Tuesday, April 29, 2008

U.S. v. Arnold, No. 06-50581 (4-21-08). The 9th decides whether offices at LAX may examine the electronic contents of a passenger's laptop without reasonable suspicion. The district court said "no." The 9th (O'Scannlain joined by Smith and Mosman) reverse and permit the search. The defendant was returning from overseas and going through Customs. The Customs agent had him turn on his computer, where icons appeared titled "Kodak Memories" and "Kodak Pictures." These revealed nude photographs of nude women. A more thorough search revealed photos of child pornography. The district court suppressed, finding that search was without reasonable suspicion. The 9th overturned, holding that reasonable suspicion was not required at the border, that the computer was not damaged, and that the computer was not like a human mind, but closer to a closed container.

U.S. v. Shi, No. 06-10389 (4-24-08). A disgruntled sailor, demoted from cook to deckhand, and beaten, murdered the captain and first mate and seized control of the foreign vessel. The sailor was eventually overcome (after 2 days) and locked in a cabin. The ship then set sail to Hawaii for help. Intercepted by the Coast Guard (thinking they might be seeking to illegally land), the Coast Guard quickly ascertained what was going on, and took control of the defendant. The question is whether there is jurisdiction over this foreign vessel in international waters for purposes of prosecuting the defendant. The 9th (O'Scannlain) answers "aye aye." Under the statute 18:2280 (bet that is a rare one), the U.S. has obligation under the Maritime Safety Act, and stopping piracy and maintaining order is one of them. The defendant should have known that any nation would have sought to arrest him, and therefore, he was on notice (a nexus tie) that the U.S. could seize him. That was done here. There were also no Miranda violations nor illegal searches of bunks (a warrant was requested and received). The sentence was reasonable (a departure down to 36 years).
U.S. v. Aguila-Montes De Oca, No. 05-50170 (4-28-08). Defendant won the overly-broad categorical war, but lost his own modified battle when it came to determining, under the Guidelines, whether California's residential burglary statute was a crime of violence. The 9th has already held that the state burglary statute broadens the Guidelines' generic category of burglary because the entry need not be unlawful or unprivileged. Rodriguez-Rodriguez, 393 F.3d at 857. Left undecided, and for another day, was whether the statute, encompassing liability as an accessory after the fact, was overbroad. This would happen if aider and abettor liability stretched to cover an accessory. Unfortunately for the defendant, under a modified categorical approach, he had plead guilty to a count that had facts that admitted unlawfully entering a dwelling house. The offense was a crime of violence under the Guidelines, but only because the plea proved it.

U.S. v. Mara, No. 07-30102 (4-28-08). One can lose acceptance for continued criminal acts, even if unrelated to the plea of conviction. Here, defendant plead guilty to being a felon-in-possession. While awaiting sentencing, he got into a fight in jail. This altercation led the court to determine that the defendant had failed to accept responsibility, and so he lost the two points. The 9th had previously held that continued criminal conduct related to the offense plead to could lead to denial of acceptance; this goes a step further, and allows for denial even if the continued criminal conduct is different in nature, character or degree. The 9th aligns with eight of the nine circuits that have considered this. The only conflict is with the Sixth. See U.S. v. Morrison, 983 F.2d 730 (6th Cir. 1993).


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