U.S. v. Zhou, No. 10-50231 (5-10-12)(M. Smith with Kleinfeld and Sammartino, D.J.)

An infinite number of law clerks, conducting an infinite number of Westlaw searches, eventually would connect the Second Amendment, Leo Tolstoy and James Taylor in a paragraph search, but the odds are that the wait would be long.  Better would be to look up this opinion, where the amendment, author, and singer are used to signify the importance of "and."  And what is the Second Amendment, "War and Peace", and "Fire and Rain" doing?  Is this an opinion about firearms and intellectual property?  Nope.  The 9th deals with a HIPPA violation, and the knowledge required.  42 U.S.C. 1320(d) concerns violating access to a patient's records.  The misdemeanor offense requires that the information be obtained "knowingly and in violation of this part...."  The defendant was a health research assistant, who was let go, and subsequently accessed patient records.  He was charged.  He moved to dismiss the charge because it did not allege that the defendant knew that the statute prohibited him from obtaining health information.  The 9th held that the statute did not require specific intent; rather, the "knowingly" requirement referred to the fact of obtaining information, and the "and" then meant that such obtaining violated HIPPA.  The 9th goes through the statute, the language, and the precedent concerning "knowingly" followed by an "and".  The examples used on p. 5045 show the value of "and" (i.e. "keep bear arms," "War Peace" and "Fire Rain.").  Yes, a strange trio-query:  did each member of the panel pick one, or did the clerks weigh in?  In any event, why a Russian author?  And why does the opinion say that Taylor singing "Fire and Rain" without the "and" would have "confusingly crooned" the song?  Crooned?  Really?  Still, he's got a friend in the 9th, which shows how how sweet it is to be cited by them.

U.S. v. Vallee, No. 11-30131 (5-10-12)(Callahan with Hug and D. Nelson).

Does a judge have to sign a summons for a SR violation?  "No," said the 9th, because the court read and signed the petition, and ordered a summons be issued.   Here the defendant was oh-so-close to finishing out his SR term.  He was in the final month when he was arrested for drunk driving.  The order was issued four days before his term was to expire.  The defendant did not show for the hearing, and was arrested later, after his SR expired.  It was tolled, even though the court did not sign the summons, because the court did sign the petition and ordered the summons be issued.  The Fed. R. Crim. P. do not specifically state who must sign a SR warrant.  Rule 4 states that judges must sign summons on complaints; Rule 9 states that a clerk must sign summons on indictments.  Since Rule 9 allows for summons to be signed in some instances by clerks, it can be assumed that Congress, by requiring a court to sign a SR petition, does not require a judge's signature for a SR violation summons or warrant.  The 7th Cir. takes a similar approach.

Thomas v. Chappell, No. 09-99024 (5-10-12)(Graber with Bea; dissent by O'Scannlain).

"Bo did it!"  At least that is what petitioner claimed when prosecuted for two murders that occurred in 1985 in a homeless encampment near San Francisco bay.  The petitioner was last seen with the victims, had been traveling with them, had partied with them, and had a high powered rifle that matched the bullet wounds.  He also made some strange comments, and asked a friend to hold a rifle cleaning kit for him.  But, there was no motive, no direct witness evidence, the petitioner had reported the rifle stolen, and there was evidence that someone else (Bo) did it.  The problem was that defense counsel failed to find the witnesses that placed Bo at the scene, and having him make some comments that could be construed as guilty knowledge.  The state supreme court had found counsel ineffective, but held no prejudice.  The district court found prejudice and granted the writ.  The 9th affirmed, also holding that prejudice existed.  It was a close question at trial without the witnesses (5-day jury deliberation) and the 9th concluded that the state court constitutionally erred in not finding prejudice.  Dissenting, O'Scanlain argued that the majority made the case closer than it was, and that the evidence supported petitioner's guilt.

U.S. v. Hieng, No. 09-10401 (5-11-12)(Wallace with Bybee; concurrence by Berzon).

This weekend, if you are pulling weeds from your garden, reflect that you are engaged in a present sense impression.  How?  Well, according to the 9th, yanking up marijuana plants, and keeping a mental tally, is a present sense impression, because that is how we tick off things (cf one opinion, two lattes, three strikes?).  But wait, I am getting ahead of the opinion.  This case deals with marijuana cultivation of over 1,000 plants.  It also seemingly has a 1,001 evidence issues.  The defendant, when confronted, sputtered that he did not know the plants were growing in the vineyard (grapes of wrath they were not) because he was just a renter who spent nights on the property (it got dark out there).  He also gave some other statements that could be used against him (small plants do not smell).  He turned down a deal, after a proffer meeting, and went to trial.  Upon conviction, he got 10 years.  On appeal, he raised some interesting evidentiary and confrontation issues.  Back to the plants, and present sense impression, where he argued that the agent's testimony as to the number of plants (for the mandatory minimum) was hearsay.  The testimony was that the agents yanked or cut the plants, walking the rows, and kept a mental tally, which the agents reported to the agent in charge, who tallied them up, and wrote it down.  To come into evidence, the number of plants yanked and tallied had to meet the evidentiary exceptions.  Like some sort of legal "inception," the first level was the present sense impression  (lets see, one plant, two plants, three plants, etc) and then when given to the agent, it became his recorded present sense impression of their present sense impressions made while fresh in his mind.  His report was a recorded recollection (5082).  Berzon, in her concurrence, takes issue with this, fearing that the present sense impression was not so present, as one had to remember the count, and there was a period of time when "thought" entered into it (how many did I yank?  and why does it matter?).  She believes that the majority is stretching the exception, and points out that the parties nor the court thought it applied.  She would let it in under the reliability exception of FRE 807, excusing lack of pretrial notice because of the notice given in trial.  Expect to see this case cited whenever agents have numbers at stake.

Another interesting issue is the interplay between Crawford and evidence when it comes to interpreters.  In the matter of a defense statement, must the interpreter be available for confrontation?  After all, the defendant is there and it is his statement. The 9th, under the pre-Crawford Nazemian precedent, considers an interpreter a language conduit, and need not be subject to cross examination, unless the issue of factual inaccuracies come up, and then the interpreter is a declarent.  The majority carefully parses the issue, under a plain error review, and resolves that Nazemian remains binding, for now.  Berzon concurs in the admission, under plain error review, and because the interpreter was in court and could have been called.  However, Berzon cautions that an act of translation is an art, and much less rigorous than a lab report, such as in Bullcoming.  She believes this should resolved en banc, with, it seems, the defendant having the right to confront the interpreter.

The issues keep on coming in this case.  The next concerns the use of the defendant's proffer statements to impeach him.  The defendant did not object at trial, but argues now that the court sua sponte should have asked if he had waived his rights under Fed. R. Crim. P.  11(f) and  FRE 410.  The government did not have a written plea or proffer letter, but argued that in such a setting, the defendant would have waived as a condition.  The 9th lets it in, because that is the practice of getting such waivers, and there was no objection, and the court should not have a duty to sua sponte inquiry.  Still, a written proffer is the better practice.