U.S. v. Jaeger, No. 06-30621 (8-18-08). Let me not to the marriage of true minds admit impediments, but, said the court, you really should think about the Fifth Amendment consequences. The wife, who was going to testify on defendant's behalf, and who had entered into a plea agreement in the same conspiracy and was awaiting sentencing, then changed her mind. She spoke with her counsel (who was not there), and elected to take the Fifth. The defendant was convicted (324 mos) on meth and gun charges, and on appeal argues that the trial court improperly dissuaded his wife, and witness, from testifying, and so interfered with his right to present a defense. The 9th (Graber joined by Alarcon and Rawlison) affirmed, finding that the court's admonishment was "mild" and appropriate under the circumstances (i.e. your choice, but think about it, and talk to your lawyer).

U.S. v. Hernandez-Orellana, No. 06-50584 (8-20-08). The 9th (Tallman joined by O'Scannlain and Singleton) deal with U.S. v. Lopez, 484 F.3d 1186 (9th Cir. 2007) (en banc) and what acts render a defendant guilty of conspiracy charges even if there was no evidence the defendant actually smuggled an alien across the border. The 9th found that the defendants were guilty of aiding and abetting a conspiracy to bring aliens to the U.S. for financial gain because of her acts within the U.S. to further the scheme. However, the conviction for "bring to" counts under 1324 must be reversed because there was no presented evidence that the defendant transported the aliens after they were already in the U.S. Lopez rejected the "final destination" theory of conviction for a "place of arrival" theory. Here, the focus was on what happened after the aliens had been dropped off, hence the "bringing to" charges must be vacated.

U.S. v. Craighead, No. 07-10135 (8-21-08). When does in-home questioning by police become custodial for Miranda purposes. Surprisingly, there is little 9th Circuit precedent on this. Thus, this panel from the 9th (Bybee joined by Thomas and Block) do some Miranda housekeeping. Defendant was Air Force personnel stationed on an Air Force base when the FBI investigation (Limewire) led them to suspect he was possessing and trafficking child porn. A search warrant was issued and various law enforcement descended on his home. The police included FBI, Air Force detectives, Pima County detectives and defendant's ranking officer. The police were armed, in flak jackets, and with firearms unholstered. There were 8 in total. Two took defendant to a storage closet in his home for some privacy, stood before the door, said he was free to leave and then questioned him. The district court found this was not custodial. The 9th however, held that Miranda warnings should have been given and suppressed the statements. They did find that the search itself was lawful. In suppressing the statement, the 9th stressed the value the Constitution places on a home (litany of "house" rights in the Constitution) and the fact that Defendant really had no where to go, with his house crawling with law enforcement, in a confined space. The test is always fact intensive, but a court should consider the following factors: (1) the number of law enforcement personnel and whether they were armed; (2) whether the suspect was at any point restrained , either by physical force or by threats; (3) whether the suspect was isolated by others; and (4) whether the suspect was told he was free to leave. The opinion's note 3 lists other factors that other circuits considered, such as "strong-armed" or domineering presence; subterfuge and so forth. Here, the 9th also focused on that Defendant's sergeant was brought along for "moral support" for Defendant but was not permitted to be with him; the concern that Defendant felt with all the different agents swarming around, and his feeling that any agency could arrest him; the lack of access to a door in the small storage room, and the blocking of his exit.

This is a "go to" opinion for in-house questionings that are supposedly non-custodial. As the 9th pointed out, the cops could have read him his rights and be safe.

McMurtrey v. Ryan, No. 03-99002 (8-21-08). The 9th (Pregerson joined by W. Fletcher and Bybee) upholds the granting of relief to petitioner. A competency issue was raised in his ability to stand trial after shooting and killing several people. The state court denied the competency hearing, despite evidence of his memory problems, erratic behavior, and variety and quantity of medications. The failure to hold a hearing violated due process, and a competency hearing held thirteen years later was insufficient to cure the violation.