart of the place of the Tax Court in our administrative system.  The question has splintered the Tax Court, which has proceeded along three different paths, dragging four circuit courts with them in the process. The Tax Court initially held that it would review the Secretary’s exercise of discretion under § 6015(f) for abuse of discretion.  [Cite]  The D.C. and Fifth Circuits confirmed that position.  [Cites]


Then, a divided Tax Court changed its mind and held that it would use a de novo scope of review—including trial de novo—but an abuse-of-discretion standard of review. [Cites]   That position was confirmed by a divided Eleventh Circuit. [Cites]


Finally, a divided Tax Court changed its mind yet again and decided that it was entitled to both a de novo scope of review and a de novo standard of review.  [Cites]


The majority’s position not only departs from the D.C., Fifth, and Eleventh Circuits, but also its reasoning is
inconsistent with the Eighth Circuit’s decision in Robinette v. Commissioner.  439 F.3d 455, 459–61 (8th Cir. 2006) (rejecting the Tax Court’s claim to de novo scope of review in proceedings under 26 U.S.C. § 6330 and concluding that the Commissioner’s decision was subject to abuse of discretion review under APA § 706(2)(A)); see also Keller v. Comm’r, 568 F.3d 710, 718 (9th Cir. 2009) (citing Robinette with approval).

I cannot follow the majority in this convoluted path. Because the Tax Court is a “reviewing court” for purposes of the judicial review provisions of the APA, I am persuaded that its scope of review is the administrative record before the IRS, and that the Tax Court can only review the Secretary’s exercise of discretion for an abuse of discretion pursuant to 5 U.S.C. § 706(2)(A).  I respectfully dissent."

Almost makes you want to read the majority opinion and dissent in their entirety, right?  Right?

Almost.

We'll see if the Supreme Court feels like being an uber-nerd and take this one up.

In Re Marriage of Facter (Cal. Ct. App. - Jan. 14, 2013)

One of the downsides of being an attorney is that if you get divorced and litigate the case, the details of your personal life -- or at least your financial life, and well as your interactions with your spouse concerning these matters -- may be set forth in a publication read by your colleages.  For example, the printed pages of the California Appellate Reports.

Such is the life of Sherman & Sterling attorney Jeffrey Facter.

So be good to your spouse.  Even if, as here, you have a prenup.

Riverisland Cold Storage v. Fresno-Madera Prod. Credit Ass'n (Cal. Supreme Ct. - Jan. 14, 2013)

Wow.  The California Supreme Court today unanimously overrules longstanding precedent -- first articulated in 1935 -- and holds that parties can indeed make fraud claims even if those claims are inconsistent with the express terms of a written contract.

In short, Pendergrass bites the dust.

This will make fraud claims -- as well as recission claims based on fraud -- a lot, lot easier to assert.  The Court is persuaded that the result will be a net decrease in fraud, since now you won't be able to defraud people and then write a contract that effectively covers your fraud.

But there's a different view as well.  Before, a party couldn't get out of a contract by claiming that the other side orally told them something different.  Now they can.  And as long as you have your own testimony, you get past summary judgment as well.  So you get a trial and/or a settlement.

Not bad.  Not bad at all.  Which may in turn give you a pretty large incentive to "remember" alleged oral statements that the other side purportedly told you that were inconsistent with a contract that did not turn out as favorably as you had hoped.

It's a big day for civil litigation in California.  For better or worse.

Fortman v. Forvaltningsbolaget Insulan AB (Cal. Ct. App. - Jan. 10, 2013)

You can sue for negligent infliction of emotional distress when you watch a house burn (knowing that your daughter is in it) even though you don't know why the house burned; i.e., that it was the result of defendant's negligence as opposed to a candle, lightning, etc.

But you can't sue for NIED when you actively watch your husband die in a scuba accident if, at the time, you didn't know that it was the defendant's product that caused him to die (as opposed to, say, a heart attack).

So holds the Court of Appeal.

P.S. - So the winner in this case is Forvaltningsbolaget Insulan.  Try saying that three times fast.

P.P.S. - One of the attorney losers in the case is Lars C. Johnson.  Though the caption of the opinion lists him as "Lars Christian".  Might want to change that.

