Sunday, May 25, 2008

Ineffective Counsel: Ninth Circuit Reverses 23 Year Old Case/Ineffective Counsel: Corell v. Ryan, 539 F.3d 938 (9th Cir. 2008)

Correll v. Ryan [Warden] 539 F.3d 938 (9th Cir. 2008) Ineffective Assistance of Counsel Congress, understandably frustrated with U.S. circuit courts of appeal in general, and the Ninth Circuit in particular, enacted the Antiterrorism and Effective Death Penalty Act (AEDPA) in 1996 to restrict federal habeas corpus review of state court convictions. No case more dramatically illustrates the overwhelming need for this statute than the Ninth Circuit decision in Correll v. Ryan (Warden), decided May 15, 2008. Because this case is twenty three years old, the Ninth Circuit escaped the restrictions of AEDPA and performed a de novo review under the old more liberal law. The facts are horrendous but the reader would never know about the vicious murder of four victims by reading the author of the majority opinion, writing perfunctorily and without any description of the facts, that Correll was convicted of three counts of first degree murder, attempted first degree murder, four counts of kidnapping, armed robbery and first degree burglary. The dissent does explain: Correl and a co suspect entered one of the victims house demanding money. Correll secured the victim and his girl friend with duct tape, and, when two other friends of the victim arrived, he taped them also. Correll and his companion raided the house for money and valuables. They forced three of the victims at gunpoint into a car and drove to a deserted area. Compelling them all to lie on the ground, Correl shot one in the head, who miraculously survived, and helped his companion execute the other two victims. Police found the other victim in the house dead by strangulation. The sole defense at the trial was misidentification of Correll. The jury convicted Correl, and, during the penalty phase, the prosecution presented five aggravating factors which, under Arizona law, are conditions for imposing the death penalty. Counsel for Correll presented substantial mitigating evidence, attempting to paint his client as less culpable than the other killer. Counsel argued for mitigation on grounds Correll was under the influence of drugs and had a troubled family history but the judge sentenced Correl to death. The Arizona Supreme Court affirmed the conviction on appeal. Correll filed post conviction proceedings in the state court alleging his counsel had been ineffective in representing him in the penalty phase by failing to present psychological evidence. After the court held an evidentiary hearing, the judge denied the petition, commenting . . .the Court specifically recalls the trial work of defense counsel was precise, careful and competent, and manifested strategic and tactical judgment of the same high quality. Turning to the federal court, Correll filed a petition for habeas corpus. The district court denied the petition but on appeal the Ninth Circuit ordered an evidentiary hearing on grounds Correll had not received a full evidentiary hearing in state court. On remand, the district court held a nine day evidentiary hearing and concluded counsel had been deficient in some areas but insufficient to prejudice the petitioner. The court made specific findings of fact in a 109 page opinion. On appeal from this decision, the Ninth Circuit majority (having rejected the Arizona Supreme Court decision, the post conviction hearing in state court and the federal district court judge), found counsel for Correll ineffective. Their decision drew six angry dissents. According to the majority, counsel did not present mitigating evidence of brain damage incurred when Correll was seven years old. The psychiatrist testified Correll suffered no brain injury and was a fully functioning adult. The majority criticized counsels failure to present psychological evidence although this strategy would have opened the door for the prosecution to offer damaging evidence of Corrells violent history. Correll had a previous conviction of armed robbery, had been confined in a mental hospital for almost his entire adult life where he had repeatedly escaped, raped an attendant and engaged in disorderly conduct. He had never worked, assaulted his sister, and spent his time injecting narcotics. This evidence did not suggest mitigation as a sensible strategy. The alternative to escaping the death penalty is evidence of lesser culpability or other factors to cast doubt on the verdict. This strategy requires counsel to impute more responsibility on a co suspect, offer evidence of intoxication