U.S. v. Bassignani, No. 07-10453 (3-25-09). Defendant was suspected of getting child porn on his office computer. The investigators went to his place of work, and questioned him for over two hours in an office conference room. The question for the 9th was whether this was "in custody" because no Miranda warnings were given. The 9th (O'Scannlain joined by Gould) used the five factors test outlined in U.S. v. Kim, 292 F.3d 969 (9th Cir. 2002) that focused on (1) language used; (2) confrontation with evidence of guilt; (3) physical surroundings; (4) duration; and (5) degree of pressure to detain. The district court had suppressed, but the 9th, parsing facts and mixed questions, viewed the custody question as de novo, and taking the facts as they were, still found the interrogation to be "not in custody" although it was a close question. The 9th considered the tone appropriate and not hostile, a discussion of evidence with probing by the defendant, the office a familiar place, the duration long but not excessive, and the pressure to stay not overbearing. Dissenting, Bea takes the majority to task for ignoring the factual findings of the district court as to the custodial nature of the questioning, and the court's conclusions that were contrary to the 9th's. Bea would affirm.

U.S. v. Ferguson, No. 07-50096 (3-27-09). Defendant, facing multiple counts of child pornography, decided to defend himself. He had been found competent, but his bizarre behavior and decisions, and his complete silence during trial, raised questions as to whether he should be allowed to represent himself. Subsequent to the conviction, the Supremes in Indiana v. Edwards, 128 S.Ct. 2379 92008) held that a different standard of mental competency applies when considering a defendant's request for self-representation as opposed to whether he should be tried at all. The 9th affirms on other trial and sentencing issues, but remands, in light of Edwards, the self representation finding in light of Edwards.

U.S. v. Marguet-Pillado, No. 08-50130 (3-27-09). Defendant had a Mexican mother and an unknown biological father. However, Michael Marguet, an American citizen, subsequently registered the defendant as his child, so he and his mother, whom Michael wanted to marry, could immigrate. The father became a step-parent. Defendant was granted permanent residency status. Years later, Defendant was convicted of a violent felony (attempted murder and burglary), and was deported. He returned and was charged with illegal reentry. The 9th affirmed the district court's denial of defendant's derivative citizenship claim. There had to be a blood tie, or adoption, or marriage, and there was not in this case, despite an American citizen parent becoming a stepfather and accepting the child as his own. The 9th also found that the right to confrontation under Crawford was not violated with the admission of his application for residency completed by his stepfather for his son 30-odd years ago. The 9th did hold, however, that the admission of his Application in his "A" file under the public records exception to hearsay was error. The relevant information, his stepfather's declaration that the defendant was born in Mexico, and was a citizen of Mexico, fell outside the exception for public records. The government made no other argument for another hearsay exception. The error was prejudicial as it was the evidence for alienage. The conviction is vacated and remanded. The 9th did not find insufficient evidence because it could also consider improperly admitted evidence (see note 16).

Since this was a Fernandez opinion (joined by Goodwin and Paez), we get the words "surd" and "obnebulated" tucked in.

Congratulationss to AFPD Greg Murphy of the Federal Defenders of San Diego for the win.

U.S. v. Carter, No. 05-50303 (3-30-09). In a splintered decision, the 9th upheld multiple convictions for bank robbery, remanded to see if a gun was indeed "brandished," and upheld a 471 months sentence as reasonable and that the court had indeed followed procedure by giving reasons for the sentence, although brief and cursory. Defendant was convicted of several bank robberies. He argued, as to guilt, that the use of guns was not forseeable in his conspiracy. He had come in late to the discussion of guns, missed it, and said he was not aware of their use. The 9th held that the robbery involved force, and use of guns was forseeable. As for brandishing in one robbery, the court said he used the gun, but did not make explicit that the weapon was brandished. Thus, a remand was necessary. The opinion on parts I-III was authored by Tashima and joined by Bea and Ikuta. Tashima dissents from IV (to be discussed), and so Ikuta authored that part. In that part, the 9th held that the court's mentioning its consideration of factors, and explanation of the guidelines, complied with the Supremes in Rita and the 9th in Carty/Zavala. The mentioning, and skeleton discussion, seems to be enough. Tashima, dissenting, is aghast. He argues that the court seemed not to have recognized, or acknowledge, the defendant's arguments about over-representation of criminal history and other mitigation. Tashima would require greater engagement with the presented evidence, and an indication that the factors were weighed. Tashima is wary of script sentencing.