Arkansas Teacher Ret. Syst. v. Mozilo (9th Cir. - Jan. 10, 2013)

You see a fair number of Ninth Circuit cases certifying questions to the California Supreme Court, the Arizona and Nevada Supreme Courts, etc.  Places in the Ninth Circuit.  It even certifies questions on occasion to courts in the CNMI and the like.

But you rarely see the Ninth Circuit certify questions to courts outside the Ninth Circuit.

You have now.

The Ninth Circuit certifies this one to the Delaware Supreme Court.  As you might imagine from the location (Delaware) and the caption -- litigation between a pension system and the former head of Countrywide -- it's a corporate shareholder (derivative) action.  So Delaware law governs. 

And the Ninth Circuit would like to know what it says.  From the horse's mouth rather than figuring it out for itself.

Your move, tiny state that borders the Atlantic.  A big state that borders that Pacific awaits your words.

Castrijon v. Garcia (9th Cir. - Jan. 9, 2013)

It's an immigration case.  Sure, Judge Reinhardt's on the panel.  He's even writing the opinion.  So you have a keen sense from the get-go how the case is going to come out.

But the question presented is whether kidnapping is categorically a crime of moral turpitude.  Kidnapping.  Come on.  Even Judge Reinhardt has to answer that question in the affirmative, right?

Nope.

Well then, certainly someone's going to dissent, right?  Judge Clifton?  Randy Smith?

Wrong again.

Which makes one -- or at least me -- say:  "Really?  Again:  Kidnapping?!  Not a crime of moral turpitude?  Seriously?" 

So I read the opinion.  At the outset, pretty skeptically.

But, that said, I'm on board for a lot of what Judge Reinhardt says.  Both in this opinion and in others he's authored.  What counts as "moral turpitude" is totally vague.  What counts as "categorically" an offense that involves such a quality is even more amorphous.  We're talking about social mores here -- things that are in a constant state of change -- and inherently vague ones at that.  So picking out some offenses amongst others and calling them "inherently' turpitudinous is really hard.  That's how I initially approach the subject, and I'm sure Judge Reinhardt agrees.

But dude.  We're talking about kidnapping here.  Not sodomy.  Not something that changes over time.  We are talking about a crime that we've always -- always -- taken extremely seriously, and that I'm confident will always be a serious crime.  Everywhere.

Still, we've got to remember that calling something a named offense isn't always accurate.  Sometimes what you think a particular crime entails is actually far different from the statutory elements.  So we have to look deeper.  Which Judge Reinardt does.

But this just heightens my initial impression.  Judge Reinhardt repeatedly notes that the statutory elements of simple kidnapping in California don't require that one "intend" to do harm to a victim, or intend to do bad things to them once you get them to where you're taking them.  Fair enough.  I get that.

The statute nonetheless requires that the defendant take the victim by force or by instilling fear.  So we are talking about forceful kidnappings.  Well, geeze.  Seems to me those are wrong.  Seriously wrong.  When you force someone to do something against their will, I have a keen sense that's included in the category of offenses which the oldsters called malum in se and what we might generally call intrinsically wrong.  Forcing someone to do something against their will:  You can't get much more wrong than that, right?  That's why we generally have big sentences for the underlying crimes.

Look, Judge Reinhardt is smart.  He nonetheless starts to sway me a bit.  He says -- correctly -- that these offense need to be really serious before they count as moral turpitude.  Seriously serious.  Does kidnapping really count?  As I'm reading the opinion, I still tend to think so.  But he compares it to murder.  To things that are really, really serious.  Which makes me think:  Well, okay, maybe.  "Simple" kidnapping may be bad, but I agree that one might view it as qualitatively different than those other offenses.  Murder's worse than taking someone against their will.  Though both are bad.

(Mind you, this argument only gets Judge Reinhardt so far.  Murder's worse than kidnapping, which argues in favor of Judge Reinhardt's holding.  But incest is a categorically turpitudinous crime -- presumably even consensual adult incest between 68 year old siblings who never met before they did the dirty deed -- and if you ask me whether kidnapping is "worse" than that, my answer's pretty clear.  So the examples go both ways on that issue.)