at the time of the crime, or present other witnesses who would offer character evidence. Casting doubt on the conviction, as distinct from attempts to dissuade the trier of fact imposing the death penalty for reasons of mental instability, age, lack of premeditation, is regarded as an effective alternative according to studies on this subject. But Correll had argued he was not responsible for the crimes, i.e., he was innocent. Forced by the jury verdict to disregard this strategy, counsel confronted a mountain of rebuttal evidence in the file of the prosecution if he introduced mitigating evidence. Confronted with devastating rebuttal evidence if he offered evidence of mitigation, and possessed of no psychiatric evidence from testimony by doctors, counsel lacked the resources to avoid the death penalty. More disturbing is the majority opinion disregarding the facts. According to the majority, counsel failed to explain mitigation evidence of drug use, brain damage, family history or medical record. In fact, there is no evidence Correll was under the influence of drugs at the time of the murders, no evidence of brain damage and the court knew of attempts by his family to assist him in his conduct. The pre sentence report also provided additional information to the trial judge. The majority also contend counsel did not seek testimony from a chaplain at prison. As the dissent points out, the chaplain refused to testify. Nor does the court mention that counsel interviewed thirty to forty witnesses, none of whom would testify favorably. There is no expert testimony of mental imbalance. This distortion of the facts identified by the dissents is inexcusable, but not the first time the Ninth Circuit has reweighed or ignored the evidence. Unless reversed by the Supreme Court, the Ninth Circuit regularly stifles imposition of the death penalty and Corell is a prime example of an appellate court reweighing the evidence and dismissing state and district court findings. Appellate courts were mandated to defer to factual finding supported by the evidence prior to enactment of AEDPA. In 109 pages the district court outlined its findings, essentially ignored by the Ninth Circuit. The Ninth Circuit has embraced the Supreme Court decision in Strickland v. Washington, 466 U.S. 668 (1984) enabling an appellate court to conclude counsel was ineffective during trial or sentencing in capital cases. The majority in Correll, finding reasons not to impose the death penalty on grounds counsel was ineffective, creates a insurmountable dilemma. If defense counsel offers mitigation evidence, the prosecution introduces Corrells previous conviction for armed robbery, confinement and escape in a mental facility, and molestation of his sister. If counsel does not submit mitigation evidence, the Ninth Circuit criticizes him for not doing so. The Strickland test requires reversal on appeal only if counsel is ineffective to a point the defendant was prejudiced. This test is quintessentially fact specific and a court can always cite Strickland as precedent. But the court of appeal did not hear the evidence, was not at the trial or sentencing, did not participate in the two evidentiary hearings and misstates the evidence. From a cold record the majority undermines the death penalty. The Supreme Court has cautioned Courts of Appeal from second guessing trial counsel and their sentencing strategy. The Ninth Circuit majority in Correll has done just that in case now twenty three years old. The majority opinion duplicates what the dissenting judges said in Gentry v. Roe, 320 F.3d 891 (9th Cir. 2002) in 2002: This case is part of a developing body of circuit law substituting our judgment on defense tactics and presentation for the judgment of defense counsel and state courts. More often this occurs in death penalty cases, but the trend is seeping beyond them to more routine cases . . . The last thing criminal defendants and the public need is a Ninth Circuit form book of approved argument and strategies, yet that what were giving them. Were telling them in great detail how to investigate their cases and forcing them down rabbit tracks that divert their time from better applications, that they have to produce psychiatric evidence though often it's a bad idea, . . . Now they apparently have to make, and refrain from making arguments . . . regardless of what they think will most likely persuade the jury to consider seriously whether there is a reasonable doubt. The Supreme Court reversed the Ninth Circuit (and the majority opinion in Roe v. Gentry) in Yarborough v. Gentry, 320 U.S. 1 (2003).

