Wednesday, January 31, 2007

US v. Ziegler, No. 05-30177 (1-30-07). For those of you reading this on a government- or employer-provided computer, do you think you have an expectation of privacy? You might in your office, to an extent, but if "big brother" said he could look into the computer, he can. That is the thrust of this case, which concerns an opinion filed on August 8, 2006, but which is withdrawn and this substituted. The 9th (O'Scannlain joined by Silverman and Gould) considers the search of an employee's computer by company managers acting, so they assumed, for law enforcement. They made copies of the employee's hard disk, where bad stuff was found. The 9th recognizes that an employee may have some expectation of privacy in an office, or in a computer that he alone controls, but if the computer is controlled by the employer, and the defendant has consented or agreed or knew the employer or third part could pry (oops, look), then the employer/third party could consent to search.

US v. Tatoyan, No. 05-50783 (1-30-07). If one takes money out of the country, and its more than $10,000 in cash, one had better declare it. Excuses that the defendant was concerned about other passengers knowing that thousands of dollars were hidden in clothes was unavailing. The 9th also rejected the defense of "good purposes" for the cash (benevolence), and various challenges to the statute and instruction. The fine of $100,000 is vacated, though, because under the statute prohibiting bulk cash smuggling, 31 USC 5332(b), only concerns imprisonment up to 5 years, and not fines.

US v. Perez, No. 06-30161 (1-31-07). After Booker, the 9th adopted a limited remand procedure under Ameline. The limited remand is to allow the district court to determine, with assistance of counsel, whether the sentence would have been different if the guidelines were not mandatory. However, when the 9th determines that the record is sufficient that but for the mandatory nature of the guidelines, there was a reasonable probability that the sentence would have been different, the sentence is vacated and remanded for a full sentencing. In this case, the 9th chastises the district court for conducting a limited remand Ameline analysis after the 9th had previously vacated and remanded for a full resentencing. A full resentencing means exactly that. The district court did not have the discretion not to have a resentencing. The 9th states that a harmless analysis doesn't cut it: the district court had to follow the remand and give a full resentencing. The 9th will not prejudge the outcome.

Congrats to AFPD John Rhodes, D. Mont. for the win.


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