Thursday, December 28, 2006

US v. Luong, No. 01-10468 (12-26-06). This concerns "roaming charges" in the context of wiretapping. 18 USC 2518(3) authorizes a judge to authorize interception of phone calls within the territorial jurisdiction of the court. What happens, though, if the phone is mobile ("Can you hear me now?") and the area code is outside the territorial jurisdiction. The defendant here had a cell phone with an E.D. Ca (Sacramento) number but was allegedly conducting criminal activities in the Northern District (San Francisco). The activities involved robberies of computers and heroin trafficking. The 9th, joining the other circuits, holds that a court has jurisdiction because the intercepted phone call was first heard by the government within the court's district. The case revolves around what constitutes "interception." A subsection defines interception as the "aural ...acquisition" but does not say where it has to be. The 9th interprets the statute as having the interception occur where the tapped phone is and where the law enforcement officers first overhear the call. This comports with the 2nd, 5th and 7th circuits.

US v. Lee, No. 05-10478 (12-27-06). Defendant was charged and convicted on counts of involuntary servitude in the District of Hawaii although the offense took place in America Samoa. In a jurisdictional and venue challenge, the defendant argued that jurisdiction was vested in America Samoa's court and also that venue was improper in Hawaii. The 9th held that Samoan jurisdiction does not trump federal jurisdiction, and that title 18 codes can still be prosecuted in federal courts. The American Samoan delegation of authority and constitution does not supplant federal jurisdiction. As for venue, American Samoa is still a territory and is not "listed" as a district under statute and, therefore, bringing the case in the District of Hawaii constituted proper venue.

US v. Sandoval-Mendoza, No. 04-10118 (12-27-06). This case presents two helpful holdings in the context of drug charge with the defense of entrapment. First, the district court erred in prohibiting defendant from discussing his cross examination with his lawyer during the overnight recess while the cross was still ongoing. Such a prohibition violated the Sixth Amendment right to counsel. The Supremes held as much in Geddes. The Supremes also held in Perry that a court could prohibit discussion of a cross during a short (15 minute) recess. The prohibition here, going only to the cross and not other testimony, still violated the Sixth because it was all intertwined. The 9th did not have to decide the issue of prejudice because the district court also abused its discretion in excluding expert testimony of defendant's medical doctors. The doctors would testify that the defendant had a tumor the size of an apricot next to his pituitary gland, and the tumor pressed on the frontal lobe and affected cognitive abilities and intelligence. The court's decision that this had nothing to do with entrapment was error, as well as the reasoning that it would take too long. The jury should have heard this, and will on remand.

US v. Baldrich, No. 05-50676 (12-27-06). The 9th holds that the "secret" sentencing recommendation of probation officers does not have to be disclosed under Fed R Crim P 32 so long as all the factual assertions are. There is also no constitutional due process violation. The 9th basically follows precedent (1985) and other circuits in so holding, reasoning that the recommendation is different from the facts asserted (really?) and that it is protected. Due process is not violated because all the facts are disclosed. The 9th also holds that the right to effective counsel is not violated by the third point of acceptance under 3E1.1(b) being contingent upon a government motion.

Editorial vent: The 9th's decision that disclosure of the probation recommendation is not required does track Rule 32 but fails to adequately assess the importance of the recommendation, or how inadequate just the disclosure of the facts are when it is the highlighting of the facts that makes the difference. The purpose of "confidentiality" came from a pre-guideline age, where probation officers might have had to supervise the same offender. Now, with probation greatly reduced, and separate presentence writers, this seems greatly reduced. Should the defendant not see all the information that is being used to punish him? Is that fair? What is gained from the secrecy? In those districts that allow disclosure, a better sentence results and the process is streamlined as many times the defendant agrees with the recommendation. As a policy matter, the recommendation should be disclosed.


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