Thursday, May 28, 2009

U.S. v. Jefferson, No. 08-30067 (5-26-09). The 4th amendment does not protect early delivery of mail. What is meant by that? Well, the defendant was expecting a postal package guaranteed to be delivered by 3:00 on April 7th. The package came in to the post office that morning, and the postal inspector was waiting for it. With a couple of hours left, a dog sniff alerted, a beeper warrant obtained, and the package delivered with minutes to spare. When the beeper beeped, an arrest ensued for possession with intent to distribute meth. The defendant argued that he had an interest in getting the mail as soon as it came in. "No," said the 9th (Beezer joined by Tallman and M. Smith). The interest only comes if the mail was late, past the "agreed upon" contractual time. If that occurred, then the government could not delay the mail, but would need reasonable suspicion. The 9th denied the motion to suppress. I guess while rain, snow, and sleet won't delay the mail, a postal inspector's hunch can, so long as it is before the contracted "next day delivery time." (Ed note: if one asks that the mail be delivered by a certain time or as soon as received, then the expectation might click in). This appeal also came up on a double jeopardy claim (there was a conditional plea). The first trial ended with a hung jury on the possession with intent and a conviction for possession of meth. However, the jury made clear in its verdict form, and in polling, that they did not acquit on the intent charge but could not reach a decision. The defendant also asked that the jury continue deliberations, and they still hung. There was no double jeopardy bar because there was not an implied or clear acquittal or conviction. So, the postman can ring twice.

U.S. v. Juvenile Female, No. 07-50549 (5-27-09). A Border Patrol agent pulled over a car close to the border, suspecting some nefarious drug activity. The driver took off, and and the agent chased. Another Border Patrol went to the car, where a juvenile passanger put up a ruckus, that led to a stabbing with a small knife. The juvenile was charged with juvenile delinquency for assault on a federal officer under 111. The 9th (D. Nelson joined by Pregerson and Thompson) held that assault with a dangerous weapon or resulting in bodily harm was a "crime of violence" for delinquency purposes. The 9th also held that there was jurisidiction because the Border Patrol agent was engaged in official duties; the agent could also be investigating customs offenses that are part of his border investigation / enforcement duties.

U.S. v. Mendoza-Zaragoza, No. 08-30130 (5-27-09). The 9th holds that in 1326 illegal reentry after deportation or removal cases, what is required in the indictment for an enhancement is the date of the removal. There is no requirement under Apprendi for the conviction to be listed or dated. The date of the removal is all that is required. Due process or fairness does not require the conviction. After all, the Rule 11 colloquy as to maximum penalties puts the defendant on notice.


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