U.S. v. Seljan, No. 05-50236 (10-23-08) (en banc). The short holding: letters can be read at POEs. This case involved border agents at an airport checking a FedEx package for currency. Letters were opened, some with small currency, and a few lines of the letter were scanned that indicated an interest in little girls. This lead to further investigation, and an eventual prosecution and conviction. The 9th (Clifton) allows such searches, and finds them reasonable given the currency requirements, and the so-called reasonableness of the plain view doctrine. A concurrence by Callahan would abandon any test for reasonableness, and allow everything to be read at the border. Kozinski dissents, arguing that the Founders valued thought and this permitting of perusal violates the spirit and form of the 4th amendment.

U.S. v. Flander, No. 07-30251 (10-23-08). This is an appeal from a dismissal of a conspiracy count to violate RICO for trafficking in contraband cigarettes on the Yakima Reservation. The 9th in U.S. v. Smiskin, 487 F.3d 1260 (9th Cir. 2007) held that the contraband cigarette trafficking act violated the Yakima Treaty of 1855 regarding trade. The defendant here, who had plead, moved to withdraw and the court granted it and dismissed the charge. The 9th (Tashima joined by Reinhardt and McKeown) reversed, because RICO is general jurisdiction, and trumps the treaty given that acts occurred outside the Reservation and amongst non-Indians.

Styers v. Schriro, No. 07-99003 (10-23-08). The 9th (per curiam) vacates and remands for constitutional error in that the state supreme court (Arizona) erred in conducting its proportionality review because it did not consider all mitigating evidence.