Tuesday, May 18, 2021

1. US v. Nishie, No. 19-10405 (5-12-21)(Nelson w/Bybee; Schroeder concurring). This case deals with the Wartime Suspension of Limitations Act (WSLA). It arises from alleged fraud, bribery, kickbacks, and conspiracy in directing defense contracts to a Korean company. The appeal from dismissal of counts ends with a reversal, but not before the panel, in an issue of first impression, does grammar and statutory contortions. The contortions focus on the word “which” in a 187-word long sentence. The majority concludes that “which,” which restricts applicability, modifies contracts only with a nexus to a specified conflict, and thus a statute of limitations; the other offenses of fraud and property are suspended if there is authorized conflict somewhere. The concurrence would look to the amendment history: the contract category was enacted in 1944 and tied to the restrictive clause and then never amended. There is no need to fire off the statutory canons.

The decision is here:


2. US v. Brown, No. 19-50250 (5-12-21)(Collins w/Baldock & Berzon). The 9th reverses and remands the denial of a suppression motion under Terry. The officer contacted the defendant and others in a motel parking lot, suspecting nefarious activities. So far so good. The questioning was consensual. The defendant was seized though when the officer told him to stand up and turn around. Terry was still okay. However, the officer reached into the defendant’s pocket and pulled out a package of heroin. The 9th held this violated Terry and Sibron (Terry’s companion case) because there was not a pat down or frisk for weapons. The officer just searched a pocket, which exceeded the limited scope.

The decision is here:



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