Munoz Santos v. Thomas, No. 12-56506 (7-28-16)(en banc)(majority by Bybee; dissent by Callahan). In an en banc decision, the 9th held: "Evidence that a statement was obtained by coercion may be treated as 'explanatory' evidence that is admissible in an extradition hearing."

This extradition case concerned a request by Mexico for the petitioner (habeas). The petitioner alleged to have kidnapped and held hostage a family, with a resulting death. Witnesses gave incriminating statements; the witnesses then alleged that the statements were a product of torture. The evidence was credible.

Extradition requires a court to determine if essentially probable cause is met. A federal court cannot engage in a mini trial nor weigh and assess credibility. It can allow explanations that go to the meeting of the competency of evidence.

Here, suspects and witnesses presented credible evidence that statements were products of torture. The statements were not recantations, nor contradictory accounts (thus requiring credibility determinations). It is a question about questions.  The evidence as to torture explains, the 9th held, the evidence presented.  Under the Constitution, due process bars coerced statements.  Coerced statements are not voluntary and they are unreliable.  A court can properly consider this as to the competency of evidence presented and whether there is probable cause.

The case is remanded to determine if there is sufficient probable cause absent the coerced statements produced by torture.

Dissenting, Callahan, joined by Ikuta, argue that the majority opinion exceeds extradition's judicial review, goes against precedent, and threatens to lead to mini trials.

Congrats to AFPD Matt Larsen of the FPD Calif Central (Los Angeles).

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/07/28/12-56506.pdf

Editorial notes: (1). Footnote 1 has a lengthy explanation of Spanish surnames and the proper citing form.  (2) The Honorable Jay S. Bybee authored this opinion concerning the use of torture.

US v. Thomson, No. 13-50235 (7-28-16)(Bennett with Reinhardt and Wardlaw).  This is an appeal from a tax fraud case involving a tax preparer who filed false returns.  18 U.S.C. § 1546(a) makes it an offense to misuse visas, permits, and other immigration documents.  The 9th holds this statute does not apply to non-immigration documents, such as US passports. Thus, the two counts (out of 32) must be reversed.  The 9th also vacated the sentence and remanded because of guideline errors: the court erred in using the wrong guideline book (2011 rather than 2008); in using relevant conduct from another case, where there was no conviction, as the conduct was not sufficiently "related"; and in finding that tax returns were means of identification. The court did not write in the sophisticated means enhancement, and abuse of trust.

Congrats to AFPD Gail Ivens of the FPD Calif Central (Los Angeles).

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/07/28/13-50235.pdf