Wednesday, February 17, 2010

U.S. v. Norwood, No. 08-30050 (2-17-10) (M. Smith joined by Reavley and Tallman).
On remand from the Supremes for reconsideration in light of Melendez-Diaz (confrontation), the 9th again affirms the conviction and sentence. Defendant was charged with drug trafficking and possession of a firearm in furtherance of the drug trafficking. The 9th holds that the defendant's right of confrontation was violated at trial when the government introduced an affidavit from the state Department of Economic Security, which certified that no wages from defendant had been reported during 3 years. This was relevant because the defendant was found with close to $10,000 in cash (on person and in car) when arrested. Although the 9th found error, it was harmless because the error was not an element of the offense, but on a circumstantial inference that went to the cash. The 9th also found that the prosecutor's reference to the defendant in not explaining the testing of marijuana also found in the house was a fair response to the defense implication of misconduct. Even if the reference was error, it was cured by the sustaining of the defense counsel's objection and the curative instruction. The 9th also found there was sufficient evidence to support the gun conviction: it was in the same room as the drugs. The 9th also rejected a due process challenge to the crack mandatory sentence.

U.S. v. Borowy, No. 09-10064 (2-17-10) (Per Curiam: B. Fletcher, Canby, Graber).
Forgetting to reset or engage a feature that makes a computer secure from prying eyes does not lead to an expectation of privacy that affords suppression of evidence. Defendant was part of a file sharing service called LimeWire. A trolling FBI agent, using search words like "Lolitaguy" chanced upon the defendant's file sharing and noted several that were flagged for child pornography. He downloaded the files, discovered child porn, and got a search warrant. The 9th affirmed the denial of the motion to suppress, reasoning that the defendant's computer and files were open to the world through his failure to engage the security feature. He had used it, and then forgot to reset it later. The subjective intent did not rise to the objective expectation of privacy. The 9th also held that the plea was not invalid despite the fact that the plea colloquy under Rule 11 mis-stated the term of supervised release. At sentencing, the defendant was aware of the difference (lifetime supervision) and argued that his sentence should be lower because of it.


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