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Steven Gorham                                                         Telephone (503) 391-1420
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                       September 9, 2004 – September 22, 2004

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U.S. v. Staves
No. 03-50300 (09/09/04)
Before Circuit Judges B. Fletcher, Hansen and Rawlinson


Opinion (Fletcher): Fredrick Staves (Staves) and Ernest Wayne (Wayne) conditionally pled guilty to several federal
drug trafficking offenses; they appealed the district court's denial to suppress evidence obtained through
wiretapping. Staves and Wayne argued that the application for the wiretap did not sufficiently demonstrate the
necessity for the wiretap. Investigating Staves' and Wayne's cases, the police obtained evidence from numerous
sources indicating that Staves and Wayne were involved in drug trafficking; despite their best efforts, however, the
police were unable to determine the extent of the conspiracy and therefore applied for a wiretap. The Ninth Circuit
held that, because of the extensive investigation leading to the request for a wiretap, the district court did not err in
concluding that the wiretap was necessary. Further, the district court properly denied Staves and Wayne a Franks
hearing because they did not identify any false statement in the wiretap affidavit that would weaken the findings of
probable cause and necessity. AFFIRMED. [Summarized by Margaret Stearns]

U.S. v. Boulware
No. 02-10287 (09/14/04)
Before Circuit Judges Tashima, Thomas, and Silverman


Opinion (Tashima): Michael H. Boulware started a company in 1979, which was renamed Hawaiian Isles
Enterprises (HIE) in 1985, and reported gross receipts over $85 million in 1992. Boulware asked his wife for a
divorce in 1987, but she threatened to liquidate HIE. Boulware then started diverting funds into a trust managed by
his girlfriend, Jin Sook Lee, in order to buy out his wife's interest in the company. When enough money
accumulated in 1994-approx. $5 million-Lee filed a complaint in state court alleging that Boulware had gifted the
funds to her. The trial court found that the money belonged to HIE. Parallel to the majority of these events, the IRS
was conducting an investigation of Boulware and indicted him on five counts of filing false tax returns, four counts
of tax evasion, and one court of conspiracy to make false statements to a federally-insured financial institution.
Boulware was convicted of the same and argued that the district court abused its discretion by excluding evidence of
the state-court judgment. The Ninth Circuit concluded that the district court erred in excluding the evidence. The
Ninth Circuit held that the state judgment did not have preclusive effect as to the ownership of the monies; however,
the evidence was relevant, was usable for a non-hearsay purpose, and was admissible under Rule 803(15). The
Ninth Circuit concluded that the error was not harmless because it was crucial to Boulware's defense and granted
Boulware a new trial for the tax evasion and filing false tax return convictions. AFFIRMED IN PART;
REVERSED IN PART; AND REMANDED. Dissent by Judge Silverman. [Summarized by Amber Ames]

U.S. v. Hugs
No. 02-30390 (09/13/04)
Before Circuit Judges Browning, Alarcon, and Clifton


Opinion (Alarcon): Hugs was convicted in district court of involuntary manslaughter. On appeal to the Ninth
Circuit, Hugs argued that the jury instructions were improper because they actually altered the charges against him.
The Ninth Circuit affirmed the district court. In so holding, the Ninth Circuit stated that the standard for a variance
to an indictment that is not objected to is one of plain error. Using this standard, the Court found even if the error of
the instruction was plain, Hugs was given fair notice of the evidence the government planned to produce at trial.
This notice prevented any substantial violation of Hugs's rights. AFFIRMED. [Summarized by Derek Conom]

U.S. v. Manjit Kaur
No. 03-30306 (09/10/04)
Before Circuit Judges Pregerson, Ferguson, and Callahan


Opinion (Pregerson): Manjit Kaur, a convenience store owner, sold large quantities of pseudoephedrine to an
undercover Drug Enforcement Agency (DEA) agent. Pseudoephedrine is a chemical substance found in common
cold medications, but which can be used to manufacture illegal drugs. Ms. Kaur was charged with distributing the
pseudoephedrine, knowing or having reasonable cause to believe that the pseudoephedrine would be used in the
manufacturing of methamphetamine. Following her arrest, the DEA found large stocks of pseudoephedrine in the
store. At the trial, both the prosecution and the defense offered a jury instruction to explain the phrase "reasonable
cause to believe." The trial judge rejected both and formulated his own instruction. The jury found Kaur guilty on
all counts. Kaur appealed the result challenging the jury instruction given by the district judge in relation to
"reasonable cause to believe." The Ninth Circuit found the district courts instruction simply elaborated upon the
statutory language and thus was not an abuse of discretion. AFFIRMED. [Summarized by Bryan Maroney]

