Splits Noted in the Circuits - 3/3-3/4

I'm on break, so apologies for the typographical errors as I try to catch up on the recent opinions - I'm away from a bluebook and my internet connection does not allow me to check for spelling errors. Further, any comments to let me know this blog is catching on would be most appreciated. Finally, the third case in this list is not a new case, but stems from a denial of rehearing en banc.

• Is False Identification - or Misprision of a Felony - a Crime of Moral Turpitude? Blanco v. Mukasey, 2008 WL 553869, *8, n. 4 (9th Cir. Mar. 3, 2008)

One is not eligible for cancellation of removal if one has committed a crime of moral turpitude, which the Supreme Court has determined includes any crime that involves fraud. In this case, Blanco applied for cancellation of of removal, but was rejected because of, in relevant part, his conviction for false identification to a peace officer. The Ninth Circuit, relying on a prior Pregerson/Reinhardt opinion, holds that, because the California law's definition of false identification does not require the defendant to have materially benefited from that act notwithstanding any impediment to the investigation, the crime does not categorically involve moral turpitude. In so doing, the Ninth deepens a split from the CA 7 and 11.

• Does a Motion for Reduction of Sentence as a Matter of Discretion, Rather than Legality, Toll AEDPA's One Year Limitation Period for Collateral Review? Alexander v. Sec., Dep't of Cor., 2008 WL 553294, *15-*18 (11th Cir. Mar. 3, 2008)

This isn't a pure split; it turns on state law motions to reduce sentences which have slight differences. In pertinent part, however, these motions are based in the same laws -- laws which allow the district court to reduce a sentence imposed not as a matter of legal review, but rather clemency. The Eleventh Circuit holds, in accordance with its own precedent and joining with the CA 3 and 4, that applications for leniency should not toll AEDPA's strict deadlines for the review of the legality of a sentence; only the Tenth Circuit disagrees.

• Is there a Presumption of Prosecutorial Misconduct When the New Charges Involve Distinct Factual Circumstances, United States v. Jenkins, 2008 WL 564980, *7-*11 (9th Cir, Mar. 4, 2008)

As noted in the introduction, this case is not a new panel opinion, but rather comes to this blog from the denial of rehearing en banc. It is also fitting to cover this opinion, as tomorrow's general interest post on Indian Sovereignty is inspired by the author of the panel opinion at issue.

Sharon Ann Jenkins unequivocally admitted to alien smuggling (1) while testifying in her own defense against charges of marijuana smuggling (2); she had also admitted the former crime in previous statements to police. On the first day of the jury's deliberation in a trial for crime (2), the U.S. Attorney sought to indict the defendant for the admitted crime (1). The District Court dismissed the charges as a prophylactic measure to protect Jenkins' Fifth Amendment rights and the panel affirmed. The panel created a rule that if, absent the in court testimony, there was sufficient evidence to charge the second (1) crime at the time of the first (2) trial, a presumption of vindictiveness arises.

Judge O'Scannlain, on behalf of six others, dissents from the denial of rehearing en banc, noting that both the 7th and 11th Circuits have held that when different criminal conduct is charged, there is no presumption of vindictiveness and no burden shifting. Furthermore, the 1st, 8th, and 10th Circuits have held that charges arising out of distinct factual nuclei cannot give rise to any presumption of vindictiveness. Perhaps lightning will strike once again?