Thursday, May 22, 2008

First Amendment: Latin Cross Violates Establishment Clause: Buono v. Kempthorn, 527 F.3d 758 (9th Cir. 2008)

Buono v. Kempthorne (Secretary of the Interior) 527 F.3d 758 (9th Cir. 2008) Cert Granted. Seventy five years ago, the Veterans of Foreign Wars erected atop Sunrise Rock in the Mojave National Preserve a memorial to veterans who died in World War I. The Memorial took the form of a cross, nearby stood a wooden sign stating, The Cross, Erected in Memory of the Dead of All Wars and Erected 1934 by Members of Veterans of Foreign Wars. The sign has since disappeared, and the cross has been replaced several times, most recently in 1998. Each incarnation of the memorial was created and installed by private citizens; there is no indication in the record that citizens ever received permission from the National Park Service; Buono v. Kempthorne; OScannlain, dissenting from denial of hearing en banc; 2008 WL 2939257 (9th Cir.) The facts of Buono are essentially undisputed, although their interpretation is not, as evidenced by litigation between the parties spanning six years. When the Ninth Circuit issued its original injunction in 2004 commanding removal of the cross, Congress replied by transferring the property to a private source, thereby escaping any Constitutional issue. According to the Ninth Circuit majority in Buono v. Kempthorne, decided in May, 2008, this Congressional act amounted to a sham transaction. The court held the Act violated the First Amendment Establishment Clause and affirmed its original injunction. The memorial has stood for seventy five years to honor those who died in the service of their country. These men and women who traveled abroad and left their friends and family to fight on foreign soil are entitled to a symbol of their commitment. No one has been compelled to join any religious group, no one terrorized, no harm to anyone. In a disservice to the dead and simultaneously interring American history, the Ninth Circuit deserves Congressional and national repudiation previously voiced when the court precluded the right of school children to include under God in the Pledge of Allegiance. The quotation above from the dissenting opinion in Buono (joined by four other judges) signals determination by a majority of the Ninth Circuit judges to eradicate religion from the public square no matter how tenuous the evidence and regardless of the public weal. As noted by the dissenting judges, the memorial has existed without a single complaint until 2002 when the ACLU elected to intervene on grounds the Latin Cross violated the Establishment Clause of the First Amendment. An unadorned cross in the middle of the desert hardly "establishes" any religion and its compulsory removal on gounds it "offends" somone is inconceivable. The First Amendment has undergone significant revision in the last quarter century as federal courts in general, and the Supreme Court in particular, have attempted to reconcile the religious origins of the United States in 1787 with the significant public interest in religion throughout American history. The original purpose of the Establishment Clause prohibited a federally supported national church experienced by colonists under Henry VIII and Elizabeth. English history is replete with evidence of tormenting, terrorizing and killing Catholics during the reign of these two monarchs, and our memory of the Puritans who sought escape from royal tyranny is implanted in the roots of American history. In Buono the Ninth Circuit majority again continued their attempt to extirpate any trace of religion in the public square (or in this case, the desert) by compelling removal of a poignant memorial of men and woman who died for their country. Somehow a simple cross memorializing the death of veterans is the equivalent of establishing a religion. The dissent is a scathing indictment of the majority decision who worry that an observer would believe-or at least suspect-[italics in original] that the cross rests on public land . . . Apparently in three quarters of a century no one worried about it. The Ninth Circuit not only ignores Congressional approval transferring the land to a private party but contradicts this Supreme Court quotation: There is ample room under the Establishment Clause for benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference; Corp. of the Presiding Bishop of the Church of Jesus Christ of LatterDay Saints v. Amos, 483 U.S., 327, 334 (1987). Undoubtedly the government will seek review in the Supreme Court and the Ninth Circuit will add another reversal to their voluminous record. The majority in Buono cited not a single Supreme Court case in their decision. This case is not legal analysis. This is policy making. *** On the same day the Supreme Court reversed the Ninth Circuit in U.S. v. Ressam, 2008 WL 2028505 (See, Blog, May 20, 2008), the Justices also reversed U.S. Rodriguez, 2008 WL 2028149. Although the Supreme Court decision in Rodriguez is a technical review of sentencing under the Armed Career Criminal Act, 28 U.S.C.A. 924 (e), the government argued the defendants 5 year sentence imposed by the district court should have been 10 years. The Ninth Circuit, opting for leniency, affirmed the 5 year sentence for the defendant previously convicted of three felonies and arrested in possession of a firearm.

