Monday, September 17, 2018

          1.     US v. Peterson, No. 17-30084 (9-4-18)(Rayes w/Smith & Watford).

The 9th affirms a warrantless search of a backpack, and discovery of a handgun, under the “inevitable discovery” doctrine.  Although the defendant was arrested on misdemeanor warrants, and he could have posted bail, thus avoiding having the inventory search of the backpack, the district court found that the officer was going to book him on felony charges of obstruction or fleeing.  If so, the backpack would have been searched. Thus, concludes the 9th, discovery was inevitable.  The 9th does remand for resentencing.  The 9th holds that Washington’s first degree robbery statute is not a COV because it encompasses threats to property.  Lastly, the 9th holds that it was not error to add an enhancement for reckless endangerment because the defendant was acting out during transport to jail.  He violently kicked at the windows, caused concern they would shatter, and continued even after pepper spraying. The transport had to quickly cross multiple lanes of traffic so the defendant could be restrained.

The decision is here:

     2.      US v. Kechedzian, No. 16-50326 (9-4-18)(Fisher w/Watford & Friedland).

The 9th vacates convictions for unauthorized devices due to a prospective juror failing to state she could be impartial.  The juror had been a victim of social security fraud (her SSN number was stolen). She hemmed and hawed during voir dire, and could not explicitly state she could be fair, impartial, and lay aside her biases.  The district court, after an exchange where she said she would try to put aside her feelings, asked her to tell the court if she couldn’t. The juror subsequently did not affirmatively respond when the court asked the panel if anyone had problems with applying the burden of proof. On appeal, defendant argued implied and actual bias. The 9th discusses both, with implied bias having a higher standard and being more difficult to ascertain. Here, the 9th granted relief for actual bias, as the juror never stated she could put aside her bias and decide impartially.  This case is a good example of a court having to have jurors explicitly state they can be impartial.

          The decision is here:


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