U.S. v. Rojas-Flores
No. 03-50252 (09/13/04)
Before Circuit Judges T. Nelson, Tashima, and Fisher


Opinion (Tashima): Rogelio Rojas-Flores (Rojas) is an inmate who was found with three sharpened steel objects
and convicted for possession of contraband in prison in violation of 18 U.S.C. Sec. 1791(a)(2), which specifically
prohibited weapons and objects designed or intended to be used as a weapon. At trial, Rojas argued that the term
"weapon" meant something originally manufactured as a weapon, hence the shanks were not weapons.
Furthermore, he argued that if the word weapon included shanks, the designated or intended language was
superfluous. The district court rejected Rojas's argument and concluded that he was not eligible for a two-level
sentence reduction, because he had contested an element of the offense. The Ninth Circuit held that Rojas's
argument only raised a question of law, not fact, so he was entitled to the sentence reduction. Regarding Rojas's
argument about the shanks, the Ninth Circuit noted that at some point, an object designated or intended to be used as
a weapon, in fact, becomes a weapon. Therefore, the statute was meant to encompass both stages and the designated
or intended language was not superfluous. CONVICTION AFFIRMED; SENTENCE VACATED; AND
REMANDED. [Summarized by Amber Ames]

U.S. v. Quintana-Quintana
No. 03-50254 (09/13/04)
Before Circuit Judges D. Nelson, Gibson, and Graber.


Opinion (En Banc): Oscar Quintana-Quintana (Quintana) was convicted of being a deported alien found in the
United States and was given an enhanced sentence due to Quintana's prior conviction for assault with a deadly
weapon. Quintana argued that his sentence should be vacated per Blakeley v. Washington, because the fact of his
prior conviction was not proved to a jury beyond a reasonable doubt. The Ninth Circuit concluded that the Supreme
Court explicitly preserved its holding in Apprendi v. New Jersey, which exempted the fact of a prior conviction.
Hence, the sentence increase was not a separate offense, but a penalty for recidivist behavior. The members of the
panel that previously affirmed the sentence voted unanimously to deny the petition for rehearing. DENIED.
[Summarized by Amber Ames]

Salgado v. Garcia
No. 02-55557 (09/13/04)
Before Circuit Judges Farris, Kozinski and Silverman


Opinion (Farris): The district court dismissed Salgado's petition for writ of habeas corpus and then denied his
certificate of appealability (COA). The Ninth Circuit had also previously denied Salgado's COA. Salgado contested
these rulings on the ground that a two-judge panel could not properly deny a COA. The Ninth Circuit held that,
because case law has established that a two-judge panel may hear such cases and the statutory language was clear in
this regard, the two-judge panel had jurisdiction over Salgado's certificate of appealability. Moreover, the Ninth
Circuit noted even though some circuits use three-judge panels in deciding COAs, the circuits were free to choose
between using one-, two- or three-judge panels. AFFIRMED. [Summarized by Margaret Stearns]

Jones v. City of Santa Monica
No. 03-55211 (09/10/04)
Before Circuit Judges Canby, Hansen, and Rawlinson


Opinion (Canby): Jones, arrested without a warrant for grand theft and fraudulent use of a credit card, contended
that the City of Santa Monica's (City) procedure for determining probable cause after her arrest violated the Fourth
and Fourteenth Amendment because she was not afforded the opportunity to appear at the determination and
because the application for probable cause was made on a pre-printed form. The Magistrate making the probable
cause determination found the entire package of information substantiated a finding of probable cause. Later, with
insufficient grounds for a charge, Jones was released. Jones filed a complaint in district court against the City and
numerous police officers and jailers involved in her arrest. The district court granted summary judgment as a matter
of law in favor of the City. The Ninth Circuit found the procedures used by the City to determine post-arrest
probable cause was not unconstitutional under the Fourth and Fourteenth amendments. For lack of adequate
transcripts, the Ninth Circuit dismissed Jones's claim that here individual determination hearing did not meet
constitutional standards. AFFIRMED IN PART; DISMISSED IN PART. [Summarized by Bryan Maroney]

John Doe v. U.S.
No. 04-10097 (09/02/04)
Before Circuit Judges Hug, Canby, and Tallman


