Wednesday, May 28, 2008

U.S. v. Fernandez, No. 06-50595 ( 5-27-08). Will an alias a day keep the wiretap away? "No," says the 9th. Here, the government got a wiretap on the defendant under one name. He then switched to a different name. The government recognized him as the same person, and in subsequent wiretap applications, used both names. The 9th (O'Scannlain joined by Goodwin and W. Fletcher) held that the government acted in good faith, and that the wiretap was proper. Any other holding would frustrate government investigation by prodding the drug suspects to keep switching names. What's in a name, anyway? The 9th also held that the guns found at his home had a connection to the far-reaching drug conspiracy.

U.S. v. Santana, No. 07-50190 (5-27-08). Defendant had a SR detainer awaiting him while in state custody. His state release day came and went, and he stayed in state custody for some time before he appeared in the district where the petition to revoke had been filed. It was 121 days, or four months. The district court expressed concern with the delay but found no prejudice. The 9th (Gibson joined by O'Scannlain and Graber) affirmed, holding that a motion for relief under due process required unreasonable delay and prejudice, and none was put forward here. Although no prejudice was required in Mendoza, with an eight-year delay between indictment and arrest, that differed in extent between four months and eight years, and there was a distinction between speedy trial rights for trial and for supervised release. The latter requires, at least within the four month range, prejudice. As for the argument that Apprendi requires proof in SR proceedings, the 9th shrugged and said "sorry" because supervised release is not governed by the Sixth Amendment right for jury.


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