Monday, April 20, 2009

U.S. v. Felix, No. 07-50173 (4-13-09). One criminal history point. That is what this appeal is about. And that one point separated the defendant from getting relief by the opening of the safety valve. Proof of the point was a computer print-out. The 9th first held that the appeal was not waived even though the plea agreement had waiver language because the district court had twice told defendant he could appeal, and the government did not object. Thus, the defendant won the battle in getting to the 9th but lost the safety valve war. The 9th (Callahan joined by Hall and Silverman) then held that a computer print out sufficed for proof, especially because the defendant did not offer any counter argument except for proof. Moreover, the defendant shouldered the burden to show, once the computer printout was allowed, that his misdemeanor was expunged. He was unable to do so. As to the standard of proof used for the print-out, the extent of the sentence differential between a mandatory minimum and a safety valve was not so great as to trigger "clear and convincing" evidence standard. Lastly, the use of the print out was not in violation of Shepard.

U.S. v. Brown, No. 08-30040 (4-17-09). The 9th considers whether a consent to search a residence by a co-occupant was voluntary, and whether the consent was ineffectual because his permission should have been sought. The defendant was staying with friends. He had an outstanding warrant and an informant had told the police where he was. When the police came to arrest him, he was outside with Rishel, a co-occupant. Five or six police approached them with guns drawn, threw them down, handcuffed them, and placed the defendant in a police car. The police then released Rishel, and gave the key to her apartment back to her. She went there, and consented to a search, after asking an officer to hide his insignia. She also allowed a search of her bedroom. Guns were found, and defendant was charged with being a felon in possession. The district court denied suppression, finding the consent was voluntary. The 9th affirmed (Tallman joined by W. Fletcher and Gould). The 9th reasoned that Rishel was not in custody after being released, and was given time and distance to decide if the police could search. She made requests that were followed, and she was asked permission regarding her bedroom. As to whether she could agree to a search, it was an apartment that she was a co-occupant. Moreover, the defendant was not purposely taken away so he could not physically object. He was arrested on a warrant, and placed in a car pursuant to procedure and safety concerns. They did take a key from his pocket, but the police were under no obligation to ask him for consent then, nor to take him back to the apartment. The Supremes' decision in Randolph was not violated.
The NY Times, April 17, 2009, and other media, reports on the disclosure of the interrogation memos that outline the techniques to be used in the aftermath of Sept. 11 against senior operatives of Al Qaeda. Besides waterboarding, other treatment included keeping "detainees awake for up to 11 straight days, placing them in a dark, cramped box or putting insects into the box to exploit their fears." Passages that describe "forced nudity, the slamming of detainees into walls, prolonged sleep deprivation, and the dousing of detainees with water as cold as 41 degrees alternate with elaborate legal arguments concerning the international Convention Against Torture. "The present Director of National Intelligence" cautioned that the memos were written at a time when C.I.A. officers were frantically working to prevent "another terrorist attack." The NYT states that: "The first of the [interrogation] memos from August 2002 was signed by Jay S. Bybee, who oversaw the Office of Legal Counsel, and gave the C.I.A. its first detailed legal approval for waterboarding and other harsh treatment." The Honorable Jay S. Bybee now sits on the 9th Circuit Court of Appeals.


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