Opinion (Canby): In the course of the government's investigation into antitrust violations in the Dynamic Random
Access Memory (DRAM) industry, a grand jury issued a subpoena duces tecum to all DRAM manufacturers asking
for, among other things, the names of all current and former employees. A cooperating witness identified John Doe
as a former employee who was responsible for pricing. FBI agents interviewed Doe and served him with a
subpoena duces tecum requiring him to bring all documents relating to the production or sale of DRAM components
when he came to testify. Doe claimed that all company records were left with his former employer. Subsequently,
FBI agents learned that Doe possessed over 4,500 documents. Doe refused to testify, refused to produce any
documents, moved to quash the subpoena and claimed a Fifth Amendment privilege against self-incrimination. The
district court denied the motion, finding that the existence of Doe's documents was a forgone conclusion, thus the act
of producing the documents was non-testimonial. Doe still refused to hand over any documents and was held in
contempt, which he appealed. The Ninth Circuit found that the FBI had insufficient knowledge of the documents at
the time of the subpoena-so they were not a forgone conclusion. Thus, the Ninth Circuit held that the district court
improperly refused to review the documents to determine if the act of producing them would have incriminating
aspects. REVERSED AND REMANDED. [Summarized by Amber Ames]

U.S. v. Gourde
No. 03-30262 (09/05/04)
Before Circuit Judges Brunetti, McKeown, and Gould


Opinion (Brunetti): In a child pornography investigation, FBI agents confiscated information regarding Gourde in a
search of Field's home, the owner of a child pornography website. Pursuant to a search warrant, officers searched
Gourde's home and confiscated his personal computer, finding hundreds of images of child pornography and child
erotica. Gourde filed a motion to suppress the seized images. The district court denied the motion. Gourde
subsequently entered a conditional guilty plea to "one count of possession of visual depictions of minors engaged in
sexually explicit conduct." Gourde retained the right to appeal the district court's denial of his motion to suppress
the seized computer images. Gourde appealed. The Ninth Circuit held that the affidavit supporting the search
warrant of Gourde's home and personal computer did not sufficiently establish a link between Gourde's "attenuated
connection to child pornography and his actually possessing it." The fact that Gourde might possess child
pornography because he subscribed to a website containing child pornography was not enough to justify a search
warrant of Gourde's home and personal computer. Therefore, the Ninth Circuit held that there was insufficient
probable cause for a search warrant of Gourde's home and personal computer. The Ninth Circuit reversed the
district court's denial of Gourde's motion to suppress the seized computer images. Additionally, the Ninth Circuit
held that the officers "acted objectively unreasonably in seeking and relying on the deficient warrant." REVERSED.
Concurring opinion by Gould. [Summarized by Crystal English]

State v. George
Case No.: S50135


HOLDING: (Opinion by Gillette, J.; Kistler, J., dissenting) When a trial court fails to give the jury instruction
required by ORS 161.313 concerning the consequences of a "guilty but insane" verdict, it denies the defendant a
benefit that the legislature intended.

George was convicted of aggravated murder and was sentenced to life imprisonment without the possibility of
parole. George appealed the trial court's refusal to give an instruction about the consequences of a verdict of guilty
except for insanity. The state argued that George could not be heard to complain about the trial court's failure to
give an instruction because George objected to the uniform instruction but failed to offer one that was a correct
statement of the law. The Court found that ORS 161.313 unequivocally places the responsibility for giving the
required instruction on the trial court, without regard to whether the defendant requests such an instruction. The
Court held that George's objections at trial were sufficient to preserve his present claim that the trial court erred in
failing to give an instruction that fulfilled the statutory directive of ORS 161.313. The decision of the Court of
Appeals is reversed. The judgment of the circuit court is reversed and remanded. Kistler, J., dissented arguing that
George made a conscious decision not to present that issue to the Court of Appeals, and therefore the court should
not reach it. [Summarized by Christopher D. Bevans.]

State v. Paragon
Case No.: A115738


HOLDING: (Opinion by Armstrong, J.) Evidence in support of an inference of a possibility of danger to a minor
child's health and welfare is not sufficient to find beyond a reasonable that doubt circumstances were likely to

endanger the minor.

