U.S. v. Barnes, No. 11-30107 (4-18-13)(per curiam with Hawkins, McKeown, and Bea)

You know that a Miranda violation has to be pretty blatant to warrant a per curiam reversal of a drug conviction and suppression of the confession. The defendant here, while on probation, was suspected of engaging drug distribution, helped by a friendly CI. When the surveillance over the buy fizzled (the agents were late to the airport), the FBI decided to enlist the probation officer. In comes the defendant, thinking it is only a routine ho-hum visit, and then the hard interrogation by the agents, waiting in the room. No rights were read. The defendant talked, got his rights read, and confessed some more. The 9th found he was in custody (he was patted down and screened when he came in, which was never done previously), and he was not free to go. The Seibe two step was employed, and the 9th would have none of it.

U.S. v. Anguiano-Morfin, No. 11-50376 (04-18-13) (Fletcher with Rawlinson and Hellerstein, Sr. D.J. SDNY)

What is the mental state to make a false claim to US citizenship? Willful. So, here the defendant suffered from a delusion that he was a US citizen. Did he know that the representation was false? if not, the false claim was not willful. The jury instruction, which stated the theory of the case, was that the defendant genuinely, if mistakenly, believed he was a citizen because of a delusion. The instruction was not given, but should have been. However, there was no error because of a combination of the presented instructions and closing argument clearly presented the jury with the issue that the defendant's subjective belief was at issue. On the second issue, it was not plain error for the gov't to ask its expert about the veracity of the defendant.

Although in a losing cause, AFPD Zandra Lopez of the San Diego Defenders developed some good law.

U.S. v. McClendon, No. 12-30015 (04-19-13) (Gould with Fisher and Paez)

"Stop! In the name of the law" shouted the police. The defendant kept walking. He was eventually tackled, and a firearm was discovered nearby that the police said he discarded. The defendant was a prohibited possessor. He argued hat the gun should be suppressed because he was illegally seized. No, said the 9th, because he never submitted to the police. Once he failed to submit, or stop, due to the fact the police was suspicious of activities, he could not then argue that the stop was unreasonable. The 9th also held that the police illegal search of his backpack (containing another gun) in his car was illegal but it did not lead to a but-for arrest. The police were suspicious of the defendant apart from the backpack due to his activities of surveillance of a house, and a machete also in his car, and arguably a classic burglar disguise -- clothing and a black ski mask, although there was no snow on the ground. The police also found the backpack was attenuated.