Tuesday, May 20, 2008

Statutory Interpretation; Supreme Court Reverses Ninth Circuit Terrorist Case: U.S. v. Ressam, 128 S.Ct. 1858 (2008)

U.S. v. Ressam, 128 S.Ct. 1858 (2009) Remanded to Ninth Circuit; 538 F. 3d 1166 (9th Cir. 2009) Ahmed Ressam attempted to enter the United States from Canada in his vehicle but gave false information of his identity to an inspector. At a secondary location, customs agents discovered explosives in his trunk destined for a terrorist attack in California. After his arrest, the Attorney General charged Ressam with feloniously making a false statement to customs officials in violation of 18 U.S.C.A. 1001, and carrying explosives during the commission of a felony in violation of U.S.C.A. 844 (h) (2). Convicted of both crimes, the defendant appealed to the Ninth Circuit. The Ninth Circuit panel majority (2-1) of judges interpreted the statutory language during the commission of a felony to require a relationship between the underlying felony (lying to the customs officer) and the act of carrying explosives. Finding none, the court reversed the conviction on that charge (count). Not only did the Ninth Circuit ignore decisions of two other Circuit Courts of Appeal on the same issue, it relied on one of its own vintage cases as precedent although decided prior to Congressional amendment of U.S.C.A. 844. Because of the three judge panel split decision, the court offered the entire Ninth Circuit panel of judges (en banc) an opportunity to rehear the case. Despite the obvious need to correct the original panel decision, a majority of the court declined a rehearing over the objection of six judges. Here is an excerpt from the dissent, minus a chilling description of the evidence of potential death to untold number of California citizens had Ressam succeeded in his plans. I dissent from the denial of rehearing en banc because we have not only usurped the congressional function, but have also created a split of authority with every other United States Court of Appeals that has addressed this question. The Supreme Court granted certiorari. In a brief 8-1 opinion the Court rejected the Ninth Circuit reasoning, peremptorily dismissing the Ninth Circuit decision. There is no need to consult dictionary definitions of the word 'during in order to arrive at the conclusion that [Ressam] engaged in the precise conduct described in section 844(h) (2). The termduring denotes a temporal link; that is surely the most natural reading of the word as used in the statute. Because [Ressams] carrying of the explosives was contemporaneous with his violation of section 1001, he carried them during that violation. The statutory language was so obviously unambiguous that two of the Justices concurred in a single sentence, impliedly dismissing the Ninth Circuit decision without the necessity of even writing a decision.

Friday, May 16, 2008

Evidence: Re weighing the Evidence: Brown v. Farwell, 525 F.3d 787 (9th Cir. 2008); Fourth Amendment Liability: Torres v. City of Madera, 524 F.3d 1053 (9th Cir. 2008); Immigration (Asylum): Fakhry v. Mukasey, 524 F.3d 1057 (9th Cir. 2008); Deported Five

