Tuesday, March 09, 2010

U.S. v. Arias-Ordonez, No. 08-10259 (3-8-10) (Schroeder with Berzon and Shadur, D.J.). The defendant was mislead and misinformed by the government as to his administrative remedies for a relatively minor misdemeanor offense of possession. As the opinion states:

This government appeal arises in the context of an apparently routine prosecution for re-entry after removal under 8 U.S.C. § 1326 that turned out to be anything but routine. The alien did everything he was instructed to do to effectuate his removal, after it had been ordered in absentia. He even sent his mother to report for removal in his place while he obtained proper identification. But the order instructing him to report for removal misinformed him that he had no administrative remedies and he was never told that he had a right to re-open to seek voluntary departure. The government does not contest the district court’s ruling that the flaws in the underlying removal prejudiced the alien. The government argues, however, that the subsequent summary reinstatements of the flawed removal can support the criminal indictment for illegal re-entry. We think not and affirm the district court’s dismissal of the indictment.
The 9th makes clear that the original removal order was flawed because of the government's prejudicial and affirmative misleading of the defendant. The seven subsequent reinstatements of the removal could not provide an independent basis because they reinstated the removal that had not complied with due process.

Congratulations to AFPD Elizabeth Falk, N.D. Ca. FPD (San Francisco) for the win.
U.S. v. Cha, No. 09-10147 (3-9-10) (Beezer with Graber and Fisher). The 9th holds that a 26.5 hour seizure of a house was constitutionally unreasonable, and the evidence must be suppressed. In Guam, the defendants were investigated and the wife was arrested on charges of sex trafficking, conspiracy, and travel for prostitution for running a brothel. The police caught wind of the activities when they investigated a report that women were being held against their will. The investigation led to due process, and Song Cha was arrested and taken to the police station. The house was seized. The husband (and later co-defendant) was not allowed back in. Over the next day, the police leisurely prepared the application for warrant, taking their time and not displaying any rush. In the meantime, the husband was barred for hours from getting his medication, and then only with an escort. He had no place to go. He called his lawyer, who was also unable to get the police to allow him back in. The 9th agreed with the district court that the seizure was too long. Although there was probable cause, the police had no other reason to excuse such a delay. The 9th looked at the systematic failure of the police to prepare the warrant quickly, and described the police conduct as systematically unreasonable and reckless. Herring does not excuse the actions, because that was a one-time negligent act of not checking if the warrant was quashed, while here, the police conduct was sufficiently culpable to warrant suppression. Although probable cause did exist before the seizure, an unreasonable seizure can lead to suppression for deterrence, and that was the case here.

U.S. v. Molina, no. 09-10066 (3-8-10) (Hug with Wallace and Clifton). The 9th affirmed the admission of hearsay as a result of stipulation. The defendant was charged with alien smuggling. He had counsel, and entered into a plea with a stipulation that the agents could offer hearsay as to what mat-wits stated, and that the mat-wits could be released. The defendant entered into a plea, and was sentenced, only to protest after pronouncement that he had "not done that much" and asserted a defense of duress. The plea and sentence were vacated and the case set for trial. At trial, the defendant was convicted, with the evidence coming in through the agents of what the mat-wits said about the defendant's role. On appeal, the 9th affirmed the convictions, reasoning that the defendant had counsel, and had voluntarily entered into the agreement, with full understanding. He could not receive the windfall of entering into a stipulation, and once the mat-wits were gone, of backing out.

Rhoads v. Henry, No. 07-99203, 07-99022, 07-35808 (3-8-10) (Rymer with Gould and Bybee). The 9th affirmed the denial of the petition of these two capital petitions, and one non-capital petition. The 9th found no Brady violations, no Miranda violations, and no IAC as to mitigation.


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