So we've got to figure out the dividing line.  One that separates the "bad" from the "really" bad.  Judge Reinhardt has one, and it's the crux of his argument.  He says that categorically turpitudinous offenses either involve vulnerable victims -- e.g., children -- or an intent to injure or an actual injury.  That's indeed what Ninth Circuit precedent says.  So Judge Reinhardt's best argument is that simple kidnapping doesn't always involve vulnerable victims (because even competent adults can be kidnapped), doesn't require an intent to injure (true), and doesn't necessarily involve injury either.  So there you go.  Doesn't fit the definition.

But hold on a second.  What about that last part?  Necessary injury.

What Judge Reinhardt says -- persuasively -- is that it still counts as kidnapping even if you don't (for example) cut the victim during a knife with the process.  So if only physical harm counts as an injury, Judge Reinhardt seems right.

But I'm not at all sure that's in fact accurate.  We routinely count emotional harm as an injury, and often seriously.  Take rape, for example.  Some rapes seriously injure the victim physically, to be sure.  But the biggest impact may be psychological.  How it makes the victim feel.  The helplessness.  The requirement that one do something without one's consent.  The violation of autonomy.  We think of those things as very serious consequences -- and (appropriately) very seriously punish such offenses -- and constantly call them "injuries".

Those same injuries inherently exist with kidnapping.  Helplessness.  Nonconsensual acts.  Violation of autonomy.  Every forceful kidnapping -- every single one that meets California's statutory requirements -- results in those harms to the victim.

This seems to me a big problem with the majority's analysis.  The dividing line between offenses is a vague one, to be sure.  But if you apply the line that precedent has drawn, and that Judge Reinhardt discusses at length, the "actual injury" portion seems pretty strongly to point in the direction of finding these offenses to be categorically qualify as crimes of moral turpitude.  It seems to me that Judge Reinhardt's analysis assumes sub silentio that we're only talking about purely physical, demonstrable harm.  But we're not.

One other thing as well.  Which, in a concrete way, somewhat highlights this point.

To support his position, Judge Reinhardt has to come up with actual ("non-hypothetical") kidnapping offenses in California that wouldn't count as moral turpitude.  He does.  His primary example is a protest case in 1972 in which black students at a college forcibly surrounded some school administrators and led them across the campus (against their will) to talk to the college president.  Judge Reinhardt notes that the California judiciary affirmed the defendants' conviction in that case, and accordingly argues that the statutory elements of the crime in California thereby include conduct that doesn't involve vulnerable victims or actual injury.

One could certainly take that view.  The school administrators in that case were indeed physically unharmed.  No one hit them or punched them or sliced them with a knife.

But Judge Reinhardt notes, in passing, that some students "pushed" the administrators, and also "made threats" to make them continue moving.  These acts are of no small importance, since remember that the statute categorically requires the use of force and/or threats of physical harm.

Which made me go back and look up the underlying case.  Which mentions that the "threats" to which Judge Reinhardt obliquely refers to entailed the students telling the administrators that "if the man comes in, we're going to do you" (i.e, if the police come in, we're going to kill you) and, during the forced march, telling the victims "move along whitey or we're going to stick you" (i.e., keep moving or we will stab you).  (That the victims took these threats seriously was no surprise, and in fact, during the forced trek, one black student in fact punched a white student in the jaw.)

Now, one could say -- as Judge Reinhardt does -- that since the students did not actually stab or kill the victims, there was no actual injury, and that the example establishes that simple kidnapping need not entail a "serious" crime.  But think about it another way.  From the perspective of the victim.  You're taken against your will by a crowd of students that's actively threatening to kill you.  You fear for your life.  Reasonably.

What about that as "injury"?  I wouldn't be surprised in the slightest if you had trauma.  PTSD.  Might not even be able to work as a teacher ever again.  And even if you "toughed it out," being subjected to such incredible stress and the underlying inherent violation of your autonomy is injury.  Always.  Every time.  A violation that I think does, in fact, count as a serious injury.

So I'm not sure I take away from Judge Reinhardt's examples what he wants me to take away.  (The same, by the way, goes for his other example, which involves a parent kidnapping his adult child who has gone to live with her boyfriend against his wishes.  Yeah, there's no intent to injure.  But from the perspective of the 18-year old victim, who had a right to live with -- and perhaps even marry -- her boyfriend if she wanted, and without her father's consent, there's definitely injury nonetheless.  Inherently.)