Rick and Tammy Lynn Paragon were convicted of two counts of criminal neglect for leaving their seven year-old
daughter at home in the care of their nine year-old son, alone, for a 45 minute period. The Paragon's appealed on the
basis that their motion for a judgment acquittal was denied, arguing the evidence was not sufficient to established
guilt of endangering their seven-year-old's health and welfare beyond a reasonable doubt. The Court of Appeals
held the evidence supporting an inference of a possibility of danger to the minor child's health and welfare was not
sufficient to find beyond a reasonable doubt that circumstances were likely to endanger the minor. Furthermore,
there were circumstances giving rise to a substantial risk of such harm to the child. Conviction on Count 2 reversed;
otherwise affirmed. [Summarized by David W. Duncan.]

State v. Torres
Case No.: A120071


HOLDING: (Opinion by Landau, P. J) The trial court errs when it imposes a "firearm" minimum sentence, absent a
finding that the defendant personally used or threatened to use a firearm in the commission of the offenses.

Torres appealed his conviction of robbery in the first degree, robbery in the second degree, and kidnapping in the
first degree. The trial court imposed a 60 month "firearm" minimum on each of the two robbery convictions. Torres
argued that the trial court erred in denying his motion for acquittal on the kidnapping charge, in ordering his
sentence on that charge to be served consecutively with the first degree robbery sentence, and with imposing the
firearm minimums on his robbery conviction. The state contested the first two assignments of error, but conceded
that the record did not support the firearm minimum sentences. The Court of Appeals rejected the first two
assignments of error and accepted the state's concession on the firearm minimums. Remanded for modification of
judgment by deletion of ORS 161.610 sentences; otherwise affirmed. [Summarized by Philip Andrews.]

State v. Frey
Case No.: A118253


HOLDING: (Opinion by Landau, P.J.) In a secure police station, a request for and retention of identification for
non-investigative purposes does not exceed the boundaries of what a reasonable person ordinarily would expect and
it is not a constitutionally significant interference of freedom of movement under the totality of these circumstances.

Frey appealed a judgment of conviction for failure to report as a sex offender, ORS 181.599, assigning error to the
denial of his motion to suppress evidence that he contends was obtained as the result of an illegal seizure. Frey
contends that an illegal seizure took place when a police officer asked to see his identification upon finding Frey
inside an area of the police station that requires authorization. The Court found that intentionally and significantly
restricting a defendant's liberty or freedom of movement is a fact-specific determination involving an evaluation of
the totality of the circumstances of a particular case. The Court found that the circumstances in this case did not rise
to that level. Affirmed. [Summarized by Christopher D. Bevans.]

State v. Jon Michael Haney
Case No.: A116614


HOLDING: (Opinion by Armstrong, J.) A statute that does not limit officer discretion, even with a reporting
requirement, does not justify a warrantless search of an automobile in an accident as an administrative search.

Jon Michael Haney appeals a misdemeanor conviction for driving under the influence of intoxicants after evidence
was introduced at trial that was obtained through a warrantless search of his car after it was involved in an
automobile accident. The Court of Appeals held the trial court erred in upholding the search of Haney's car without
a warrant as a permissible administrative search. A statute requiring police officers to file reports after an injury
automobile accident, and thus authorizing administrative searches, was held to be insufficient because the state
could not show any policy limits of the discretion of the officer conducting the search. Reversed and remanded.
[Summarized by David W. Duncan.]

State v. Mckenzie
Case No.: A118650


Holding: (Opinion by Armstrong, J.) The Nevada Constitution, like Oregon's, requires that an uncounseled guilty
plea be preceded by a knowing waiver of counsel that is based on awareness by the defendant of the risks of self-

The State appealed a lower court order suppressing evidence of a prior Nevada DUII. The lower court found the
Nevada conviction failed to meet the Oregon Constitutional standard for waiver of counsel. The State argued the
proper standard for waiver of counsel was that of Nevada or a federal constitutional standard. The Court of Appeals
did not decide which standard is appropriate, instead finding the Nevada and Oregon constitutional standards were
in fact the same. Both require a valid waiver to be made knowing and voluntary, with a showing the defendant was
aware of the disadvantages and risks in self-representation. Affirmed. [Summary by David Freeman.]

State v. Sawatzky
Case No.: A116857


HOLDING: (Opinion by Haselton, J.) Guideline departure sentences, which require judicial findings that are not
based on facts found by a jury, violate the Sixth Amendment of the United States Constitution.

