Appellate Law & Practice

Another disturbing laptop case from the 9th on how the First Amendment must hew to cops

In light of recent precedent, many lawyers that respect their clients’ confidences travel with laptops that do not contain sensitive information. This means: 1) no notes from interviews; 2) no medical records; and 3) no draft pleadings or other motions.

In fact, some people don’t even travel with laptops that contain hard drives, opting instead to access any data they need via a secure connection and store all programs on a write-only CD or similar medium. (You can build one with parts found on Ebay for under $80.  Ironically, many of the parts are ex-government surplus, often from the FBI.  But when they shut down, there is no record of anything that was done on that computer, or even that the computer was even turned on.)

In my mind, there is a legitimate fear that prying eyes will look at privileged (or confidential) information.

Unfortunately, we never get to litigate these issues.  Customs stops child-pr0n carrying pr0n people at their borders, and cooks up some rationale to search their laptops.  And, according to DotD, Judge O’Scannlain is more than happy to explain how laptops, at the border are more like “cars” than “closed containers.”  The case is U.S. v. Arnold, 06-50581 (9th Cir., April 21, 2008).

Suspect that there is some text below the fold?  If so, keep reading.

CA9: Ninth fixes its jurisdictional faux pas on waivers in pleas

A little while ago, the Ninth, for some strange reason held that it lacked jurisdiction “to even hear an appeal because of the 11(c)(1)(C) plea.”  Some law clerk screwed that up.  Today, the Ninth Amends its opinion and undoes the damage done.  The case was U.S. v. Garcia, No. 05-30356 (4-17-08) (amended).  Tnx Ninth Circuit blog. 

CA1: First sides with credit reporting agencies where valid loan was secured by forged mortgage

DeAndrade v. Trans Union LLC, No. 07-1844.  This is a credit-reporting screw-up case (in which the defendants are accused under the Fair Credit Reporting Act, 15 U.S.C. §§ 1681-1681x ("FCRA") of not “reinvestigat[ing] properly and delete the disputed debt from DeAndrade's credit report.”  What is startling about this is that the plaintiffs claim that their signatures had been forged on a mortgage placed on their home that was obtained to secure the purchase of some new windows.

When the underlying lawsuit (involving the forged signatures) was commenced, the plaintiffs started paying the undisputed debt into escrow and informed the credit-reporting agencies.  The credit reporting companies “investigated” and found against the plaintiffs.  So, the plaintiffs sued.  The credit reporting companies argued that this was really a collateral attack on the loan.

The First looks at the difference between and § 1681e(b) claim and a 15 U.S.C. § 1681i(a) (reasonable investigation) claim.  The First concludes that the “plaintiff must also adduce sufficient evidence to show that the disputed information was in fact inaccurate.”  In this case, the court concluded that the underlying loan was “ratified” even if the validity of the mortgage is being attacked and “This is not a factual inaccuracy that could have been uncovered by a reasonable reinvestigation”

Debt Law Network comments here.

For an example of the Ninth going the other way, see here.

Judicial procedural appellate activism?

Since most people that talk about “judicial activism” are political hacks seeking the favor of non-lawyers, I don’t take them seriously.  In fact, I think they should be disbarred.  However, I have attempted to compile two definitions (taken in part from Professor Sunstein) that provide an ideological definition of “activism.”

1. Any invalidation of any statute or regulation is per se activist. (Not that that is a bad thing.  A political decision by a court not confront the legislature or the executive because it is afraid of them would be a bad thing.)
2. Any decision by a trial court in which disregards the positions of both parties.  This may include sentencing above what the prosecutor requests, ruling on facts not in evidence, etc.

But, the Ninth Does an interesting thing. California Appellate Report reports thusly:

The parties briefed ... argued it in Seattle before a three-judge panel... almost a year later... before issuing a ruling, the panel asked the parties to brief whether the case should be decided en banc. At which point both of the parties said: "No." To which the Ninth Circuit appropriately responded, two months later, by taking the case en banc. ...