All of this is a very long way of saying that I wonder if the panel really gets this one right.  Judge Reinhardt recognizes at the end of his opinion that his result might be somewhat counterintuitive, and I give him props for that.  He's right.  He's also right that just because something might seem wrong at first glance doesn't mean that it is.  That's why we reason these things out.  That's why we think deeply.

But I've done so, I think.  And despite the fact that, at points, Judge Reinhardt's opinion had me persuaded (or nearly so), in the end, I think he might be wrong.  I agree the line's fuzzy.  Very much so.  But if the line is what it appears to be, then I think kidnapping might well fall on the other side of it.

Which is a different way of saying that sometimes one's initial impressions are wrong.  But sometime's they're actually right.

P.S. - Let me end with a simple point.  One that someone tracks the above analysis.  Everyone agrees that rape is a crime of moral turpitude.  What about sexual assault?  Someone grabbing someone's breasts or crotch over their clothes.  It can happen to adults, and both genders, so no vulnerable victim, and might also occur from a person who doesn't intend harm and not involve "physical" injury.  Does only rape counts as a turpitudinous offense, or does sexual assault count as well?  They seem darn similar to me, despite the fact that the latter may well involve less physical harm.  The offense is the assault on bodily integrity.  That's why it's malum in se.  Ditto, in my view, for kidnapping.

U.S. v. Olsen (9th Cir. - Jan. 8, 2013)

This opinion is exceptionally timely.  For me, anyway.

It's a neat little habeas case.  Kenneth Olsen gets convicted in 2003 of knowingly possessing a biological toxin for use as a weapon.  No small crime, and certainly not a routine one.  Olson gets sentenced to over a decade in federal prison.

Most of the facts of the case are undisputed.  Essentially, Olsen gets keenly interested in stuff like the Anarchist's Cookbook and stupidly leaves a printout of the Terrorist Encyclopedia at his work, which his co-workers find and freak out.  His employer then cans him after a search of his desk reveals a ton of other printouts, plus some test tubes full of various stuff.  Including castor beans.  Which is used to make ricin, a potent toxin.  (Fans of Breaking Bad will note many parallels here, as various episodes have chemist Walter White making ricin as well.)  So the FBI gets involved, charges are brought, and we are where we are.

Olsen's defense is a simple one.  He admits to making the stuff and doing lots of internet searches, but says that he was just intellectually interested in the stuff.  Creepy, perhaps, but not a felony.  He didn't posses the ricin "for use as a weapon" -- and that's what he's charged with.  Yes, he looked at how to make it, how various poisons are undetectable, etc.  But he wasn't actually going to use it.  That's his defense, and if he's right, he's innocent.

But the U.S. has a pretty good piece of evidence against him.  One they play up a lot during the closing argument.  The U.S. has an expert who says that he tested an Equate pill that was found in Olsen's possession and that pill tested positive for ricin.  Why put the ricin on a pill if you're not in fact intending to slip it to someone?  Gotcha.  You're guilty.

You can see why the U.S. highlights this testimony.  'Cause making ricin itself might be a lark, but putting it on a delivery system -- well, that's more than just curiosity.

There's only one problem.  It comes to light long after Olsen's conviction that the expert who tested the pill is a hack.  He's got tons of problems with his tests, and his tests (e.g., DNA tests) have been conclusively shown to have put innocent people in prison.  Plus, it turns out that the relevant AUSA knew about the ongoing investigation into this expert at the time of Olsen's trial, but didn't reveal all he knew.  Hence there's a very strong Brady claim.  One made even stronger by the fact that Olsen has an expert on habeas who says that the expert almost certainly cross-contaminated the Equate pill with ricin, hence leading to the erroneous finding.

So the central question for the Ninth Circuit becomes:  Is this damning to Olsen's conviction?  It is a "reasonable possibility" that destroying the expert's credibility about this crucial piece of evidence may have changed the result of the trial?

The Ninth Circuit says:  "No."  The evidence against Olsen, the panel says, was "overwhelming".  What was overwhelming about it?  His lengthy -- super lengthy -- research over the internet.  Only someone who was actually planning to kill someone would have done that.  No way that someone does all this stuff merely because they're (weirdly) curious about this stuff.  No way at all.

To which I have two things to say.

