US v. C.M., No. 05-50585 (5-8-07). It is almost like the border patrol thought to themselves, "How can we violate every single provision of the Juvenile Delinquency Act (JDA)?" This is a juvenile case, in which the defendant was apprehended for possibly smuggling aliens. He was not taken directly to a magistrate, his request to speak to the Mexican Consulate was ignored, and no family members were contacted despite the juvenile providing the information of their whereabouts. Of course he confessed, but that was really the only evidence that he knew the passengers were illegals. The 9th (Ferguson joined by B. Fletcher) found no constitutional error, but blatant and pervasive violations of the JDA that rose to misconduct. The adjudication was reversed and the case remanded. The opinion details every misstep by the officers, and every point where they had a chance to take action under the JDA but chose to violate the JDA instead. Dissenting, Callahan does not quarrel with the violations, but is inclined to find them harmless. In any event, she would remand for a determination of the remedy for misconduct rather than a reversal of the adjudication.

US v. Esquivel-Ortega, No. 05-30355 (5-8-07). Life may be a highway, but just because you're a passenger in a van that's stopped, and you get upset, it doesn't mean you're part of a drug conspiracy using the road. The 9th (Tashima joined by Berzon and (!) O'Scannlain) reverse for insufficiency of evidence. The first issue was standard of review, because the defendant moved for acquittal, and then put in government discovery and evidence for its case without renewing the motion. The 9th found that it should still be de novo because nothing had really changed, and the evidence was already before the court. The facts had the defendant and his family as passangers in a van that had a secret compartment. Someone else was driving. The DEA had an undercover operation that called and a man with a Hispanic accent answered the CI's call. There was nothing that linked the defendant or his family to the van besides their being passengers -- they did not own it (a relative did), they only shared the driving, and they were going on vacation. Essentially the government's case was that defendant became upset when told the van would be impounded and he said that he had never been in trouble, and was worried about his family, who were with him. There were a few tools in the van, some bondo, and fast food trash. The 9th could not find the link of knowledge and so reversed for insufficiency. There is a nice summary of the insufficiency evidence cases with drugs in the opinion.