U.S. v. Al Nasser, No. 05-10466 (2-4-09). Three Border Patrol cars were on the side of the road, and two other vehicles were stopped. The agents were processing smuggled illegal aliens for arrest. The defendant drove up, and stopped. The officers were not going to stop any more cars because of the safety issue, but this car had stopped. An agent approached him, and assumed he was Mexican. He was, in fact, Iraqi. The agent looked in the car, and spied cowering individuals that he took to be illegal aliens. Was this a seizure? The 9th (Kleinfeld, Trott and N. Smith) hold "no" in this amended opinion (Judge Ferguson had been on the original panel, and had dissented. He died while the rehearing petition was pending). The focus is on whether the police had, in fact, intended to stop the individual. Here, the defendant had voluntarily stopped, and the police had not focused on him, or intended to stop him.
U.S. v. Alvarado-Martinez, No. 07-50492 (2-5-09). The 9th, in a per curiam opinion (Bright, Trott and Hawkins), holds that a court did not abuse its discretion finding, under a preponderance standard, that rap sheet listing four misdemeanors could be used to calculate criminal history under the guidelines. The files for the convictions had been destroyed. The rap sheet of the convictions had the case numbers, and the fingerprint matching made it reliable. The 9th limited its holding on the fact here that the fingerprint matching had led to the compilation of the rap sheet, and could be deemed reliable, even if an alias or different name had been used (fingerprint matching again). The 9th cited for support that a PSR using a rap sheet was sufficient to satisfy a preponderance of the evidence standard in Marin-Cuevas, 147 F.3d 889 (9th Cir. 1998).