SS FRAUD: US failed to establish restitution amount resulting from lie as to marital status… Lovell reversed (unpublished). [Read more…]
Passport restriction, judicial usurpation of power
PASSPORT RESTRICTION: Denial of discharged Defendant’s permission to apply for passport a “judicial usurpation of power” warranting mandamus… Haddon reversed.
Keith Faherty requested coram nobis relief from Judge Haddon’s denial of permission to apply for a new or replacement passport. We construe his request as a petition for mandamus. Span (9th Cir. 1996).
Mandamus is justified in “exceptional circumstances amounting to a judicial usurpation of power.” Bauman (9th Cir. 1977). Bauman identified 5 guidelines: (1) no other adequate means to attain relief; (2) petitioner will be damaged or prejudiced in a way not correctable on appeal; (3) order clearly erroneous as a matter of law; (4) order is an oft-repeated error or manifests a persistent disregard of the federal rules; (5) order raises new & important problems or issues of 1st impression. The US conceded at oral argument that the only guideline not met is the 4th.
Haddon’s assumption of jurisdiction over Faherty’s passport application was clearly erroneous. He had completed his sentence and supervised release. No case involving him was pending. By continuing to deny him the opportunity to pursue his right to travel, Haddon engaged in “judicial usurpation of power,” thereby warranting the extraordinary remedy of mandamus. The order is vacated. Haddon is ordered to forthwith and without limitation or restriction grant Faherty permission to apply for a new or replacement passport. The Dept. of State can then determine whether one should be issued.
Hawkins, Rawlinson, Bea.
US v. Faherty, 12-30340, 4/18/14.
Helge Naber, Great Falls, for Faherty; AUSAs Paulette Stewart & J. Bishop Grewell.
Sentencing, bank fraud, same term on remand
SENTENCING: Defendant not entitled to presumption of vindictiveness in same total sentence for bank fraud after 2 counts overturned on appeal and no longer a mandatory 24 months consecutive for aggravated identity theft, since [Read more…]
Sentencing, restitution, investment scheme
SENTENCING: Amount lost by A’s investors improperly included in Defendant’s restitution liability where only connection to A’s fraudulent investment scheme was to introduce A to B who had [Read more…]
SORNA, ex post facto, due process
SORNA: Ex post facto, due process challenges properly rejected, failure-to-register conviction affirmed… superseding opinion… Shanstrom affirmed. [Read more…]
Firearms/Indians, right to counsel
FIREARMS/INDIANS: Although 921(a)(33)(B)(i)(I) includes 6th Amendment minimum in all state and federal proceedings and a more expansive right to counsel in many states, a misdemeanor conviction in tribal court may qualify as predicate to 922(g)(9) [Read more…]