Tuesday, November 28, 2017

US v. Robertson, No. 16-30178 (11-27-17)(Gould w/McKeown & Rothstein).

This is an interesting opinion regarding the reach of the Clean Water Act, how to discern a holding from a Supreme Court fractured opinion, a Circuit split as to the test, reconciling 9th precedent, and finally an affirmance of the conviction for discharging dredged materials into wetlands and a tributary.  There is more: the 9th holds that “waters of the United States” is not unconstitutionally vague and also finds that you can’t raise sufficiency of the evidence in a first hung jury in the second trial. The 9th finally finds no error in allowing expert testimony.

If you have a CWA case, this opinion is critical.  The 9th adopts Kennedy’s concurrence in Rapanos v. US, 547 US 715 (2006), which creates a significant nexus test between wetlands and traditionally understood navigable waters. The opinion discusses how the 9th treats precedent, other circuits, and a fractured Supreme Court.

Tough fight is put up by Michael Donahue of D. Mont. Defenders (Helena).

The decision is here:     



US v. Johnson, No. 16-10184 (11-27-17)(Tallman w/Siler & Bea).

The 9th holds that a parolee’s significantly diminished privacy interests allow a warrantless search of his cell phone. Riley v. California does not apply and neither does the 9th Cir’s decision in US v. Lara, 815 F.3d 605 (9th Cir 2016)(applying Riley to probationer’s cell phones). The 9th finds no error in the finding that the parolee’s aunt gave consent to search the apartment. There was also no Crawford violation, nor hearsay violation, as they were used to rebut a third party culpability defense.  The case was remanded for resentencing on the gov’t’s cross appeal as a prior armed robbery is a crime of violence.

The decision is here:



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