First, I'm far from sure about this.  That may seem super weird for Ninth Circuit judges.  Who likely do not share similarly morbid curiosities.  But there are a lot of strange dudes out there, my friend.  A plethora.  With weird interests that you can't possibly imagine.  People do strange stuff in their spare time.  Things you can't comprehend.  Is it really the case that no one would take it upon themselves to make ricin just to see if they could?  Who would spend hours and days researching the internet just to see if they could make an undetectable poison?  No one?  Beyond a reasonable doubt?

Don't forget, by the way, that as far as I can tell, the prosecution presented no evidence whatsoever about anyone who Olsen had a grudge with.  No one that he actually disliked or wanted to kill.  It's possible, of course, that Olsen had hidden hatreds, or grandiose plans.  But couldn't a reasonable jury perhaps find that he did all these internet searches about undetectable poisons just because he was (in whatever way) crazily curious about the subject matter?  Not because he was actually planning on killing someone?  There's not even a chance that a reasonable jury could have so concluded?  Really?

Which brings me to my second point.  Why this case is so personally timely for me.

Yesterday afternoon, I read this story, which was on the front page of Yahoo!.  About a million-dollar lottery winner who died the day after he cashed his lottery ticket.  The coroner who conducted the resulting autopsy ruled that this death was caused by hardening of the arteries, and into the ground the guy went.  Many months went by and, for whatever reason, a relative kept pushing for more tests on the body.  Finally the authorities relent, and -- just to shut the relative up -- they do more tests, and throw in a random test for cyanide into the mix.  Bingo.  He guy was indeed killed by a fatal dose of odorless, colorless cyanide.  Murder.

Which made me think:  Wow.  What a series of events.  Amazing.

But it also made me think:  Who committed the murder?  A wife?  Business partner?  Stranger?  Who has access to cyanide?  Seems like a pretty tough thing to get a hold of, right.  Or to make.

So what do I do?

Search the internet.  For a fairly lengthy period of time.  About how to make cyanide.  About what places (allegedly) sell it.  About whether a determined person with minimal scientific training could in fact get their hands on cyanide in order to kill someone.  And about whether (and how) a death by cyanide would be revealed in standard -- or even ordinary expanded -- autopsy.

In other words, if you looked at my internet logs for yesterday afternoon, I bet you that they would look stunningly like Olsen's internet logs.  Coincidentally enough.

So much so, in fact, that as my wife and I were driving home from dinner last night (it was our "date night"), I randomly mentioned to her that I was doing a lot of research into cyanide that afternoon, so that if anyone actually died as a result of it anytime soon, I was worried -- I said jokingly -- that I'd be the primary suspect.

Then I read today's Ninth Circuit opinion.  Freaky.

The point is, I had -- and have -- utterly no intent to kill anyone, anywhere when I did my "extensive" internet search yesterday on the practicalities of how to manufacture cyanide and whether it works as an undetectable poison.  None.  But that same evidence, the Ninth Circuit says today, constitutes such "overwhelming" evidence of an intent to use a product as a weapon that there's no possibility at all a jury could possibly come to an opposite conclusion.

Are there some difference between what Olsen did and what I did?  Sure.  I spent an afternoon, and he spent a year.  I didn't actually make the stuff, and he did.

But in my view, that may well simply goes to the extent of the intellectual (or morbid) interest, not to intent.  I was only slightly interested in cyanide, whereas Olsen was clearly very interested in ricin.

But interest doesn't necessarily equate to a desire to kill someone.  Or at least a jury might want to hear evidence about who the defendant allegedly might have wanted to kill before concluding that, beyond a reasonable doubt, a defendant did indeed secretly want to kill someone.

And if they learned that the Equate pill that the U.S. said was indeed full of ricin did not, in fact, have any ricin on it, a jury might just conclude that they're not morally certain that the defendant intended to kill someone by slipping them that pill.

Am I say that Olsen's unquestionably innocent?  Nope.  Maybe he's a potential mass murderer.  Or single murderer.  Maybe -- despite having a year to make ricin -- he just finished actually making it and the authorities grabbed him up just before he was about to kill someone.

But maybe -- just maybe -- he was a tinkerer.  He searched the internet and made the stuff and thought of himself as a modern Walter White, but never actually intended to kill anyone.

