U.S. v. Rosales, No. 05-30260 (2-13-08). This is an affirmance of a conspiracy and possession with intent convictions. The defendant argued that there was insufficient evidence for a jury to find that the conspiracy was for more than 500 grams or that he possessed with intent to distribute on a certain date. The 9th (Guilford joined by Kozinski and Fisher) didn't buy it, in finding that co-conspirators did, in fact, buy it. The opinion goes metaphoric, in describing the tapestry of evidence, with strands that have little meaning until the whole is woven, and warped, and so forth. (But if there is error, could one then say that the whole weave should unravel, and thus prejudice could be the slightest loose thread? Just a thought). The 9th did go through the wiretap, and the "code" of drugs and amounts to show that a jury could connect the dots. The 9th did find for the government in its cross appeal that an 841(b)(1)(B) mandatory sentence should apply because of a prior state drug conviction.

Larson v. Palmateer, No. 04-35465 (2-13-08). Petitioner murdered his father and step-mother. Petitioner went through three sets of counsel, when the state court court said "enough" and refused a fourth set. Petitioner went pro se with stand-by counsel. The 9th affirmed (Fisher joined by Berzon and Barziley), recognizing that the Sixth Amendment requires adequate counsel, but does not require a warm and fuzzy relationship. At trial, the state court committed various errors, such as shackeling petitioner, and then, two days into a six-day trial, telling the jury that the "leg shackles" were being removed because of a physical impairment. The federal courts thought it wrong that no findings were made as to why shackles were required, nor about the jury instruction, but harmless it was, as was the failure to exclude witnesses by the state court although requested by petitioner. The 9th excused it, under AEDPA deference, because there was no evidence that state witnesses "tailored" their testimony (it was a day for swing and weaving metaphors. See above).

Anderson v. Terhune, No. 04-17237 (2-15-08) (en banc). "I take the Fifth!" So, is that a request for Beethoven's symphony at a record store? Is it a request for a bottle at a package store? Or is it an invocation of the right to silence. The 9th, in an en banc decision, forcefully holds that a defendant who states "Take the Fifth" wants to stop the questioning. This is a state case (California) where the petitioner was suspected of murder. He was questioned for a number of hours in custody (he had been arrested on a parole violation before the interrogation started) and although he tried to stop the questioning by invocating, the police refused to be daunted. The state courts held that the statement "take the Fifth" was ambiguous and that efforts to clarify resulted in a waiver. Reviewing en banc, the 9th (McKeown) found that the statement "I Take the Fifth" was emphatically an invocation. The 9th stressed that anything else would be a mockery and undermined the intent of Miranda and Dickerson. Under AEDPA, the 9th concluded that the state court's findings were unreasonable and that the Supremes had articulated the test which the courts failed to follow. In a concurrence, Silverman, joined by Rawlison, parse the statement a bit. The concurrence would find that the statement "take the Fifth" was somewhat ambiguous because it may have meant a subject matter (drugs) as opposed to murder, or a different context. The officer could clarify but overstepped the bounds when the questioning continued. Bea concurred and dissent, finding that a waiver had occurred after the statement (although there was a mysterious "turning off the tape recorder). Dissenting. Tallman (joined by Callahan) would find that the statement was ambiguous. It is a strange dissent that in arguing the police were unclear what the petitioner kept asking, turns precedent on its head. For example, Tallman cites Davis as allowing officers to clear up ambiguities, but that opinion also states (Souter) that the invocation requires no specific magical words, and the articulation of an Oxford Don was not necessary. Tallman's dissent would clearly give a blank check to state courts under AEDPA unless there was an exact, down to the very phrase, Supreme Court case on point.

This is an important decision as to ambiguity and on invocation.

U.S. v. Hir, No. 07-10500 (2-15-08). The 9th (Reinhardt joined by Goodwin and W. Fletcher) reviews the decision to hold an American citizen charged with aiding Filipino terrorists as a danger. The 9th holds that the government had carried the persuasion that the defendant was a danger, looking to the types of aid he allegedly had given (communications, firearm accessories, "contacts," and even phones that could be used in explosives). The case turns on "danger to the community." Is the community the judicial district (N.D. Ca)? Is it the United States? Can it be a foreign community? The 9th does not come out with a rule. The community is not just the judicial district; and it can be wider. Under these facts, the community can be considered the Philippines, and the type and extent of defendant's ties to his brother's terrorist organization, with the presented evidence, satisfies the danger analysis. Moreover, there are no conditions that could assuage this danger as presented. This is an opinion, although coming out for detention, that has good analysis as to how danger can be mitigated. The district court had found that the defendant's presence could be assured by conditions.