It's gotta be tough to be appointed to the Ninth Circuit.
Sure, there are the accolades and the robes and the people calling you "judge" and the like. But it's not all roses and honor.
Imagine, for example, that you're a new judge on the Ninth Circuit. Just appointed. You've never been a judge before, and are maybe the youngest (or second-youngest) on the court. Here you are, with people who will be your colleagues, and with whom you'll interact, for likely the rest of your natural life. There's an obvious incentive to get along with them early. Be friendly. Be jovial. Be collegial.
Let's further imagine that one of your very first panels is a criminal case in which everyone agrees to affirm the defendant's conviction for being a deported alien who returned to the United States. The opinion gets assigned to one of the other members of the panel -- someone who's been on the Ninth Circuit since literally you were a one-year old baby. The guy's got gravitas. He's way, way more experienced than you are.
That senior member of the panel writes an opinion, which is quickly joined by the second member of the panel -- another experienced Ninth Circuit judge. Again, you all agreed on the result beforehand. This guy is guilty, and we're going to affirm his conviction.
Your law clerk comes to you and presents you with the following hypothetical. Precedent, she says, clearly holds that the statute of limitations on the crime of being "found" in the United States starts running when the defendant presents himself to a state officer. So if, for example, a guy walks up to an ICE agent and says: "I'm here illegally, having been previously deported. Want to do something about it?", that starts the five-year statute of limitations for convicting the guy for being in the U.S. illegally. Can't just sit there and wait forever and then try to convict the guy.
But most cases aren't that straightforward. She then gives you two cases. One, she says -- but only one -- involves a dude who sufficiently "presents" himself to ICE to start the statute of limitations. You've got to decide which one that is. Here are the two cases:
(A) Defendant A gets deported from the U.S., sneaks back in, and then goes to ICE and files immigration papers under a fake name with virtually no truthful biographical facts about who he actually is in order to try to get a green card. However, his application also contains (as required) his fingerprints, and ICE has those fingerprints in a computer file somewhere. But the INS never actually matches the prints. Is Defendant A "found" in the U.S. as of the date he presented his false application under a fake name?
(B) Defendant B gets deported from the U.S., has his wife drive down to Tijuana and bring his green card, and then his wife and he drive up to the border station and present ICE with his green card in an attempt to gain entry. The green card has Defendant B's true name and all his relevant information, and if the ICE agent were to have run the green card in ICE's computer, the computer would have informed the agent that the green card is no longer valid since Defendant B had been deported. But the ICE agent takes the green card, looks at it a bit, hands it back to Defendant B, and waves him and his wife on through. Is Defendant B "found" in the U.S. as of the date he presented his true (but invalid) green card under his own name?
You cannot fight the hypothetical. One of these two situations has to involve a situation in which Defendant is, in fact, "found" in the U.S. sufficient to start the statute of limitations.
So which would you choose? And how confident are you that your choice is the right one?
If it's me, I'd say that B started the limitations period, rather than A. B involved a real (not fake) green card and the guy's actual name, whereas A involved a fake name and merely fingerprints. Doesn't seem like an especially close call. To me, B involves a much stronger case for starting the limitations period as opposed to A.
Here's the problem. Which is the actual problem in today's opinion. A is an actual case. It's a case from the Second Circuit, and one in which that court squarely held that the situation in A started the limitations period, since even though it was a fake name, the "true" fingerprints made it possible (even though it didn't actually happen) for ICE to find out the true facts.
You see the problem, right? If A starts the limitations period, then under that same reasoning, B should as well.
Now, there's an easy way to solve this problem. You're on the Ninth Circuit. That other case is from the Second. You can simply say that other opinion is wrong: that presenting false documents doesn't start the limitations period. And, on that basis, not follow it.
But your senior colleague, Judge Cliff Wallace, has written an opinion that, in part, says sort of that, saying that the Ninth Circuit is not '[bound] to accept this out of circuit case." But he then holds, at some length, that the present case is distinguishable in any event, since here, since the green card was an actual green card, arguing that this presentation "did not provide the authorities with either the information or the means with which to discover his immigration status," and since his "presentation of his invalid green card did not enable the government to ascertain that his entry was illegal, even in the exercise of diligence," the limitations period did not commence even under the potentially-persuasive Second Circuit precedent.
Now, look, you're young, but you weren't born yesterday. You suspect that Judge Wallace's opinion is just factually wrong. You suspect that when a guy crossing the border hands ICE a green card --a green card with the guy's true name on it, his A-number, and all of his relevant information, not only is the government "able" to use that information to discover that the guy's been previously deported, but it's actually incredibly easy. All you've got to do is to type that information in the computer -- either his name and/or his A-number -- and it'll bounce back in five seconds the fact that the guy's actually been deported and hence not allowed in the United States. Indeed, you suspect that if ICE doesn't have that capability -- if Judge Wallace is right that all it takes to illegally enter the U.S. is to present an expired, invalid green card, and there's nothing that ICE can do to catch you -- then ICE is totally incompetent, and what's the whole use of the fence (or even deporting people in the first place). You strongly suspect that it's a lot, lot easier (and faster) to run some guy's true name and A-number in a computer than it is to run the dude's fingerprints, and that a contrary argument seems, well, just not especially plausible.
But that's nonetheless what your new colleague has said in his published opinion.
Now, remember. You're the new guy on the block. You agree this guy's conviction should be affirmed. The limitations argument is only a small portion of the opinion. You're totally on board for the fact that the Second Circuit opinion isn't controlling, and if the opinion just said that, you'd be fine.
But it doesn't. Instead, it says something that's just not doctrinally or factually persuasive.
Do you nonetheless sign onto the opinion? Or do you write a brief concurrence joining the vast majority of the opinion but deciding instead not to follow the Second Circuit, rather than trying to distinguish that case on the basis of an argument that doesn't quite work?
If your name's John Owens, you do the former. Just sign on.
Now, maybe Judge Owens -- like Judge Schroeder (who's also on the panel) -- thinks that Judge Wallace's distinguishing argument makes sense. Maybe I'm the outlier, and everyone else in the world thinks that once you give ICE an invalid green card at the border with your true name and A-number, there's simply no way, as Judge Wallace asserts in his opinion, that "the government [can] ascertain that [your] entry was illegal, even in the exercise of diligence."
But I don't think so.
I think instead that there's a view, among many judges (and perhaps especially among new judges), that if it's "their opinion," and if you agree with the result, even if there's part of the opinion that seems silly and that you suspect is wrong, you sign on anyway.
I'm not sure that's what transpired here. Only Judge Owens knows, and he's not talking. (It's actually what I I hope transpired, because I think it's the most charitable interpretation of why someone would sign on to this part of the opinion, which I don't think is that powerful.)
Oh, one more thing. Did I mention who Judge Owens previously clerked for? That's right: Cliff Wallace.
I'm sure it isn't entirely rare for another judge on the panel to write part of an opinion that doesn't quite fit the facts and then the other judges have to figure out what to do. Sometimes you write a note (nowadays, an e-mail) and try to set 'em straight. Sometimes they agree, and edit the thing. Other times, they don't. And you have to decide what to do. Join the thing anyway, or write separately?
And sometimes you simply sign your name.