Sorry for the delay, but I'm on vacation.
Anyway, two cases yesterday.
In United States v. Walter-Eze, --- F.3d ---, No. 15-50315 (9th Cir. 20017), the Court considered a variety of issues in a health care fraud prosecution.
The bulk of the opinion focused on the defendant's claim that a conflict of
interest created by the district court -- when it conditioned an
adjournment on counsel’s paying jury costs and witness fees -- violated her Sixth Amendment right to counsel. The Court rejected the claim because the defendant could not show prejudice. The Court also disagreed that prejudice should be presumed because of an actual conflict of interest. (Concurring, Judge Nguyen explains why the majority's analysis on presuming prejudice was flawed).
The Court also held that the district court did not abuse its discretion in denying a continuance on the day of trial.
Additionally, the Court found no error in the district court's decision to give a deliberate ignorance instruction after closing arguments completed. The Court essentially concluded that the defendants' closing argument made the instruction appropriate.
Finally, the Court rejected the defendant's arguments on loss calculation, leadership role, and restitution.
In United States v. Robinson, --- F.3d ---, No. 16-30096 (9th Cir. 2017), the Court vacated the defendant's sentence, holding that the Washington crime of second-degree
assault, Wash. Rev. Code § 9A.36.021, is not a “crime of
violence” within the meaning of U.S.S.G. § 2K2.1.
The parties agreed the statute was overbroad, and the Court rejected the government's argument that it was divisible under Descamps and Mathis.
Of note, the Court also determined its prior precedent in United States v.
Lawrence, 627 F.3d 1281 (9th Cir. 2010) (considering the same statute) was effectively overruled by Descamps and Mathis.
