Circuit Snippets

An indicted employee had a right to discover the results of an internal company investigation that the company had turned over to federal investigators (in the hope it would avoid indictment itself), even though the company had reserved its privilege in the materials when giving them to the government. Even if the company had a basis for believing its letters to federal investigators preserved work-product and attorney-client privilege in the documents, that expectation was unreasonable in light of the employee's right to discovery in the criminal case, the D.C. Circuit held. Because the employee had reason to believe the materials contained exculpatory material, the court remanded for the district court to determine which documents were material to the employee's defense. US v. Thompson, No. 08-5203 (D.C. Cir. 4/17/09)

Suppression was required where a federal agent took 21 days to seek a search warrant for a computer hard drive the agent had seized, the Eleventh Circuit held. The fact the agent was at a training course during that time did not make the delay reasonable. US v. Mitchell, No. 08-10791 (11th Cir. 4/22/09)

A six-year sentence for a defendant convicted of trading child pornography was unreasonably severe, even though the defendant faced a guideline range of 10 years, the Third Circuit determined. The 18-year-old defendant had presented expert reports that indicated he was socially immature and not a pedophile. The Court, in reversing the sentence, stressed that district courts must give meaningful consideration to all the 3553(a) factors, and it was not apparent that the district court had actually considered the lengthy and positive reports of the three defense experts. Additionally, the record did not support the district judge's characterization of the defendant as a "pedophile monster." The district court was told to impose a reasonable sentence with particular attention to the "overarching" parsimony principle. US v. Olhovsky, No. 07-1642 (3d Cir. 4/16/09)

In another sentencing case, the en banc Third Circuit refused a government appeal to reverse a sentence of probation imposed on a tax evader. The guidelines recommended a sentence of 12-18 months and a fine of $3,000-$30,000. The sentence imposed was 250 hours of community service, three years of probation, and a fine of $250,000. The appellate court concluded that the requirement that it apply a deferential standard of review necessitated affirmance. It also characterized the variance as "not substantial" and emphasized the defendant's charitable works. The dissenters thought the plumber's tax evasion was particularly egregious and a non-incarceration sentence an abuse of discretion. US v. Tomko, No. 05-4997 (3d Cir. 4/17/09) en banc

The 9th Circuit held that Second Amendment individual right to bear arms does apply to the states, but an ordinance banning guns on county property does not violate that right because it "regulates gun possession in public places that are County property," rather than limiting the right of self-defense in the home. Nordyke v. King, No. 07-15763 (9th Cir. 4/20/09)

The 8th Circuit reversed a defendant's convictions for concealing or shielding illegal aliens from detection. The court agreed with the defendant that the jury instructions correctly stated the elements of the crime, but because the jurors were also supplied with a list of illegal aliens, the jurors could improperly "mix and match" aliens to the elements. The unanimity instruction did not help in this case, and the verdict form made the mess worse by using "harbored or attempted to harbor" to describe "concealing." US v. Pereyra-Gabino, No. 08-2869 (8th Cir. 4/16/09)

Possession of child pornography qualifies as a crime of moral turpitude for purposes of revoking a convicted alien's naturalization. In this case, the alien had concealed the fact of prior conviction for the offense on his application for naturalization. US v. Santacruz, No. 07-55470 (9th Cir. 4/20/09)

A scheme involving submission of fake entries in an Indian casino raffle violated 18 USC 1167(b), which prohibits purloining, stealing, etc. money belonging to an Indian gaming establishment. US v. Moore, No. 08-1177 (7th Cir. 4/21/09)