US v. Narvaez-Gomez, No. 05-50501 (6-6-07). In a 1326 trial, the defendant argued that Border Patrol engaged in a two-step to sidestep Miranda -- the Seibert bar. The agent questioned defendant without Miranda warnings, elicited incriminating statements, and then later, issued warnings, and got a second confession, which was used. The 9th first had to decide what standard of review was required. It elected to go with "clear error" for the factual findings. The ultimate determination of voluntariness is, of course, voluntariness. Here, the 9th affirmed that a "two step" was not used as the first statement was referred to, it was four hours later, and the cast changed. The 9th also affirmed the court's exclusion of testimony as to the INS record keeping. The court required a proffer or some evidence that defendant sought permission; testimony about record keeping without tying to this defendant was not relevant and properly precluded. The 9th did vacate sentencing because the court used California Penal Statute 246 as a crime of violence. This statute concerns the discharge of a weapon at a house. The 9th, in Fernandez-Ruiz, 466 F.3d 1121 (9th Cir. 2006) (en banc), held that a crime of violence requires intentional use of force, and not reckless. Section 246 with discharge had a recklessness possibility and therefore could not be categorically a crime of violence. Lopez-Torres, which had found 246 always threatened physical violence is thus abrogated.

Congratulations on the sentencing win to Jim Fife of the Federal Defenders.

US v. Mayer, No. 06-50481 (6-6-07). This opinion charts the boundaries of police surveillance of the First Amendment and associations. An FBI agent joined the North American Man/Boy Love Association (NAMBLA) to investigate foreign sex trade. Although the initial investigation fizzled, the agent stayed with NAMBLA and eventually attended a meeting, where he befriended defendant. They expressed interest in traveling abroad for sex with young males, and a sting operation was set up. On appeal, defendant raised various First Amendment challenges to the infiltration as violating freedom of association, compelling membership rolls, and other issues. The 9th (Hall joined by O'Scannlain and Callahan) refused to find an "agent provocateur" First Amendment violation (an agent joining a protected First Amendment association to foment criminal activity). The 9th also will not require a heightened requirement to investigate associations. Legitimate police investigative purposes will suffice. The 9th did suggest that disruption of NAMBLA (the agent had offered to host the 2005 convention) was better addressed through a 1983 action. The 9th found no misconduct.

Gautt v. Lewis, No. 03-55534 (6-6-07). The state tried petitioner on one homicide charge with an enhancement for use of personal weapons, and then for sentencing used another enhanced charge (intentional use of a weapon) to go from a 10 years to 25 to life. The 9th (Berzon joined by McKeown and King) held that defendant could not be charged with one sentencing enhancement at trial and then sentenced under another. This violates due process. Here, the case revolved around whether the petitioner accidentally fired or used a weapon. At sentencing, the State argued for an intentional use of a weapon. This was not charged, and the court confused the statutes in its instructions. Argument by the state and defense counsel never went to intent. Thus, the mistake violated due process.