Monday, July 29, 2019

1. US v. Lindsay, No. 16-10349 (7-23-19)(Wallace w/N. Smith & Batts). The 9th affirms convictions for traveling abroad to have illicit noncommercial sex. The 9th rejects commerce clause jurisdictional challenges. The foreign commerce clause basis is not as rigid as the interstate commerce clause, and more expansive. After analysis of approaches, the 9th concludes that non-commercial sex with a minor abroad fairly relates to foreign commerce and that Congress acted within constitutional bounds when it enacted the non-commercial section of 2243(c).

As for other challenges, the 9th rejected statutory and jury instruction challenges concerning the purpose of travel and the belief of age of the defendant. The defendants had not objected to the instruction. Numerous hearsay issues were also found not to be an abuse of discretion or violate the right to present a defense. The evidence included text messages, extortion schemes, sex with other minors, and late disclosures.

The 9th remanded for resentencing on the government’s appeal. The district court should have enhanced for obstruction of justice.

The decision is here:

2. US v. Iwai, No. 18-10015 (Tallman w/N. Smith; dissent by Bybee). The 9th found a search to be unreasonable. However, under the totality of circumstances, exigent circumstance existed concerning the possibility of destruction of evidence and therefore a warrantless entry was allowed.

The search concerned a controlled delivery of meth to the defendant. However, the package went to the manager’s office and not to the unit. The agent called the defendant and told him that a package had been delivered. The defendant retrieved it and took it to the unit. The tracker went off two hours later.  The agents thought they still had no probable cause, and so went knocking on the door. The agent heard someone, detected movement, but no one answered. Thus, the agent entered to prevent destruction of the delivered meth.

To the majority, the police acted in an objective reasonable manner given the totality of circumstances. The district court found the agent to be credible as to his fear that the evidence was being destroyed based on the noises. Who are the appellate judges to second guess? Moreover, the agents need not have gotten an anticipatory warrant. It is not required. And once properly in, the subsequent consent to search was not tainted.

Dissenting, Bybee finds this an unreasonable search and seizure. The police had time to get two prior warrants, and conduct surveillance. Bybee faults them for not getting an anticipatory warrant; or getting a warrant once the package was delivered; and, in a closer question, lacked exigent circumstances, or had created those circumstances.

The decision is here:


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