Got that?  The panel really wanted to go en banc.  The parties really didn’t want to.

...The Ninth Circuit sets the oral argument ... The parties don't feel like showing up.

The parties settled.  The appeal was dismissed.  And what was this great issue of constitutional moment that the Ninth Circuit so needed to take en banc to provide guidance for everyone?

I bet it was abortion.  Or pornography.  Perhaps a voting rights issue?  Or a criminal procedure issue that will effect the lives poor people and prosecutors?   Click below the fold for the answer.

Ninth makes absolute immunity issue as clear as day

DotD points to a brief opinion by an en banc Ninth Circuit reversing itself on the issue of whether Social Workers (that work for the departments charged with taking kids away from parents) are entitled to absolute immunity for statements in a child dependency petition.  The result is that they get qualified immunity.  But, in doing so, the Ninth lays out the law on absolute immunity for prosecutors (and now social workers) very clearly, so that there can be no mistake:

• It follows that social workers have absolute immunity when they make “discretionary, quasi-prosecutorial decisions to institute court dependency proceedings to take custody away from parents.”

• But they are not entitled to absolute immunity from claims that they fabricated evidence during an investigation or made false statements in a dependency petition affidavit that they signed under penalty of perjury, because such actions aren’t similar to discretionary decisions about whether to prosecute.

• A prosecutor doesn’t have absolute immunity if he fabricates evidence during a preliminary investigation, before he could properly claim to be acting as an advocate or makes false statements in a sworn affidavit in support of an application for an arrest warrant...

• Furthermore, as prosecutors and others investigating criminal matters have no absolute immunity for their investigatory conduct, a fortiori, social workers conducting investigations have no such immunity.

I don’t think it gets any clearer than this.

CA9: Expert witness on mens rea of tax protester (and contempt)

The Ninth Circuit blog points to United States v. Lawrence Cohen, __ F.3d __, 2007 WL 4485629 (9th Cir. Dec. 26, 2007).  The defendant is one of those “crazy” tax protesters.  Now, most of us refer to tax protesters as “crazy” in the sense that “they behave in a way that nobody I want to associate with behaves, and they have ideas that are so far outside my reality that I don’t take them seriously.”  But, this guy is different.  His lawyers actually think that he is crazy.  A shrink writes a report which reads ““[h]is behavior is driven by a mental disorder as  opposed to criminal motivation . . . Although it is true Mr. Cohen was not delusional or psychotic and was in possession of basic mental faculties, his will was in the service of irrational beliefs as a result of narcissistic personality disorder.”  The Ninth says that this testimony could have helped the trier of fact, because the expert was proposing to testify that “...once Cohen adopted [Irwin] Schiff’s views, Cohen would not change his mind.... [and] a narcissistic personality disorder like Cohen’s can cause a person to continue to believe something to be true despite overwhelming evidence of its patent absurdity.”  The Ninth expresses some hesitation about allowing in all of the proposed testimony, because some of it might really be invading the province of the jury to determine mens rea, but it says that weeding that stuff out is for the District Court. 

Anyway, the guy did lots of things to annoy the District Judge.  He was held in contempt (fifteen times), but the judge “failed to file contempt orders as required by Federal Rule of Criminal Procedure 42(b).”  The Ninth says the remedy for this is to remand, but “On remand, the district court may reinstate the contempt convictions and resentence him so long as it does not increase the individual punishments for any of the fifteen convictions.”  It also mentions a mathematical error. The Ninth says, however, that the District Court’s procedure (of doubling the sanction for each time he did something contemptuous) doesn’t raise due process problems, because it happened immediately after the offense occurred, and sentencing him post-trial for some of the contempts does not run afoul of Taylor v. Hayes, 418 US 488 (1974).  Each sentence was less than six months, so there was no jury-trial problem.

