Appellate Law & Practice

More on laptop border searches

The Ninth Circuit Blog shows all the problems in United States v. Arnold __ F.3d __, 2008 WL 1776525 (9th Cir. April 21, 2008), which we covered here.  In short, this holds that not even reasonable suspicion is required for a border laptop search.

Here are the problems in it:

• The images that lead to the search were simply legal images of nudity.
• The Ninth, by O’Scannlain, analyzes the First Amendment issues just by parroting the Fourth Circuit.  Now, I guess most of us already were thinking that O’Scannlain doesn’t take the First Amendment too seriously, but did he really need to rub it in our faces by not even pretending to do any analysis of this, and just “parroting” the Fourth.
• An Assistant United States Attorney Admitted that “she had Customs troll for single men coming back from Asia with laptops at SFO – these passengers earn an automatic referral to Secondary and an order to boot-up “
• This doesn’t resolve the “password” problem, of whether an individual can be compelled to reveal a password.

Researchers Discover Massive As^$#e In Blogosphere

Story here.

CA1: Columbian asylum claim fails

Vallejo Piedrahita v. Mukasey, No. 07-1850 denies a petition for review of a Columbian that might have been persecuted by the FARC.  The First says that most of the issues were waived in the opening brief, and the IJ’s Decision was supported by substantial evidence. 

CA1: another false statements to gun dealers case

US v. Whitney, No. 07-1934. This is another 18 U.S.C. § 922(a)(6) (false statement to a gun dealer) case. The big question is whether the jury was properly instructed on the “willfulness” element. In this case, the defendant was not only under some restraining order, but he had been previous arrested for violating that order. Relying on United   States v. Edgerton, 510 F.3d 54, 57 (1st Cir. 2007) (our coverage here), the First says that no “willful blindness” charge to the jury was necessary and cites a few other cases for support.

Finally, it wasn’t an abuse of discretion to admit the earlier arrest, as it showed knowledge of the order.

CA1: railroaded jailhouse lawyer can sue where he was railroaded to

Hannon v. Beard, No. 07-2272.  This is a piece of prisoner litigation.  But it is not an easy one.  Let’s see if we can lay out the figures.  Mr. Hannon (“the quintessential jailhouse lawyer”) was convicted of a crime in Pennsylvania, but was moved to Massachusetts (perhaps in retaliation for his lawyering).  In typical state-sponsored style, his legal materials “disappeared.”  In this lawsuit he sued some people in Pennsylvania (the Secretary of the Pennsylvania DOC and a librarian) as well.  Naturally, after he sued in Massachusetts, he was transferred again.  This guy does an awful lot of traveling.

Anyway, the District Court held that it didn’t have jurisdiction over the Pennsylvania defendants because, even though they sent him to Massachusetts, they didn’t transact business there.  So, it all comes down to the the Massachusetts long-arm statute, which is as wide as the constitution allows.  Mass. Gen. Laws ch. 223A, § 3(a)  (“[a] court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action in law or equity arising from the person’s transacting any business in this commonwealth.”).

The First sides with Hannon, and regarding the Secretary of Corrections, it writes:

The contacts that Beard would have had to make to arrange for Hannon’s transfer from Pennsylvania to Massachusetts are sufficient to constitute “transacting business” under the broadly-construed long-arm statute. The district court erred when it reasoned that because “[t]he decision to transfer plaintiff . . . occurred in Pennsylvania,” it lacked jurisdiction over Beard.

Hoston's oversimplifications are misleading

CNN has a "Commentary" piece by Sunny Hoston, whom Wikipedia tells me went to Notre Dame, was a beauty queen, and then clerked for Chief Judge Robert Bell of the Maryland Court of Appeals.  Wikipedia's article (seemingly written by a publicist) also tell me that antitrust lawyers in DOJ are the "smartest" and that she was a "tough as nails" prosecutor (whatever that means.)  Are there some prosecutors that are "tough as brie?'  Are the folks in the Tax Division less smart? Whatever the case, the prosecutin' life was not for her, and she married a doctor and moved to Westchester.

Anyway, she writes the most bizarre article on CNN about a recent trial. She writes:

I predict that the Sean Bell case will be examined in law school classrooms across the country.

Granted this is a prediction, aimed at non-lawyers, and it doesn't need to be backed up by much.  However, Ms. Hoston doesn't explain that with the exception of trial practice courses, most law school classes don't examine trials.  That isn't the way law is taught in the United States.  She knows this.  But, because she is talking to non-lawyers, she omits this fact.

The Sixth Amendment to the Constitution ensures that we have the right to a trial by a jury of our peers in a serious criminal case. But as with all rights, you can voluntarily, knowingly and intelligently waive that right and instead have your case tried by a judge.