All this in two days of Ninth Circuit opinions: Re weighing the evidence: Brown v. Farwell (Warden), 525 F.3d 787 (9th Cir.2008); Plaintiff arrested, and accidentally shot the plaintifff exposes defendant officer and city to liability; Torres v. City of Madera, 524 F.3d 1053 (9th Cir. 2008); Immigration judge erred in asylum application; Fakhry v. Mukasey, 524 F.3d 1057 (9th Cir. 2008); Illegal alien stays in US five years after ordered deported; Chen v. Mukasey, 524 F.3d 1028 (9th Cir. 2008). Brown v. Farwell: Re weighing the Evidence. Again. Prosecuted under a Nevada statute for sexual assault, the jury convicted defendant Troy Brown. On his appeal from the conviction, the Nevada Supreme Court affirmed; Brown v. State, 934 P.2d 235 (Nev.). Brown subsequently filed a habeas corpus petition in Nevada state court seeking to vacate the verdict and sentence. The state court denied his petition. Defendant sought habeas corpus from the U.S. District Court. Granted. During the District Court hearing before a single federal judge, the defendant supplemented the trial record by offering evidence that the DNA test implicating him at trial had proved inaccurate and misleading. In ruling on the petition, the District Court judge, never having seen the witnesses or presided at the trial, assessed the DNA evidence in addition to testimony and other evidence introduced at trial, and granted the writ of habeas corpus. The State appealed to the Ninth Circuit. The Ninth Circuit majority (2-1) panel summarized the conflicting evidence introduced in the trial court. The panel ignored the role of jurors who had heard the evidence and convicted the defendant at trial in spite of inconsistencies in the testimony of witnesses, ultimately resolving the conflict in favor of the prosecution. As conceded by the Ninth Circuit panel majority, Congress had stripped federal appellate courts of jurisdiction to hear the habeas corpus petition unless . . . the claim resulted in a decision [by a state court] contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States; 28 U.S. 2254 (d). To meet that test, the Ninth Circuit panel unearthed its favorite Supreme Court case for reversing state courts when it can find no other reason; Jackson v. Virginia, 443 U.S. 307 (1979). The Supreme Court in Jackson held a conviction in state court must be affirmed if after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The Nevada Supreme Court had held the standard of review for sufficiency of the evidence on appeal is whether the jury, acting reasonably, could have been convinced of the defendants guilt beyond a reasonable doubt." The Ninth Circuit panel majority in Brown concluded that the Nevada standard only requires a reasonable jury-not a rational one. This type of linguistic manipulation is ludicrous. How do you distinguish between a reasonable jury and a rational jury? The Ninth Circuit majority panel, citing another of their state court reversals employing comparable sophistry in Chen v. Mukasey, 373 F.3d 978 (9th Cir. 2004 (en banc), criticized the Nevada Supreme Court in Brown v. Farwell for failure to comply with the rational rule of Jackson. The Ninth Circuit majority panel launched into a DNA lecture defying comprehension but concludes that the results of the second DNA test might have been applicable to defendants brothers instead of Brown. Two of the brothers lived out of state and the third brother testified to an air tight alibi. The majority panel, jettisoning the Supreme Court rule to [view] the evidence in the light most favorable to the prosecution, reviews all the conflicting evidence favorable to the defendant and affirms the district court-all on a cold record without the benefit of hearing or seeing any of the witnesses. Brown does not allege a single legal error in the trial other than insufficiency of the evidence. No questionable voir dire of jurors; no prosecutorial misconduct; no erroneous jury instructions. Only a rhetorical distinction no jury would make between the words rational and reasonable. The Brown case, the Chen case-and the two cases it cites-also reversing a state court, clearly illustrate the practice of the Ninth Circuit reweighing the evidence. The jury resolved the testimonial conflict between the victim and the defendant, and the verdict did not rest entirely on DNA evidence. In fact, the rebuttal of the DNA trial evidence occurred in a supplemental hearing before a federal court judge without any jury and conducted subsequent to an evidentiary hearing denying habeas relief in state court. The dissenting judge (2-1) confirms this summary. The Supreme Court granted cert: 129 S.Ct. 1038 Torres v. City of Madera: Ordinary Negligence Becomes a Constitutional Case