Two AFPD wins:
U.S. v. Bustamante, No. 11-50075 (8-7-12) (B. Fletcher with Wardlaw; dissent by Mendez, D.J., E.D. Ca.).
An affidavit filed from the Philippines in 1975 purporting to substitute for an original or actual birth certificate stating that the defendant was born in the Philippines runs afoul of the Confrontation Clause. This was not a foreign document or an administrative record, but had been prepared specifically for an investigation by the Air Force into the defendant's citizenship (he served in that branch and was honorably discharged). In this prosecution for illegal re-entry and false statements, the affidavit was key, and the bedrock principles of Crawford and Confrontation required cross examination. The government's case was strong, having other evidence of his birth in the Philippines, but this went to the key issue. Dissenting, Mendez would find a confrontation violation but, in light of the government's case, would hold it harmless.
Congratulations to AFPD Davina Chen, FPD C.D. Ca. (Los Angeles).
U.S. v. Turner, No. 11-10038 (8-7-12) (Mckeown with Noonan; dissent by N. Smith).
Be careful what you wish for. This applies to the government, who moved for civil commitment of the defendant after he completed his criminal sentence. He waited almost five years for a hearing, and when he did get it, the court held in his favor, holding that the government had not proved he was a danger. In the meantime, he had moved for termination of his SR. The 9th held that in fact his SR was terminated, because he was not being held criminally, but under a civil statute. The 9th examined various statutory provisions, defining imprisonment and SR, and also applied the rule of lenity. The crux was that the confinement was civil in nature. Dissenting, Smith argued that labeling confinement civil or criminal did not remove the fact that he was held in custody for that time, and to characterize the period as not imprisonment is error. Of course he adds what a wonderful thing SR is, allowing an integration into society, and the lack of such a period does a great disservice. Still, he is uneasy with characterizing being held in custody under Adam Walsh as not imprisonment.
Congratulations to AFPD David Galloway, FPD E.D. Ca. (Sacramento).