U.S. v. Comprehensive Drug Testing, Inc., No. 05-10067 (8-26-09) (en banc). This is the en banc appeal related to the steroids in baseball litigation. The box score has a majority of this en banc (Kozinski writing) laying down new guidelines when it comes to search warrants for electronic information. The 9th dismisses the government's appeal of the quashing of a subpoena because it failed to appeal another order, and it was bound by issue preclusion. The 9th also held that Fed. R. Crim. P. 41 was an appropriate vehicle for seeking the return of property improperly seized. As for the new protocol, the 9th takes this case and uses it to extend and refine U.S. v. Tamura, 694 F.2d 591 (9th Cir. 1982), which concerned the procedure to be followed with documents that are intermingled with seizable materials. That case preceded the information/computer age. Under the new guidelines for searches of electronic data, (1) magistrates should insist that the government waive reliance upon the plain view doctrine in digital evidence cases; (2) segregation and redaction must be done by either specialized personnel or an independent third party. There must be screening; (3) warrants and affidavits must disclose the risks of destruction of information; (4) the government's search protocol must be designed to uncover only information for which it has probable cause, and only that information may be examined by case agents; and (5) the government must destroy or, if lawful, return non-responsive data, keeping the magistrate informed. These protocols will be the guides for searches under warrants. The dissents argue that the protocols are dicta, and that the majority did not need to lay down these lines when the case law should be allowed to develop.

U.S. v. Cardenas-Mendoza, No. 07-10553 (8-26-09). Is there life after death for Jenks? And, can death be harmless? The answers are "yes" and "yes." The defendant was charged with importation of meth across the border. The defense was "drugs? What drugs? I loaned my truck to 'Paco' and know nothing else." The agents give a different version, replete with nervousness, secret complicated compartments in the pick-up, and the defendant mentioning drugs first. One agent testified before the grand jury. Subsequently, the court reporter at the grand jury passed away and the tape for the testimony was missing. The court still let the agent testify because the government had acted in good faith. The 9th (Walker joined by Thomas and Paez) said this was an abuse of discretion. The agent's testimony was important, and his memory then was probably better than months later, when he was testifying from notes. The testimony should have been stricken. Still, the government was not at fault. As for prejudice, well, the 9th found it was harmless error because of the other circumstantial evidence, and testimony. The 9th also held that the defendant was not entitled to TECS hit notice because it was not material to the actual stop, and there was no prejudice in the prosecutor mentioning a prior bad act (prior use of the compartment) in the opening when it was the only mention and was limited.