Wednesday, July 26, 2006

US v. Romm, No. 04-10648 (7-24-06). An international airport is a border port of entry, and a laptop brought in by a defendant can be searched. The defendnat was sent to Las vegas for training. There, he downloaded child porno. He then flew to british Columbia, where Candian officials stopped him, examined the laptop, saw the photos, meanwhile alerting the US officials. Arriving, he made statements and had his computer searched. The 9th upheld the search, finding that a laptop could be examined as part of a border search. The 9th didn't consider, because it wasn't preserved, whether the search was a first amendment violation. The 9th also refused to extend "official restraint" to such a situation of being refused entry by another country and sent packing. The jury instruction regarding possession failed to have the element of "knowledge." This was plain error, but harmless.

US v. Salazar, No. 04-50392 (7-24-06). The 9th affirms a conviction for destruction of a public document. The defendant worked for the INS, and the unit fell behind in filing documents that went into A files. So, the defendant started shredding, and shredding, and shredding. This deliberate act was intentional, and met the requirememnts of the statute. There was sufficiency of evidence.

US v. Cortez-Rivera, No. 05-50207 (7-24-06). In an interesting appeal, the defendant argued that the grand jury was wrongly instructed. The model instruction stated that the grand jury "should" not consider punishment in voting to indict. The 9th said that the word "should" rather than "shall" saves the instruction, and the role of the grand jury. The grand jurors have discretion to fulfill their function as a charging body. The 9th also held that when a defendnat alleges that damage to a vehicle during a border search, he shoulders the burden to prove that the vehicle's damage made it unsafe and inoperable. If the defendant makes the showing, the burden shifts to the gov't to show that such a search was reasonable. Here, the damage was only to an inside quarter panel; the vehicle was not shown to be unsafe or inoperable.

King v. Lamarque, No. 05-15757 (7-26-06). The 9th remands a petition for the district court to determine whether a procedural rule's application is still too ambiguous to act as a bar. The 9th held that the California rule barring petitions filed after "substantial delay" was too fuzzy for certainty in capital cases. The 9th finds that alleging such ambiguity, especially after the 9th held that the rule was ambiguous, meets the burden. The district court must determine whether the state courts have clarified the rule and whether it has been consistently applied. The 9th does turn down petitioner's argument that the bar should be tolled because he needed time to find an expert, whose opinion bolsters his case. the 9th holds that petitioner could have done that sooner on the facts known. Reinhardt, concurring, would not reach that issue because the expert helped support petitioner's case, and the 9th has taken others to task for not supporting their allegations with specific facts. To Reinhardt, the petitioner's waiting a reasonable period to hire an expert to support his claim would not default his claim.


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