Lucero v. Holland, No. 15-16111 (8-31-18)(Berzon w/Bea & Berg).

This case considers whether the Sixth Amendment Confrontation Clause rights protected in Bruton extend to statements that are nontestimonial, and the impact of Crawford. The 9^th, affirming the denial of the petitioner’s habeas claim as to Bruton, holds that here, the codefendant’s statement was nontestimonial and so not within the confrontation clause’s protection under Crawford, and so the Bruton protections concerning the introduction of statements by nontestifying codefendants do not apply.

The petitioner here was convicted of premeditated attempted murder, possession of a shank in jail, and participation in a street gang. Evidence of a “prison note” found on a codefendant, and entered only against the codefendant, with a limiting instruction, did not violate Bruton because it was not a product of police questioning or testimony. The note was meant to be kept hidden. The protections of Bruton were not violated with nontestimonial evidence as defined by Crawford.

The 9^th did reverse the conviction for possession of a shank in jail.  There was insufficient evidence, even in the light most favorable to the prosecution. The record was devoid of petitioner’s possession.

The decision is here:

 
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/31/15-16111.pdf

 

2. US v. Raygoza-Garcia, No. 16-50490 (8-31-18)(Murgia w/Gould & Zouhary; concurrence by Murgia and Zouhary).

The 9^th affirms the denial of a motion to suppress narcotics. The Border Patrol found the drugs in the defendant’s vehicle when the car was stopped, on a roving border patrol, for reasonable suspicion. The 9^th found reasonable suspicion, although it was a close call, and the 9^th, in its concurrence, expressed concern about some of the factors.

The Border Patrol stopped the defendant’s car 70 miles heading north of the border on I-15. The Border Patrol noted the car had crossed the border several times that month (but was clean), there was a different driver now, the car slowed down in traffic when the patrol car approached, the car had Baja plates, the driver sat rigid, and the car had a single key with no keychain (although later that changed to a key chain). The 9^th, following Valdes-Vega, 738 F.3d 1074 (9^th Cir. 2013)(en banc) reviewed de novo, but gave “due weight” to the police agents’ and courts inferences drawn from facts.  The 9^th found sufficient indicia to support reasonable suspicion.

However, in the concurrence, the 9^th expressed concern about innocent conduct that may be used to support reasonable suspicion in and of itself.  This includes ethnicity, driving in traffic, and presence of police patrol vehicles. This concurrence warned that innocuous conduct cannot be used alone or predominately. There must be other factors.

The 9^th also affirmed the denial of the defendant’s request to have the court take judicial notice of other evidence of Border Patrol stops.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/08/31/16-50490.pdf