Officers responding to a complaint of loud music arrested Torres, handcuffed him and placed him in a patrol car. When he started to engage in disruptive conduct, the police officer decided to taser him. She accidentally unholstered her firearm instead of the taser and fatally shot Torres. His estate filed civil rights litigation asserting a Fourth Amendment violation, contending Torres was illegally seized, the ground necessary for litigation. The Ninth Circuit panel concluded Torres was undergoing a continuing seizure, a novel doctrine of their own invention, and qualified for Fourth Amendment protection. The parties in the trial record did not explore the question of whether the seizure was reasonable as required by the Fourth Amendment, and the panel remanded to the trial court (which had ruled in favor of the City on a summary judgment motion) to expand the record. The judicial waste of time in this case is absurd. This unfortunate accident is a simple case of negligence, if anything, and should have remained in the state court but for the federal claims or diversity of citizenship. Fakhry v. Mukasey: Overstay Your Visa for Three Years? Apply for Asylum Immigration law is a labyrinth of statutes and regulations governing deportation, asylum and the Convention Against Torture. The Department of Homeland Security immigration judges (IJ)who hold hearings on these topics are an agency of the federal government, and not an Article III court concerned with litigation. Despite Congressional attempts to reign in federal court review of agency decisions, the Ninth Circuit repeatedly applies litigation law to agency decisions, including Constitutional provisions of due process and ineffective counsel. The Ninth Circuit does not understand the principle role of the immigration judge: to decide credibility, not engage in judicial abstraction and rhetorical distinctions without a difference. IJs obviously must apply relevant statutes or immigration regulations, but with a practical eye, not a quest for error. For example, Fakhery came into the United States in 1999 on a temporary visa. Three years later he applied for asylum but his petition was denied by the IJ on the ground the statute limited these applications to one year from the date of entry. An exception exists to the statute (resembling a statute of limitations in litigation) when changed circumstances exist in the country of origin. Setting aside a recitation of all the facts in the case, the evidence established his wife never left the country of origin and Fakhry returned there on at least one occasion to move them to another city. After engaging in another mind bending analysis of Fakherys subjective intent, applying legal procedural rules applicable in litigation, i.e., presumptions and burden of proof, the panel interprets the statute to conclude there is no reason why he should not have another hearing because the IJ interpreted the statute differently. After living in the United States on an expired visa Fakhery applies for asylum despite having returned to his country where his wife continued to live. Chen v. Mukasey: Live in the U.S. Five Years After Ordered Deported Petitioner (Chen) entered the U.S. in 1999, and was arrested for presenting a false passport, and released on $7500.00 bond. An exclusion hearing was held, she failed to appear and was ordered removed in absentia. An arrest warrant was issued for her removal. She subsequently moved to reopen the proceedings. The petition was ruled untimely (apparently no one thought about arresting her on the warrant). In 2001 she married and had a child in 2002. She filed another motion to reopen her case in 2004. Denied. In 2005 she had a second child, and filed another motion for asylum alleging changed personal circumstances, i.e. had occurred endangering her return to China based on its one child sterilization policy. The Ninth Circuit engaged in an interpretation of two statutes relevant to her petition, possibly in conflict, and decided the petitioner is ineligible for asylum. This summary of the proceedings is astonishing. An illegal alien is arrested for presenting a forged passport; released on nominal bail; fails to appear at her hearing; an arrest arrant is issued; she remains in the U.S. and has a child; files another petition for asylum; denied; has a second child and files for again for asylum; denied by the Ninth Circuit in 2008. From 1999 to 2008 petitioner lived in the U.S. despite a deportation order and an arrest warrant. Chen, ignoring the order and the warrant, continued her residence in this country, bore two children and now seeks asylum (after two denials) on grounds of Chinese policy. And the arrest warrant is presumably outstanding.

