Thursday, May 25, 2006

US v. Casch, No. 05-30270 (5-24-06). Venue is a constitutional right. It is stated in Art. III, and requires those charged with crimes to be tried where the crime occurred. The court here failed to give a jury instruction as to venue in a conspiracy, where the offenses took place in the Districts of Washington and Idaho. The defendant had objected, but the court said it was a legal matter. Pretty cut and dried, right? Well, the 9th acknowledged the right in the usual hortatory language, and then gave short shrift to the fact that it wasn't a structural error, and so it can be considered under a harmless standard. Under such a standard, the 9th concluded the evidence was overwhelming and it was conjecture that the jury may have split on where the conspiracy actually took place. Its another instance of winning the constitutional principle but losing the factual particulars.

US v. Howard, No. 05-10469 (5-25-06). The 9th (Bybee) holds that a probationer's/supervised releasee's diminished expectation of privacy, under the condition that he agree to a warrantless search, only applies to his residence, and not to another abode where he may spend some time. here, defendant was on SR. he was told not to stay away from his girlfriend, who also was a felon (one of the conditions was not to associate with known felons). Defendant was seemingly still seeing her. Information came in to the PO that the defendant was hanging around the apartment, hanging around with gang members, and he wasn't always at his stated residence. yet, his home looked lived in, and his work schedule was constantly changing. The 9th went through a detailed analysis of the various precedents, and concluded that a residence was strictly construed; mere staying over or visiting was not enough. The cases were compared and contrasted in detail, and provide a good checklist for comparison. Here, the evidence did not meet probable cause that the defendant lived at an unreported residence because (1) he appeared to still be living elsewhere; (2) the police did not see him at his girlfriend's in a month; (3) no credible witness saw him at the apartment some time before the search; (4) the defendant did not have a key to the apartment; and (5) no admission that he lived there. As a result, the evidence (a gun) was suppressed. In a grudging concurrence, Noonan noted that precedent, but thinks the 9th went astray. Katz gives privacy interests to people not solely places, and here, to Noonan, the strict construction is bad policy as a defendant on SR be given a "safe haven" to conduct crime under a higher standard so long as a companion is compliant.Congrats to FPD Franny Forsman and AFPD Shari Kaufman.

Raspberry v. Garcia, No. 03-15854 (5-25-06). The district court has no obligation to advise a pro se petitioner about potentially exhausted claims that the petitioner failed to include in his habeas petition. The 9th also finds that a successor petition did not relate back when the first was dismissed for unexhausted claims.


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