The Ninth Circuit Court of Appeals today released an opinion in USA v. SULLIVAN, No. 06-50710, a criminal appeal. The panel consisted of Jerome Farris and Milan D. Smith, Jr., Circuit Judges, and H. Russel Holland, District Judge.

PER CURIAM:
Thomas Sullivan, Thomas Rubin, and Geoffrey Mousseau appeal their convictions and sentences for mail, wire, and bankruptcy fraud, money laundering, and conspiracy to commit fraud and money laundering. The defendants contend that (1) the evidence is insufficient to support the convictions, and (2) the government created a prejudicial variance between the indictment and proof at trial. Mousseau further contends that his trial should have been severed, and that the prosecutor engaged in misconduct. We have jurisdiction over defendants’ timely appeal pursuant to 28 U.S.C. § 1291. We affirm. Background Thomas Rubin and Thomas Sullivan were the Chief Executive Officer and Chief Financial Officer, respectively, of . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. VASQUEZ-RAMOS, No. 06-50553, a criminal appeal. The panel consisted of Alfred T. Goodwin, Mary M. Schroeder, and Richard C. Tallman, Circuit Judges.

PER CURIAM:
Mario Manuel Vasquez-Ramos and Luis Manuel Rodriguez-Martinez (Defendants) were charged by information for possessing feathers and talons of bald and golden eagles and other migratory birds without a permit in violation of the Bald and Golden Eagle Protection Act (BGEPA), 16 U.S.C. §§ 668-668d, and the Migratory Bird Treaty Act (MBTA), 16 U.S.C. §§ 703-712. They moved to dismiss the information claiming that prosecuting their possession of the feathers and talons violated the Religious Freedom Restoration Act (RFRA), 42 U.S.C. §§ 2000bb-1 to 2000bb-4. In . . .

The Ninth Circuit Court of Appeals today released an order in USA v. HORVATH, No. 06-30447, a criminal appeal. The panel consisted of Harry Pregerson, Pamela Ann Rymer, and Susan P. Graber, Circuit Judges.

Judges Pregerson and Graber voted to deny the petition for rehearing en banc, and Judge Rymer voted to grant it. The full court was advised of the petition for rehearing en banc. A judge of the court called for a vote on whether to rehear the matter en banc. The majority of the nonrecused active judges failed to vote in favor of en banc rehearing. The petition for rehearing en banc is DENIED. With this order the Clerk shall also file Judge Graber’s concurrence, Judge Bea’s dissent from denial, and Chief Judge Kozinski’s dissent from denial. 3683 . . .

GRABER, Circuit Judge, with whom Judges WARDLAW, GOULD, and PAEZ, join, concurring in the denial of rehearing en banc:
I write separately to address one critical error made by Judge Bea’s dissent about the role of a probation officer. The dissent’s view of that role is both impractical and inconsistent with the applicable federal rule. When a defendant makes a material statement about his or her personal history, the probation officer must, by law, include that statement in the presentence report (”PSR”). 18 U.S.C. § 3552(a); Fed. R. Crim. P. 32(d)(2). I agree with the dissent that “[t]he probation officer is required to investigate the truth of the defendant’s statements and tell the judge if his investigation reveals facts that undercut the defendant’s representations.” Dissent at 3690. That is, in fact, precisely what the probation officer did in this case. Regrettably, the dissent sees another option. The dissent asserts, quite cryptically, that the probation officer need not include a defendant’s material statement of personal history and may, instead, “report that the defendant relayed information regarding his military service, education level, etc., but that the probation officer has not included such information in. . .

BEA, Circuit Judge, with whom Chief Judge KOZINSKI, and Judges O’SCANNLAIN, KLEINFELD, TALLMAN, BYBEE and CALLAHAN join, dissenting from the denial of rehearing en banc:
Horvath is a slippery customer, in more ways than one. First, he escaped from prison. Captured with a gun in his possession, he pleaded guilty to being a “fugitive with a firearm” in violation of 18 U.S.C. § 922(g). Interviewed by his probation officer, but not under oath, Horvath concocted a tale of his service for his country in the United States Marine Corps. He went so far as to claim he received a Purple Heart for his wound in Panama. To help prove his claim, he showed the probation officer “dog tags” with his name on them. He sold this tale to his probation officer, who included it in his presentence report (”PSR”) to the sentencing judge as a mitigating factor. When the truth came out–Horvath never served a minute in the Marines–he was indicted for making a materially false statement to an officer of the judicial branch, in violation of 18 U.S.C. § 1001(a). He entered a conditional guilty plea and appealed on the ground that he had committed no crime. The majority of the panel agrees with Horvath, finding the probation officer is required by law to present the defendant’s statement to the judge in the PSR verbatim, because the probation officer is nothing more than a mere conduit to the judge. United States v. Horvath, 492 F.3d 1075, 1078-80 (9th Cir. 2007). This is the only justification for the majority’s holding. Thus, the majority holds the statements made by a party to a “probation officer” are exempt from prosecution under 18 U.S.C. § 1001(b), which in fact exempts only statements made by a party or his attorney “to a judge or magistrate.” The majority’s holding that a person cannot be prosecuted under § 1001(a) for false statements made to a probation officer creates tension with the Fourth Circuit, which held that a criminal defendant may be prosecuted under 18 U.S.C. . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. STRINGER, No. 06-30100, a criminal appeal. The panel consisted of Mary M. Schroeder, Barry G. Silverman and Jay S. Bybee, Circuit Judges.

