Tuesday, August 04, 2009

U.S. v. Garcia-Villegas, No. 08-50503 (8-4-09). This is an appeal from a 1325 misdemeanor conviction for attempted entry. The defendant was seen hopping the fence. He subsequently gave a statement that he was an alien. The question for the 9th was whether mode-of-entry evidence corroborated a defendant's admission of alienage. In U.S. v. Hernandez, 105 F.3d 1330 (9th Cir. 1997), the 9th held that mode-of-entry evidence was insufficient to corroborate a defendant's admission. In this case, the 9th (Noonan joined by O'Scannlain) hold that Hernandez passed on any one piece of evidence being sufficient or not, but that it was to be taken as a whole. Here, the evidence of other witnesses as to mode-of-entry corroborated the admission. Graber, concurring, takes issue with the casting of Hernandez, stating instead that Hernandez should be read narrowly as only encompassing mode-of-entry evidence admitted by the defendant. In the case here, the other independent witnesses buttress the statement.

U.S. v. Reed, No. 06-50040 (8-4-09). The defendants here were convicted of meth conspiracy. The sentence for two of them was life (a lot of meth), so the stakes were high. The 9th affirmed the convictions and sentences. The 9th (N. Smith joined by Pregerson and Hall) held that the defendants' challenges to the wiretap evidence were unavailing. The 9th affirmed the findings that the need for wiretaps was meet, that the contents were sealed, and that the statute was followed. The defendants had argued that the wiretap was for one phone that was mostly used by someone else. The analogy was a warrant for one house where someone else actually lived. The 9th brushed aside this objection, holding that the government proved that the phone was used for drug transactions and that was what the statute required. The 9th also found that data apart from the conversations, such as date of the call and how long it lasted, did not fall under the "conversation" part of the statute.

U.S. v. Faire, No. 08-10448 (8-4-09). Park rangers were concerned with poaching at the Kings Canyon National park, and so established a roadblock to inquire, briefly, of motorists whether they had been hunting. Hunting is not permitted in the park. The defendant was stopped, and a strong odor of alcohol was smelled on his breath. He was charged with driving under the influence. The challenge was that the suspicionless stop triggered City of Indianapolis v. Edmond, 531 US 32 (2000). The 9th (Silverman joined by Clifton and M. Smith) held that the roadblock was fair game, and that the Edmond was off target because the roadblock was not for general crime control. A roadblock for general crime control was prohibited by Edmond; but a roadblock for specific purposes, such as sobriety in Sitz, or securing the border in Martinez-Fuerte, was permitted. The roadblock here was for the specific purpose of wildlife (think Bambi) protection, and there was a real problem or concern. The roadblock was also designed to address that concern, although the 9th goes a little far afield in saying that the roadblock was for "educational" purposes (hunting in the park is bad...and illegal) and because such stopping will catch poachers before they poach again. Finally, the stop was quick and focused. Moreover, motorists could bear this contact with rangers, as contact was not intrusive and could be expected if for a map or directions or for warnings.


Anonymous Anonymous said...

Two wrongs don't make a right. The only way to be morally correct...is to be morally correct. That means one must avoid being evil when attempting to make things better. The end emphatically does not justify the means.

The Right to Liberty is the fundamental basis of morality. The Right to Liberty is simply the right to do whatever does not violate the rights of others. To deny the validity of the Right to Liberty is to deny your own right to do anything whatsoever—including any right to have an opinion or present an argument.

The Right to Liberty is based on the optimistic assumption that whatever you want to do is morally correct, provided there is no compelling argument against it. Pessimistically assuming the inverse—that you have no right to do anything until you can prove that you do—instantly puts you in a catch-22 from which there is no escape: You wouldn't have the right to even think about how to prove you have any rights, let alone the right to present any proofs!

So we all either have the right to Liberty, or else we have no rights at all. There are no other alternatives.

Rights exist in order to resolve the ambiguities and logical conflicts that arise from a) the fact that there are more people in the world that just you, and b) the fact that other people also have the same, equal Right to Liberty that you have. A right resolves such logical conflicts and ambiguities, so that it is clear whose will rightfully prevails in a particular situation.

Here's the point I wish to make: The Right to Liberty means we have the right to try to make the world better. But it also means means we have the responsibility to ensure that the means we choose to do so does not violate the rights of others. The end does not justify the means.

Saturday, August 08, 2009 7:11:00 PM  

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