This is a great case. The majority opinion by Judge Kozinski has an excellent and flowing analysis of the value of stare decisis that's itself valuable. That this precedential analysis persuades the en banc court to overrule a dozen or so prior Ninth Circuit cases is even more impressive. It's a very well-written piece.
The lineup of the judges is also interesting. The majority votes to reaffirm (and extend) Jewell and thus allows criminal convictions in a wide variety of situations in which the defendant might be said to deliberately "stay stupid" and not inquire further even though s/he suspects that s/he's may be carrying drugs. Because that's the holding, it's not surprising that all of the Reagan (1) and Bush II (3) appointees on the en banc panel sign on to the majority opinion. But so do four Clinton appointees (McKeown, Hawkins, Silverman and Tallman) and a Carter appointee (Schroeder). Alongside a Bush I appointee (Rymer) that makes 10.
I find it very interesting that the Carter and Clinton appointees who join the majority are all in border crime locations -- Schroeder, Hawkins and Silverman are in Phoenix, McKeown is in San Diego, and Tallman is in Seattle. Given the Jewell instructions are most often used in drug and immigrant smuggling cases, I can't help wonder whether that fact played a role in the lineup.
Also interesting -- and more proof that you can't always count the votes based upon who appointed the judge -- is that Judge Kleinfeld basically joins the dissent, although he formally concurs since he doesn't think that in the present case the error was plain (since the defendant didn't object). Judge Kleinfeld's opinion also raises some very good points: one of his best lines (though you gotta read the opinion to understand the context) is his argument that "someone driving his mother, a child of the sixties, to Thanksgiving weekend, and putting her suitcase in the trunk, should not have to open it and go through her clothes" in order to avoid being guilty of possession. Classic.
There's a lot here. And a lot that's important. So it's definitely worth a read. Especially if you're planning on crossing the border in a car that's not your own anytime soon.