This simply is not the law.  She should know this.  Under the Federal Rules of Criminal Procedure, there is no right to unilaterally waive a right to a jury trial and opt for a bench trial.  Fed. R. Crim. P. 23(a).  This restriction has been upheld by the courts.  (E.g. US v. US District Court).  In fact, there is no absolute right to plead guilty, either.  But, when talking to the lay people she neglects to mention this.  In New York state courts, however, people can unilaterally waive their right to trial before a jury.  However, she erroneously (and perhaps deliberately) neglects to inform the public of this distinction. 

Is this another example of lay-people trolling, or did she genuinely not know this?

The affordable cost of appellate advocacy

Washington Post details how much Larry Craig has paid to some firm called Sutherland Asbill & Brennan to not have his guilty plea set aside.  It is unclear whether the failure of Sutherland Asbill & Brennan make their client’s legal problems disappear is a result of not being detail oriented, or representing someone with a truly hopeless case.  Tnx. New West.

See, our earlier posts on this (with actual documents) here.

And, of course:

911 call of the week

Dear AL&P:

What does it sound like when a cop takes pot from suspects and puts it into brownies, then thinks he “overdosed” on said pot and calls 911?

Signed, Wondering in Washington

Dear WW:

Glad you asked.  Click here.

(Tnx Indefensible)

CA1: deputies sue sheriff under 1983 and win

Davignon v. Hodgson, No. 06-1191.  This is a 1983 action – by union corrections officers claiming that the First Amendment rights were violated – against the sheriff.  At trial, the officers won a small victory.  The sheriff appealed. 

The most interesting issue if how the First deals with an inconsistent verdict claim, as the 1983 verdict seems to have conflicted with the state law claims.  The First analyzes it and says that yes, the jury could find such a “strained” set of facts.

Strangely, the sheriff seems to have overdone the rhetoric against his officers by referring to Supreme Court cases.  But the First explains that most union speech actually is protected under the First Amendment and is, in fact, a matter of public concern.  (The First rejects the invitation to summarily accept this, and instead goes on a very long analysis concluding the same thing.)  Then it engages in a balancing of the interests at stake, and affirms the jury’s verdict.  Likewise, the First there was a “causation” case made out – in that the deputies discipline was caused by the protected activities.  Pretty much the same result is reached with regard to the “freedom of assocation” claim.

Evidentiary claims about admission of an administrative decision (used to show identity), and a reopening to present evidence of lost wages are affirmed. 

Finally, the First rejects some really strongly pro-defendant jury instructions, i.e. “Judicial review of prison officials' actions is very limited.”

CA1: A cache problem

US v. Morales Aldahondo, No. 06-2533. 

See the comments and this post for correction of some errors.

In a child pr0n case, the First hold that a Franks hearing regarding the staleness (three years) of material obtained reached an acceptable conclusion.  There is a little problem with the Court’s logic.  Look at this paragraph, complete with cites:

As earlier recounted, both the warrant application before the magistrate and the testimony presented to the district judge provided considerable support for the government's position that customers of child pornography sites do not quickly dispose of their cache. This is not a new revelation. See Ricciardelli, 998 F.2d at 12 n.4 [(1st Cir. 1993)]("[H]istory teaches that collectors prefer not to dispose of their dross, typically retaining obscene materials for years.”). Accord, e.g., United States v. Irving, 452 F.3d 110 (2d Cir. 2006) (two years); United States v. Riccardi, 405 F.3d 852 (10th Cir. 2005) (five years).

A cache is different than a collection.  A “cache” in cyber-speak is a portion of a hard drive that keeps images in case you want to view them again.  While most users know how to delete their cache (usually to free up space), most users do not use the cache as a means to access images, as the computer will likely delete them when it figures it needs more space. 

Moreover, most users have little or no control over what goes into their cache. If you go to a website, whatever pictures there will be in your cache.   Making this a bit more complicated is the fact that there is an affirmative defense under 18 USC 2252(c), for someone that inadvertently comes across an “illegal” image to destroy it. Most people would figure that they never “had” an image in the first place, so they have complied with 2252 by simply not looking at the webpage anymore.

Whatever the case, the First concludes that “ In our view, the testimony of the government’s knowledgeable witness, combined with the weight of authority, defeats appellant's staleness argument. Thus the district court did not err when it denied Morales's motion to suppress.”  It seems that the First is confusing human “cache” of things with a computer’s “cache” of images.  Maybe the First didn’t understand this, or maybe they are just reaching to help the government.

Finally, the First says it wasn’t an abuse of discretion to let the jury see some of the photos.