Saturday, May 3, 2008

Sentencing: Ninth Circuit Denies Sentence Enhancement for Double Murder, U.S.A v. Eugene Rising-Sun, 522 F.3d 989 (9th Cir. 2008)

U.S.A. v. Eugene Raymond Rising-Sun 522 F.3d 989 (9th Cir 2008) In a remote location several miles from a tiny Montana town on the Crow reservation, officers found two dead women lying in a ditch. An autopsy revealed each had been struck in the head by a blunt instrument. The murder investigation focused on the defendant Rising Sun, and the FBI discovered physical evidence linking him to the crime. Investigators interviewed the defendants brother who said they had driven the two woman to the location on the pretense of partying together. Stopping the car during the drive, the two women and the defendant exited. The brother heard defendant accuse one of the women as a narc. He heard a woman scream, followed by a loud thump, and saw the defendant smack her. The defendant dragged her body into a ditch, chased the other woman and repeatedly hit her with an object obtained from the trunk of the vehicle. Defendant pled guilty to two consecutive life sentences supplemented by sentencing enhancements for killing the women who were vulnerable to attack in a remote location. Sentencing also included an enhancement for obstruction of justice based on the testimony of other witnesses who had seen defendant destroy evidence linking him to the crime. The trial court also imposed an additional sentence of Extreme Conduct and Criminal purpose. Defendant appealed the enhancements to his sentence, alleging the trial court erred in sentencing pursuant to federal sentencing guidelines; U.S.S.G. 3A.1 (b) (1). This section enhances a sentence if the defendant knew or should have known that the victim of the offense was . . . one who is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to criminal conduct. The Rising Sun court cited Ninth Circuit precedent in U.S. v. Peters, 962 F.2d 1410 (9th Cir.1992), that the language otherwise particularly susceptible to criminal conduct requires the sentencing court to consider the victims personal traits of age, physical or mental condition in addition to the circumstances surrounding the criminal act; This interpretation requires the court to consider factors including physical traits to establish a victim particularly susceptible to crime. Yet the Peters court upheld the enhanced sentence without any evidence of the personal traits of the victim of mail fraud. In U.S. Castellonos, 81 F.3d 108 (9th Cir.1996), also cited by the Ninth Circuit, the panel in Rising Sun wrote: It is unclear precisely why the [Sentencing] Commission chose to employ the separate concepts of unusually vulnerable and particularly susceptible except to suggest that characteristics of age, physical condition or mental condition may render a victim worthy of the special protection of this section whereas other circumstances might make the victim subject to such protection depending upon the nature of the particular criminal conduct. Citing Peters and Castellanos, both cases involving mail fraud- not murder-the Rising Sun court found no evidence of the victims personal characteristics that warranted enhanced sentencing. The court distinguished another case, U.S. v. Weischedel, 201 F.3d 1250 (9th Cir. 2000) in which the defendants murdered a car salesman who had driven them to a remote location but, according to the Ninth Circuit, the victims job required him to drive a car remotely thereby enabling the putative buyers to kill him. The prosecution offered no evidence of the salesmans personal traits. Commentary: The court in Weischedel wrote nothing about physical characteristics of the victim, only evidence that the victims job required him driving to a remote area. . . . [T] circumstances that made the victim particularly susceptible to the criminal conduct resulted from the requirements of his job. That the two women killed by defendant Rising Sun voluntarily accompanied him to a remote area somehow distinguishes this case from murder of the car salesman on his job suffering the same fate is ludicrous. In Rising Sun, the evidence clearly established the killing occurred in a remote location. The victims were lured by an invitation to party, and during their drive the defendant accused one of the women as a narc. This evidence clearly established premeditation and an intent to kill the women by selecting a location rendering the women vulnerable to attack and unable to escape, seek assistance, or defend themselves. The sentencing judge used that explanation to impose the enhanced sentence. U.S.S.G. 3A (b) (1) permits enhanced sentencing under two conditions; First, the vulnerability of the victim based on age, mental or physical condition. These factors relate directly to the status of the victim, i.e., young, elderly, mentally impaired or physically disabled. The second statutory condition enhancing sentence provides an alternative to vulnerability of a victim and reads, or [a victim] otherwise particularly susceptible to criminal conduct. The use of the conjunction or in the statute clearly distinguishes a vulnerable victim from one particularly susceptible to criminal conduct, and the latter is devoid of any reference to personal traits. Otherwise the statute would use the word and to couple the two categories. Under the Ninth Circuit interpretation the second alternative of susceptibility to criminal conduct is cumulative of the term vulnerable. In fact, the two descriptions of victims are separate sections, one focusing on status, the other on conduct. The correct interpretation of the sentencing guidelines requires the court to consider factors other than physical traits to establish a victim particularly susceptible to criminal conduct. The Peters court upheld the enhanced sentence without any evidence of the personal traits of the victim of mail fraud. Castellanos is an equally inapplicable case of fraud perpetrated against a Spanish speaking community. In Castellanos, the Ninth Circuit panel cited other circuit court opinions, all fraud cases. Not a single case cited by the Ninth Circuit panel supports their decision to merge the two separate sections of sentencing guidelines in Rising Sun. The only relevant case is Weischedel, directly on point in Rising Sun and confirming sentence enhancement.