Monday, January 25, 2010

U.S. v. Aguirre-Ganceda, No. 08-35696 (1-19-10). The 9th dismisses a 2255 motion as untimely because it was filed more than a year after the Supreme Court denied certiorari. The petitioner argued that the time should start running not from the denial of cert, but from the denial of his subsequent petition for rehearing. The 9th (Beezer joined by Gould and Tallman) holds that the Supreme Court was clear that time starts running with the denial of cert or the time for filing cert expires. The 9th also joins seven other circuits which have so ruled, looking at Supreme Court Rule 16.3. The 9th also holds that the petitioner has not demonstrated extraordinary circumstances to toll the statute.

U.S. v. Palos-Marquez, No. 08-50498 (1-19-10). UPS does more than deliver packages; its drivers can also provide "tips" to effectuate reasonable suspicion stops. Here, a pick-up truck passed a UPS truck going "faster than usual." The UPS driver gestured to an oncoming Border Patrol agent car. The agent took the gesture, combined it with the area's connection with alien smuggling, erratic driving, and the high rate of speed, to suspect that the pick-up might be smuggling. The agent radioed ahead and, before the truck was stopped, the occupants appeared "nervous and shaky." The truck was stopped and aliens were found. Can this unidentified tip with other facts amount to reasonable suspicion? "Yes," said the 9th. Ikuta, joined by Schroeder and Berzon, recognized that an unindented person can tip-off the police if the facts are reliable; a face-to-face encounter strengthens the reliability analysis because the tipster puts himself forward to be identified and risks losing anonymity, and his demeanor can be viewed. The UPS driver here presented both himself, and was observed. The UPS driver could easily be identified. The tip displayed a significant indicia of reliability that, combined with other factors, went to forming a reasonable suspicion.

Chaffer v. Propser, No. 07-16853 (1-19-10). In a per curiam AEDPA decision, the 9th again examines California's indeterminate timeliness rule. Under the state's rule, as long as the prisoner files a petition for review within a reasonable time, the petitioner can count as pending the time between the lower court reaching an adverse decision and the day he files a petition in a higher court. This pending time is added to the one year limit. What is reasonable? The petitioner had spans of 115 days and 101 days. That was not reasonable, the 9th writes, because this was "substantially longer" than the 30 to 60 days most states allow for the filing of petitions. The petitioner did not explain why the time took longer. He also cannot meet the extraordinary circumstances to trigger equitable tolling. His explanation that his prison library was missing reporters, and inmate law helpers were transferred, was met with a shrug by the court, stating that those "vicissitudes" of prison life were hardly "extraordinary." The entrusting of his file to fellow inmates to assist him was at his peril, and he did not specifically point to any document he really needed. Petitioner also failed to show his diligence. For these reasons, judgment of the district court dismissing the petition is affirmed. Petitioner, by the way, had received a life sentence.

U.S. v. Green, No. 08-10149 (1-22-10). The prosecutors convicted the defendant, a school teacher for 30 years, of masterminding a fraud scheme that bilked the government of $60 million. The scheme took advantage of a FCC program that funds technology projects in schools. Basically, she rigged bids. She arranged for vendors to bid on services to supply IT equipment to schools. The bids were high enough that the schools did not have to fork over their required payments. The bidders did not mind inflating their bids because they were assured of the job. The equipment lists were altered and the actual amounts hid to avoid auditing or inquiring by the funding agency. Eventually this all came crashing down. The defendant argued that she was just facilitating the grants and providing IT as was intended. Convicted of all counts, the court sentenced her to 90 months. On appeal, the 9th affirmed the convictions and sentences. Tashima, joined by Rymer and Adelman, D.J., discussed whether a wire fraud had to violate a specific law, federal, or state. Going through the statutes, the 9th was surprised to find a paucity of decisions on the point, but reasoned that wire fraud was a separate offense, and that one could break the law without breaking a specific rule or regulation of the agency. The 9th did find error in the jury instruction that made her vicariously liable to acts that were foreseeable to her co-defendants without narrowing the focus to her foreseeability (as in conspiracy cases). The error was harmless, though, because the evidence was overwhelming. Lastly, the 9th found the sentence was reasonable.


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