(Cross-posted from the C.D. Cal. Federal Public Defender Blog.)
In This Edition (to use bookmarks, first click blog post title):
A Brady Bunch. There was a lot of action in matters Brady this week, including the release of the Schuelke-Shields Report (about misconduct in the prosecution of the late Senator Ted Stevens) as well as some new proposed legislation (see Sausage Making, below). White Collar Crime Prof Blog has the shebang.
Like. "Unknown Tech Company Defies FBI in Mystery Surveillance Case," goes the headline to this story at Wired.
Neither Confirm Nor Deny. The Electronic Privacy Center wants to know whether the NSA has a cooperative research and development agreement with Google. The NSA's not telling.
Number of Federal Criminal Defendants Sets New Record. So say federal judiciary's caseload statistics for FY2011. U.S. Courts has a rundown noting that drug offenses "continued to be the ... most commonly prosecuted."
False Convictions at 17 Percent? The results of a random audit ordered in Virginia by Mark Warner (who was then governor) suggest that the rate might well be that high. See Dahlia Lithwick's article in Slate, here.
eBriefs. They're not just for breakfast anymore. Wait - that joke doesn't even make any sense. Better just get to the cases, then...
Top of the Ninth - 9th Cir. decisions released during the week.
• U.S. v. Ressam (en banc) (plurality) (22-year sentence for "Millennium Bomber" was substantively unreasonable, where unchallenged guideline range was 65 years to life, and district court failed to properly take account of horrific crimes and gave too much weight to defendant's cooperation, which defendant substantially undercut by subsequent recantation). UPDATE (3.19.12): Ninth Circuit Blog's analysis here.
• U.S. v. Toro-Barboza (evidence that defendant's knew there was over $10,000 in their car during border crossing was sufficient in convictions for 31 USC §5332 cash smuggling and §5324 failure to file reports) (jury instruction on §5324 properly conveyed substance of elements, and defense theory was reasonably covered) (§5324(c) and §5332 are multiplicitous but convictions on both does not violate double jeopardy) (government's disposal of box that contained bag of money and their deposit of money before it could be tested for prints did not violate due process) (prosecutor's statements at closing were not plain error, and prosecutor's acknowledge false statement did not require grant of new trial motion) (14-level enhancement under §2B1.1 loss table as incorporated by §2S1.3 was proper) (reduction for "minor role" was not required) (remanding to amend judgments to remove references to theory of liability under 31 USC §5324(b)(1) that government did not pursue).
• U.S. v. King (police lacked reasonable suspicion to search defendant's room but didn't need it because he was subject to suspicionless searches under probation condition) (concurring, Judge Graber urged en banc review on the latter issue).
• Phillips v. Ornoski (habeas) (aff'g and rev'g in part pre-AEDPA appeal) (denial of evidentiary hearings was not abuse of discretion) (counsel's "questionable" and "assuredly ill-advised" decision to pursue alibi defense - without investigating alternatives - was not IAC in light of Pinholster, overruling earlier holding) (though prosecutor's "deceptive ruse" regarding witness benefits violated Napue and Brady was not material to conviction, it was material to special circumstance finding, which was vacated).
• Anderson v. Holder (immigration) (final order of removal executed against a U.S. citizen was "final order of removal" within 8 U.S.C. §1252(a) (petitioner was entitled to derivative citizenship through natural father by legitimation, where father's paternity was established under Arizona's legitimacy statute) (legitimation does not require an affirmative act).
• U.S. v. Salceda (C.D. Cal.) (Snyder, J.) (suppressing computer search for exceeding scope of warrant's authorization). (H/T Orin Kerr.)
• U.S. v. Carreon-Ibarra (5th Cir.) (in gun possession case, plea was deficient where defendant had been told mandatory minimum was 5 years when it was 30, and where judge stated that in light of acknowledged misadvisement he considered defendant subject only to the 5-year minimum - then imposed 30).
• U.S. v. Griswold (W.D.N.Y.) (parent who doesn't know child's password doesn't have apparent authority to consent to search, rejecting Tenth Circuit's contrary approach in U.S. v. Andrus).
• U.S. v. Andrews (D. Mass.) (search warrant naming defendant at house did not permit general search of defendant away from premises).
The Week in Sausage Making. H.R. 347 (to "correct and simplify" 18 U.S.C. §1752, the "restricted building" statute) is now law. More on that at Salon. Measures introduced include S. 2188 (would set national standard for state-nonresident possession of concealed firearm); S. 2197 (Brady reform).
For the Bookworms - New books and scholarly articles of note.
• Note: "Baseline Framing in Sentencing," Daniel M. Isaacs, Yale L.J. 426 (2011) (SSRN) (argues that baseline framing, as in, e.g., using guideline ranges as a "starting point," will lead to sentences disproportionately clustered around the typical sentence in a typical crime baseline regime, and recommends a quasi-floor baseline as a best-approximation of Blackstone's dictum).
• "Hard Cases and Hard Data: Assessing Corpus Linguistics as an Empirical Path to Plain Meaning," Stephen C. Mouritsen, 13 Colum. Sci. & Tech. L. Rev. 156 (2012) (abstract|pdf) (argues that plain or ordinary meaning of terms in context is an empirical matter that can be quantified through corpus-based methods to provide a more secure way to evaluate intuitions about linguistic meaning).
• "Responding to the Challenges of Contextual Change and Legal Dynamism in Interpreting the Fourth Amendment," Donald A. Dripps, 81-3 Miss. L.J. 133 (2011) (SSRN) (argues for an intermediary "balance of advantages" approach to assessing original understanding of search-and-seizure law).
• "Post-Racialism and Searches Incident to Arrest," Frank Rudy Cooper, Ariz. St. L.J. (forthcoming) (SSRN) (argues that post-Gant doctrine only remedies the general problem of officer safety and doesn't address the problem of racial-profiling).
• "Virtual Curtilage: A Theory of Fourth Amendment Privacy in Public," Andrew Guthrie Ferguson, working paper (SSRN) (applies curtilage theory to Fourth Amendment protections covering persons, papers and effects, in part building off Jones).
• Death Watch Diary, Robert Towery (2012) (Amazon) (Towery chronicles the last 35 days of his life - up until the day of his execution).
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