U.S. v. Baker, No. 10-10223 (9-20-11) (Graber with Silverman and Lynn, D.J.).

The 9th affirms the sentence on a misdemeanor possession conviction (a lesser included), and the condition of suspicionless searches, but reverses the condition for DNA collection. The district court exceeded its statutory authority in ordering it. In a concurrence, Graber notes the distinction in treatment of defendants on parole and probation. Defendants on probation have slightly greater expectations of privacy than parolees. The Supremes recognize this but the 9th continues to treat the two sentences the same. A probationer may not be subject to a suspicionless search as would a parolee under Knights. Grabber calls for an en banc to recognize the distinction.

U.S. v. Dugan, No. 08-10579 (9-20-11) (Graber with O'Scannlain and Bea).

The 9th rejects a Second Amendment challenge under Heller to the offense prohibiting an unlawful user or addict of controlled substances from possessing a firearm under 922(g)(3).

U.S. v. Ibarra-Pinot, No. 10-50341 (9-20-11) (Bolton, D.J., with Ikuta; concurrence by Kozinski).

The defendant argued that he should have gotten a duress defense instruction. He presented evidence of threats to him and his family that unless he drove drugs across the border, he or they would be hurt or killed. He also presented evidence that the threat would be carried out. However, the trial court found that he did not present evidence on the third element, that he did not have a reasonable opportunity to escape the harm. The 9th affirmed the court. In a comprehensive opinion on the duress defense, the 9th parses the evidence, and explains that the defendant was allowed to present evidence, but he failed to show that he could not reasonably have sought help from the police, or authorities. In a concurrence, Kozinski would have sidestepped the discussion whether the court could have precluded the defense before trial, which he finds a difficult issue.