Criminal Appeal

Warning: Summary of Opinion from June (I'm still catching up on a few 9th Circuit Opinions I missed due to vacation.)
Evidence of prior drug smuggling was admissible under FRE 404(b) to rebut duress defense. U.S. v. Verduzco, no. 03-50044 (9th Cir. June 29, 2004).

(1) Evidence of prior drug smuggling was admissible under FRE 404(b) to rebut duress defense. (2) Response to jury question regarding duress defense properly stated the law; (3) No error in exclusion of defense expert on drug culture in Tiajuana. Evidence was excluded for discovery violation, relevance (defendant was experienced in American life), and under Rule 403(b).

Panel: Myron H. Bright (8th Cir.), O’Scannlain, and McKeown

In the light of a 2001 amendment to USSG, D.Ct. erred in including interest and finance charges in calculation of actual loss for sentencing purposes.

Holdings: (1) No abuse of discretion in admission of bankruptcy petition as a prior statement to rebut defendant's denial of personal credit problems. (The petition was not admitted as evidence of a prior act.)(2) Although Judge's questioning of defendant was "inappropriately extensive and suggestive of the court’s own conclusion about Goodman’s credibility, it does not warrant reversal for plain error." (3) the 2001 addition of application note 2(D) (now 3(D)(i))) to § 2B1.1, specifying that interest and finance charges are not included in calculation of loss was clarifying and applies to defendants who were sentenced under 1995 version of guidelines. (4) No abuse of discretion in including contractual interest and finance charges in restitution order.

Note 1: the opinion contains a thorough examination of whether the amendment was clarifying. The court considered three factors: whether the amendment was listed among those to be applied retroactively (it wasn't, but it the amendment (no. 617) had so many components and given that some would be clarifying and some would not, it's not surprising it wasn't included in the list of retroactive amendments); the statement of the commision as to whether it was clarifying (they didn't so state, but this was not dispositive); and the fact that the commission was resolving a circuit split (this was dispositve and led the court to hold that the amendment was clarifying.)

Note 2: The court, in remanding for resentencing, explicitly required "resentencing consistent with this opinion and consistent with Blakely v. Washington, 124 S. Ct. 2531 (2004)." U.S. v. Morgan, no. 02-50603.

Panel: D.W. Nelson, John R. Gibson (8th Cir.), Graber (author).

Apprendi Does Not Apply to Relevant Conduct Drug Quantity Findings Made to Establish Base Offense Level; Fugitive Disentitlement Doctrine Does Not Require Dismissal of Government's Sentencing Appeal After Goverment Deports Appellant
U.S. v. Plancarte-Alvarez, nos. 03-50062 and 03-50121 (9th Cir. May 11, 2004)

Holdings: (1) in prosecution for importing and possessing with intent to distribute marijuana, district court did not abuse its discretion in admitting prior act (9 days prior to charged offense) of marijuana smuggling; (2) deportation of defendant did not moot government's appeal of the sentence; (3) district court erred in holding that Apprendi barred inclusion of weight of marijuana from prior uncharged shipment in determining the base offense level.

Panel: James R. Browning, David R. Thompson (author), and Kim McLane Wardlaw,

Subsequent Acts Admissible as Propensity Evidence Under FRE 413.
Case: U.S. v. Sioux, no. 03-30310
Proceeding: Direct criminal appeal following jury trial.

Holding: Rule 413 of the Federal Rule of Evidence, which allows use of "evidence of the defendant’s commission of another offense or offenses of sexual assault" as propensity evidence in a criminal sexual misconduct case, permits introduction of evidence of subsequent acts, not just prior acts.

Authoring Judge: Diarmuid F. O’Scannlain.

Note: The opinion makes no mention of a due process challenge to propensity evidence, although such an argument was made in the district court. Such challenges are not meeting with success on California courts, but I though the Ninth Circuit was a little friendlier on this question.