SCHROEDER, Circuit Judge:
I. Introduction The United States appeals from a final order of the district court dismissing criminal indictments against three individual defendants charging counts of criminal securities violations. The dismissal was premised on the district court’s conclusion that the government had engaged in deceitful conduct, in violation of defendants’ due process rights, by simultaneously pursuing civil and criminal investigations of defendants’ alleged falsification of the financial records of their high-tech camera sales company. Foreseeing the possibility of an appeal, the district court held that the indictments must be dismissed, but ruled in the alternative that, should there be a criminal trial, all evidence provided by the individual defendants in response to Securities and Exchange Commission (”SEC”) subpoenas should be suppressed. See United States v. Stringer, 408 F. Supp. 2d 1083 (D. Or. 2006). The court also suppressed evidence relating to the “Swedish Drop Shipment,” an allegedly fraudulent accounting entry. The district court reasoned that the government had improp. . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. SMITH, No. 05-50375, a criminal appeal. The panel consisted of Dorothy W. Nelson and Diarmuid F. O’Scannlain, Circuit Judges, and Robert C. Jones, District Judge.

O’SCANNLAIN, Circuit Judge:
We must primarily decide whether a jury instruction impermissibly relieved the government of its burden to prove beyond a reasonable doubt that the defendant used a “dangerous weapon,” an essential element of the crime. I In August 1999, four inmates at the federal penitentiary in Lompoc, California, were in the recreation cage of the Special Housing Unit: Malik Smith, Charles Wesley Helem, George W. Jeffries, and Milton Johnson. After hearing scuffling noises, prison guards went to the cage, where they saw Smith stabbing Jeffries with a sharpened plastic object while Helem held him from behind. The object snapped into two pieces, but Smith continued to use one of the pieces to stab Jeffries. . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. CRAWFORD, No. 06-30205, a criminal appeal. The panel consisted of Betty B. Fletcher, Susan P. Graber, and M. Margaret McKeown, Circuit Judges.

McKEOWN, Circuit Judge: Antonio Feliciano Crawford raises a number of sentencing issues that have now been answered by the spate of recent . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. ANDERSON, No. 07-50145, a criminal appeal. The panel consisted of John R. Gibson, Diarmuid F. O’Scannlain, and Susan P. Graber, Circuit Judges.

GRABER, Circuit Judge:
Defendant Jimmy Anderson appeals the district court’s imposition of a 3-year term of supervised release after revocation of a 90-day term of supervised release. Defendant argues that the court’s authority to reimpose a term of supervised . . .

The Ninth Circuit Court of Appeals today released an en banc opinion in USA v. CARTY, No. 05-10200, a criminal appeal. The panel consisted of Alex Kozinski, Chief Judge, Mary M. Schroeder, Stephen Reinhardt, Pamela Ann Rymer, Andrew J. Kleinfeld, Sidney R. Thomas, Barry G. Silverman, M. Margaret McKeown, Kim McLane Wardlaw, Ronald M. Gould, Richard A. Paez, Marsha S. Berzon, Richard C. Tallman, Jay S. Bybee, and Carlos T. Bea, Circuit Judges.

RYMER, Circuit Judge:
We ordered rehearing en banc in these cases to clarify our sentencing law in the wake of United States v. Booker, 543 U.S. 220 (2005). Events overtook us, however, when the United States Supreme Court granted certiorari in Claiborne v. United States and Rita v. United States. As the issues were similar to those in our appeals, we deferred submission pending the Court’s decisions. The Court rendered its opinion in Rita on June 21, 2007, holding that a court of appeals may presume that the sentence is reasonable when a district judge’s discretionary decision accords with the sentence the United States Sentencing Commission deems appropriate in the mine-run of cases. 551 U.S. ___, 127 S. Ct. 2456, 2465 (2007). Mario Claiborne’s case was mooted by his death, Claiborne v. United States, 551. . .

SILVERMAN, Circuit Judge, concurring:
In Gall v. United States, 128 S.Ct. 586, 597 (2007), the Supreme Court said, “When conducting [appellate review of the reasonableness of a sentence,] the court will, of course, take into account the extent of any variance from the Guidelines. If the sentence is within the Guidelines range, the appellate court may, but is not required to, apply a presumption of reasonableness. [citing Rita v. United States, 127 S.Ct. 2456].” . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. GIANELLI, No. 07-10233, a criminal appeal. The panel consisted of William C. Canby, Jr., David R. Thompson, and Milan D. Smith, Jr., Circuit Judges.

THOMPSON, Senior Circuit Judge:
In May of 1987, Ronald J. Gianelli (”Gianelli”) pleaded guilty to one count of mail fraud, 18 U.S.C. § 1341 (”mail . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. DAVIS, No. 06-10527, a criminal appeal. The panel consisted of Stephen Reinhardt, John T. Noonan, and Raymond C. Fisher, Circuit Judges.

PER CURIAM:
We issued a limited remand in this case with instructions to the district court to take two specific actions: 1) strike the conviction and the sentence as to count four; and 2) determine, in accordance with United States v. Ameline, 409 F.3d . . .