One thing I'm confident about.  The fact that your internet logs demonstrate extensive searches into a particular undetectable poison and the means to manufacture it don't prove that you're out to kill someone.

That I know.  Firsthand.

Furtado v. State Personnel Bd. (Cal. Ct. App. - Jan. 7, 2013)

If you want to work in a prison, you have to be able to beat prisoners with a baton.  Hard.

Which is a nontechnical way of saying that if you can't lift a baton over your head with two hands -- as Bruce Furtado can't (as the result of an automobile accident) -- you cannot be a peace officer in a prison.  The Court of Appeal holds that it's not an "accommodation" to excuse Mr. Furtado from this requirement, but rather would fundamentally change the nature of a peace officer.

You can see why.  Sometimes inmates need to be beaten.  And even if your usual job is filing papers, during a riot, we'll need all the beat-sticks we can muster.

So v. Shin (Cal. Ct. App. - Jan. 3, 2013)

No D&C is fun.  But some are bigger nightmares than others.  This one's definitely up there.

I'm not sure how the trial court could get this one so wrong.  Glad the Court of Appeal was able to step in.

Jayne v. Sherman (9th Cir. - Jan. 7, 2013)

How long after oral argument does it take to issue an opinion that simply adopts the district court's opinion as your own?

Two months.

J.R. v. D.P. (Cal. Ct. App. - Dec. 21, 2012)

Nothing from the Ninth Circuit today.  Nothing from the California Court of Appeal either.  A lazy Friday in 2013.

It nonetheless gives us a chance to try to resolve difficult problems.  Like this one:

Biological Father (BF) is married to Wife.  Biological Mother (BM) is living with Boyfriend.   BM is having an affair with BF but also sleeping with Boyfriend, and gets pregnant.  BF and BM get a paternity test that shows that BF is the father, but BF says that can't be true because he's had "an operation" so wants a new (more accurate) paternity test after the child is born.

BF and BM break up, the kid is born, and BM marries Boyfriend.  Boyfriend doesn't know about any of this, and signs a voluntary declaration of paternity in the hospital when BM represents (in writing on the relevant form) that no one else but Boyfriend could be the father; i.e., that she was not sleeping with anyone else.  BM and Boyfriend raise the kid together.

Then Wife -- presumably upon learning of the affair -- tells Boyfriend about the test results.  Boyfriend is profoundly bummed, but still wants to raise the kid as his own.  But BF now wants joint custody of the child.  So sues.  Whereas BM and Boyfriend don't want BF involved.

I have no idea the right thing to do in a case like that.  No idea.  It's just a monster clusterfart.

Here's what, in fact, we do.

Whether that's the right thing?  Best for everyone (especially the child)?

No clue.

People v. Stender (Cal. Ct. App. - Jan. 3, 2013)

This (among other things) is why you shouldn't have anything to do with a suspended and/or disbarred attorney.

It can create a world of trouble.  A morass from which you shall struggle mightily to ever recover.

U.S. v. Xu (9th Cir. - Jan. 3, 2013)

Defendants are four Chinese nationals who embezzle a huge -- and I mean, huge -- amount of money from the Bank of China.  They get caught and flee to the United States using fake immigration documents, and are prosecuted in federal court.  They're unhappy about their conviction in the United States for extraterritorial conduct they performed in China, as well as their sentences -- a decade to twenty five years in prison for the various participants, plus a restitution order to repay $482 million.

The Ninth Circuit reverses the restituion order but affirms everything else.

Judge Goodwin's opinion seems right to me.  I'll also add that despite the defendant's unhappiness with the result in the United States, they should be darn happy that the U.S. doesn't have an extradition treaty with China.  Because I'm quite certain of the sentence they would have received there.

One day in prison, and a restitution order for a single bullet.

U.S. v. Yi (9th Cir. - Jan. 2, 2013)

How much time in prison -- if any -- should a defendant receive if he knows some ceiling tiles contain some asbestos but has a work crew scrape the ceilings wearing white masks instead of respirators (i.e., treats the job as containing no asbestos)?

The sentencing guidelines say:  "Around a decade in prison."  After some downward departures, the district court gives the defendant four years.

Affirmed.

Overly harsh?  Overly lenient?  Just about right?