Ms. Sawatzky was charged with twenty counts of theft and forgery. Ms. Sawatzky pleaded guilty to all charges. The
court imposed upward departure sentences for Counts 9 through 18, contributing to a total sentence of 88 months.
Ms. Sawatzky appealed. The Court of Appeals held that statutory maximum sentences under Oregon sentencing
guidelines were the presumptive sentences based on an offender's criminal history and crime seriousness score.
Increased penalties beyond the statutory maximum for reasons other than prior convictions had to be determined by
a jury beyond a reasonable doubt. Since the guideline departure sentences for Ms. Sawatzky were not based on facts
found by a jury, the departure sentences violated the Sixth Amendment of the United States Constitution. Sentences
vacated; cases remanded for resentencing; otherwise affirmed. [Summarized by Trevor Johnson.]


Prosecutors take on attorney-client privilege HARTFORD, Connecticut(AP) -- Over the past 15 years, federal
prosecutors in Connecticut have indicted four mayors, taken down the state treasurer, put palm-greasing bankers
behind bars and won a guilty plea from a top aide to the governor. But in the past four months, their corruption
probe of former Gov. John G. Rowland's administration has taken a particularly aggressive turn. In the past few
months, prosecutors have subpoenaed records from two defense attorneys, demanded the testimony of Rowland's
former legal adviser and seized materials from a private investigator.

While some Connecticut attorneys have decried such attempts to pierce the veil of attorney-client confidentiality,
experts say more and more prosecutors around the country are employing such tactics in trying to build difficult
cases. "The tactics in Connecticut are not unusual any more," said Joseph DiGenova, a former U.S. attorney for the

District of Columbia, now in private practice. "There is a national assault on attorneys all over the country."
DiGenova himself was subpoenaed by prosecutors investigating alleged corruption involving one of his clients in
What prosecutors seek
Conversations between attorneys and their clients are generally considered private, but courts have refined the
boundaries between what is privileged and what is fair game. Prosecutors subpoena lawyers for a variety of
information, including the source of their payments and details about communication between their clients and other
people. In Chicago, federal prosecutors subpoenaed former Gov. George Ryan's top legal adviser to testify against
him before a grand jury. An appeals court ruled in 2002 that any privacy concerns were trumped by the grand jury's

Prosecutors in Connecticut took the same tack recently, subpoenaing Rowland's former counsel, Anne George.
Rowland's attorneys beat back that subpoena, winning a potentially precedent-setting case before the 2nd U.S.
Circuit Court of Appeals. Prosecutors have also subpoenaed records from the attorney for Peter Ellef, Rowland's
former chief of staff and a target in the case. In addition, they demanded records from Ellef's son's attorney. A
federal judge heard closed arguments over the legality of the subpoenas but issued a gag order on the matter.

"The attorney subpoenas clearly show a new chapter, not only in corruption cases, but in federal criminal cases
generally," said Ellef's attorney, Hugh Keefe. Weeks ago, the FBI seized documents from a private investigator
working for a state contractor, an attorney said. The contractor, William Tomasso, had hired the detective to
investigate the character of witnesses against him, said his attorney, Jack Fornaciari. Fornaciari called the seizure

"They haven't repealed the Constitution in Connecticut," he said. But U.S. Attorney Kevin O'Connor of Connecticut
said there are checks and balances that prevent the misuse of subpoenas and inappropriate seizures. "Just about
every invasive technique that you mentioned has to be approved in Washington," O'Connor said. "It's not like the
U.S. attorney's office in Connecticut is off on some detour."
Driving a wedge between attorney and client?
Rowland resigned July 1 amid a federal investigation and threats of impeachment. Investigators want to know
whether he steered state contracts to friends in exchange for free work at his summer home, vacations and other

Defense attorneys began seeing an increase in subpoenas in the early 1990s, said Gerald Lefcourt, past president of
the National Association of Criminal Defense Attorneys. After lawyers complained to the Justice Department, he
said, the subpoenas stopped coming so frequently.

Lately, attorneys say such subpoenas are back in favor. "It's happening with alarming frequency from one end of the
country to the other," said Texas attorney Gerry Goldstein, who also served as president of the NACDA. "One has to
believe there is some concerted effort."

By forcing a lawyer to turn over information, prosecutors can drive a wedge between attorney and client. Some
attorneys say prosecutors use such subpoenas to force top defense attorneys off the big cases. O'Connor said that is
not the case in Connecticut. He said there has been no policy change locally or nationally that encourages such
techniques. If more attorneys are being subpoenaed, he said, it is because the cases warrant it.

And he noted that attorneys can challenge decisions they feel crossed the line. "There are remedies. They can move
to suppress," O'Connor said. "If it is the wrong thing, presumably a court will say so."



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