The post ends with this: 

Cohen has sparked much interest among bloggers. For a taste of a law prof's sour grapes (he was on the government's early briefing), see Brian Galle's comments here. More mens rea analysis (and some interesting gossip on other details of the case) can be found here. 

CA9: Supervised release conditions must be supported by record and not by fight with PD

Buried in a white collar case referred to in Cal. App. Report (in which a guy that worked at a credit union took bribes) is an important issue:  A “no-alcohol” supervised release must be supported by facts in the record.  The fact that the Public Defender (like many Pds) have a blanket office policy against instructing defendants to answer questions about their booze-usage is not an excuse for judges to impose such conditions.

The Ninth Circuit writes:

The bureaucratic reason for the sentence, to set court policy against federal defender office policy in order to compel a change in federal defenders’ office policy, is prohibited in the context of sentencing by the requirement in 18 U.S.C. § 3553(a)(1) that the court must consider “the history and characteristics of the defendant.” Sentencing must, under section 3553, be individualized.  Congress can make non individualized policies, but not judges. We squarely rejected the proposition that the defendant has the burden to come forward with information in a decision that came down after the sentencing in this case, United States v. Weber ([penile plethysmograph devices as conditions])  We held in Weber that the government bears the burden to demonstrate that the discretionary supervised release condition is appropriate for the particular case. The defendant does not bear the burden to demonstrate that a discretionary condition is unnecessary.

¶

Anger about the 9th’s sentencing decision in Saeteurn

West coast FPDs (and obviously, everyone else) is angry about the Ninth Circuit’s decision in United States v. Saeteurn, __ F.3d __, 2007 WL 2983806 (9th Cir. Oct. 15, 2007) which concludes that a District Judge need not resolve preserved disputes about the accuracy of a PSR unless the effect the length of a sentence. What the Ninth Doesn’t seem to get is that things in the PSR, unless correct, can and will impact conditions of confinement. In this case a citizen-defendant that was incorrectly described as a resident alien (a fact the government does not dispute) will be rendered ineligible for a prison camp (or rehabilitation programs) and won’t be eligible for early release. Is this just a mistake by a law clerk, or is it some kind of greater ignorance?

CA9: laying down the law on “conspiracy” liability

California Appellate Report points to US v. Garcia.  In footnote one, the 9th says that the AUSA mislead the District Court.  Why did he do it?  Why the District Court fall for the trick.  Whatever the case, it causes the 9th to lay out some principles of conspiracy liability, which I reproduce below:

We are troubled that it appears the prosecutor brought charges against Garcia on Counts IV through VI — and the district court allowed those charges to go to the jury — based on the prosecutor’s misstatement at trial about the extent of conspirator liability. On appeal, the government conceded that the prosecutor “persuaded the judge of an incorrect proposition of law,” specifically that “under the general law of conspiracy, if you join an ongoing conspiracy, you’re responsible for everything that went on before it.” This proposition is correct only in the context of establishing vicarious liability for acts establishing the crime of conspiracy itself rather than vicarious liability for other substantive offenses committed in the course of a conspiracy. [A bunch of citations to cases and treatises]  It is thus unclear whether Garcia would have been charged with Counts IV through VI if the prosecutor had not misunderstood conspiracy liability, but in any event, we conclude that the government did not present sufficient evidence that Garcia had joined the conspiracy in July 2003, and we reverse Garcia’s conviction on that basis.

The government conceded the issue, by the way.

¶

CA9: unavailability explained

Ninth Circuit blog points to United States v. Yida, __ F.3d. __, No. 06-10460, 2007 WL 2325143 (9th Cir. Aug. 16, 2007), which explains the “unavailability” requirement of FRE 804(a)(4) and (a)(5).  Essentially, the government doesn’t get to introduce deposition testimony when it let the witness it intended to rely upon at trial go (based on a promise to come back to the US).   

• The other blog with a similar name comments here.
• California Appellate Report comments here.