Pending Ninth Circuit En Banc Questions in Criminal and Habeas Appeals (With Links to Oral Argument Audiofiles):

Note: some of the summaries are taken from the court's 10/17/05 list of pending en banc cases; I can't vouch for their accuracy or completeness.

Batson/Mixed-Motive Peremptory Challenges/standard for review of mixed-motive (both permissible and impressible reasons used to challenge juror) peremptory challenges. Companion case Kesser v. Cambra, 392 F.3d 327 (9th Cir. 2003), en banc rehearing granted 10/17/05; companion case: Leahy v. Farmon, no. 01-17467. Not yet calendared

Hobbs Act. Sufficiency of evidence of indirect effect on interstate commerce for Hobbs Act prosecution arising out of robbery and murder. U.S. v. Lynch, no. 02-30216, rehg en banc granted 9/23/05.

Breach of Plea Agreement. Buckley v. Terhune, no. 03-55045, rehg en banc granted Aug. 2, 2005; argued (audiofile) 9/27/05; submission deferred 10/7/05 pending mediation. The habeas claim was essentially for specific performance of the plea agreement in which the promised sentence was a determinate term of 15 years for second degree murder (rather than the statutory term of 15-years-to-life).

Search & Seizure (probable cause supporting to search computer for child porn). U.S. v. Gourde, no. 03-30262, 382 F.3d 1003 (9th Cir. 2004), reh'g gr. 7/14/05; argued (audiofile) 9/27/05. Three-judge panel found: 1. Warrant was sufficiently particular; 2. Warrant was not supported by probable cause. Too many inferences required. For 2 months, D subscribed to online porn site claiming to have thousands of images of teenagers. Numerous inferences were required to get from there to suspicion of D's possession or child porn, such as: images were children not adult, D knew they were children despite site's disclaimer that complied with federal law, that D actually downloaded rather than viewing or using site for other legal purpose, that D possessed any downloads 4 months after last had access to site. 3. Search not saved by Good Faith Exception. Court seemed impressed that gov't had the time to get much more information. Note: Judge Gould concurred. He might have found probable cause supporting warrant were he not controlled by circuit precedent.

Search & Seizure (legality of parole search where parole officer, but not searching officers, knew that the parolee was in custody and not at the residence searched): Motley v. Parks, no. 02-56648, 383 F.3d 1058, reh'g gr. Mar. 21, 2005; argued (audiofile) June 23, 2005.

Death Penalty Habeas: Landrigan v. Schriro, no. 00-99011, reh'g gr. Feb. 14, 2005; argued (audiofile) Mar. 24, 2005; submission withdrawn pending disposition of Summerlin v. Schriro, 98-99002 (decided Oct. , 2005).