Tuesday, August 14, 2007

Womack v. Papa, No. 06-15069 (8-13-07). The 9th affirms a denial of an IAC claim from a Nevada state petitioner. He alleges that he received bad advice as his plea exposed him to be adjudicated a habitual criminal and receiving LWOP sentences. The 9th found that the state courts had adequate grounds to deny the IAC claim, holding that the state court record indicated he knew what he was doing and the evidence presented in post-conviction did not undermine the state courts' holdings.

US v. Seljan, No. 05-50236 (8-14-07). When sending letters abroad, the 9th decides, beware of writing wrongs. Here, the defendant sent Fed Ex packages to the Philippines. The packages were searched, which the 9th found permissible, because the clearing house was the functional equivalent of a border. A customs agent, acting under 31 USC 5371(b) (currency transfers) can search the full contents of any packages and smaller envelopes or wrapped items, looking for illegal currency sent abroad. He is also permitted to read personal correspondence when it is immediately apparent (through a quick scan, as here) that it contains obvious incriminating material. Here, the defendant sent packages to an 8-year old girl in the Philippines with sexually suggestive remarks and references. This lead to further searches and finally an arrest when the defendant was about to board a flight. The 9th (per curiam with Gould and Clifton and Pregerson for a part) upheld the search of the Fed Ex package, and two of the three (guess) upheld the reading of the letters because the letters were only quickly scanned at this "border," and the incriminating language was readily apparent from various phrases about body parts and ages. Pregerson, in dissent, argues that suspicionless search of a letter in the context of searching for currency violates the 4th Amendment. Pregerson notes that the agent could clearly see that it was an informal letter rather than anything that was dutiable. Pregerson also notes that obvious incriminating material, like child pornography or false social security cards, could be searched. But to allow a reading of personal correspondence without any suspicion goes too far. The majority's trumpeting of terrorism (that again) rings hollow because it was the US Mail that was being used, and risks unwarranted intrusion. Looking at paper is different from reading it.


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