US v. Grace, No. 06-30192 (7-12-07). This is an interlocutory appeal from the court's preclusion of government witnesses. The prosecution of the Grace mining company and defendants grew complex. The government's witness list kept growing, and reached several hundred. The district court grew frustrated with the government's ever-expanding witness and evidence lists, and set a deadline for disclosure of a witness list. The government missed the deadline, and when witnesses -- expert and nonexpert -- were precluded, this interlocutory appeal followed. The 9th (Fisher joined by Wallace and Wardlaw) first had to decide if this met the requirement of 3731 that there be a substantial issue for the government. The 9th focused on the evidence, and decided that the government had met the showing of materiality by identifying witnesses and evidence. Turning to the merits, the 9th held that the preclusion of nonexpert witnesses under Rule 16 was error. Rule 16 does not require disclosure, and the 9th "explicitly held that a district court that orders the Government and the defendant to exchange witness lists and summaries of anticipated witness testimony in advance of trial has exceeded its authority under Rule 16 of the Federal Rules of Criminal Procedure and has committed error." Hicks, 103 F.3d at 841. Note that the 9th made this a bright line: courts cannot force disclosure and it is error if it does. With experts, different rules apply, but preclusion is a last extreme sanction, and the court here did not find wilfulness on the part of the prosecutions. There are lesser sanctions, if any. Wallace concurred on the issue of interlocutory to state that requirement of "substantial materiality" was nowhere in the statute, and the 9th is out of step with this requirement. Wallace would take this en banc.

US v. Abbouchi, No. 05-50962 (7-13-07). The 9th (Pregerson joined by Gould and Clifton) hold that regional sorting hubs for packages being shipped abroad by such carriers as UPS or Fedex are functional equivalents of a border. The defendant here shipped a package to Lebanon, and when it was randomly searched, was found to have false identifications. The defendant argued that the hubs were either a step away from the border and that reasonable suspicion was needed. The 9th reasons that such "jumping off" points are border equivalents, and affirms the convictions. The sentence is vacated in part due to conditions imposed on SR without basis (domestic violence counseling merely because the marriage had "strains.").

Tanner v. McDaniel, No. 06-15405 (7-13-07). The 9th (Tashima joined by Noonan and Callahan) affirm the denial of a writ alleging IAC on failure to consult regarding an appeal. The 9th does rule that Roe v. Flores-Ortega, 528 US 470 (2000), which requires consultation by an attorney with client regarding appeal, does not establish a new constitutional rule. However, on the merits here, there was no IAC given the issues of the voluntary plea, constitutional precedent, and the facts of the case.