Friday, December 01, 2006

US v. Kuchinski, No. 05-30607 (11-27-06). Cache as cache can? The 9th said "no" in the Deleted Temporary Internet Files or computer cache files context. A defendant may have pornographic images on his computer cache files but that should not count against him for guidelines purposes. The 9th (Fernandez, joined by Kozinski and district judge Carney) confront here pornography receipt and possession convictions and sentence. The main issue is whether images on the cache files count; the 9th explains how images get on these cache files, but does not necessarily mean that the defendant viewed them. A "cache and release" of images does not mean knowledge. The case is remanded for resentencing because of the guideline error.
On other issues, the 9th affirms the convictions. The defendant raised a number of constitutional separation of powers arguments, but the 9th held that failure to allow a conditional plea does not shake the doctrine to its core. The 9th also turns back a challenge to the PROTECT ACT's restriction of three judges on the Sentencing Commission (which supposedly does not perform -- gasp -- judicial functions).

This opinion was authored by Fernandez, so we get wordsand phrases such as "valetudinarian grasp", "gallied ", and "daedalian arguments."

US v. Lopez, No. 05-50433 (11-30-06). In Doyle v. Ohio, 426 US 610 (1976), the Supremes make clear "that silence will carry no penalty." Moreover, silence cannot be used to impeach the defendant's explanation. The Supremes, though, also note that a violation is cured if a court sustains a timely objection, gives a curative instruction, and tells the jury to disregard the question. Things get a bit dicey when the defendant raises a duress defense, and the prosecutor question post-arrest/pre-Miranda silence. Here, the defendant argued that he purposely came across the border to be arrested so as to avoid a drug dealer out to get him. The prosecutor's questions skipped back and forth between pre-Miranda and post-Miranda time frames. The defendant objected, but the court overruled, reasoning that it was pre-Miranda questions. Yet, this was not clear from the questions, and the agent was involved in both phases of the questioning. The 9th easily found error, and then just as easily concluded that it was harmless because the questions were relatively brief, and the focus was on the failure of the defendant to present himself to police err anyone else sooner than the arrest. The 9th also found no due process violation because some Doyle objections were sustained, and the 9th found no error in the jury instruction nor in sentencing.


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