Thursday, September 07, 2017

U.S. v. Del Mundo Faagai (9th Cir. - Sept. 7, 2017)

It's a natural human tendency to become more persuaded over time about the validity of your own articulated beliefs.  Not everyone does it.  But lots of people do.  The reality is that as time passes, people start believing their own bull.  A lot.

It happens to regular people.  It happens to lawyers.  (Which explains in part why litigators often overestimate their probability of success.)  And it happens to judges.

Once initially seemed like the "right" conclusion to you over time becomes "obvious" and then "crystal clear" and then "so undisputably true that only a moron could possibly disagree."

And if you're a judge -- especially one writing a dissent -- that evolution sometimes affects the ultimate tone and content of your opinion.

Those are some of the thoughts when I read Judge Kozinski's dissent from today's Ninth Circuit opinion.

It's not that Judge Kozinski doesn't have a point.  He definitely does.  He might even be right.  It's certainly not crystal clear that there's probable cause to believe that the defendant here would have some drugs in his car.  Sure, there's some prior (recent) history of drugs, and some suspicious stuff, and a lot of talk on the wiretaps that sounds a bit weird and might be code for a drug deal.  But there may well be an innocent explanation for all this stuff as well.  Which Judge Kozinski spells out at length.

So I could definitely see someone coming to Judge Kozinski's conclusion.  The quantum of proof here may not meet the standard for probable cause.

But here's the thing:  It might not meeet that standard, but it totally might as well.  That's what two neutral judges on the panel think, after all.  And, as I read the competing opinions, I can see where the majority is coming from.  There's definitely stuff in there that's suspicious.

But not to Judge Kozinski.  He admits that probable cause "is not a high standard," but says that the government "came nowhere close to meeting it here."  And the tone and content of his dissent is very much consistent with that expressed view.  That this is a totally easy case.

Except it's not.  Reasonable minds can differ.  If the government's evidence didn't show probable cause, I gotta say, at a minimum, it at least came close.  As I read the facts, there's definitely stuff that's suspicious there.  That makes you think that, yeah, they may well be talking about doing a drug deal.  Notwithstanding the fact that I definitely agree that someone reviewing those facts would in no way, shape or form be certain that they were doing a drug deal, since the evidence was indeed subject to multiple reasonable interpretations.

Judge Kozinski does a great job parsing out the innocent explanations for the evidence that the government was able to identify.  He'd have been a great defense attorney.  But his pursuit of those innocent explanations blinds him, in my view, to arguments he makes that just aren't that persuasive.  In the vernacular, it looks like he just starts strongly believing his own bull.  (And, yes, I know that there are another four letters that often conclude that final word.)

I'll mention just one example.  The two alleged conspirators talk about setting up a meet to shop for some "food".  The majority (and government) think that "food" is a code word for drugs, and Judge Kozinski thinks it's a code word for . . . food.  So they arrange to meet at a particular Costco.  But that Costco is a full half hour away from their location, and there's a much closer Costco nearby.  To me (and the majority), that seems weird.  Suspicious, even -- at least in the context of the other evidence.

But that fact doesn't bother Judge Kozinski at all.  He says that not all Costco's are the same, and says that it would make sense to meet at the farther-away Costco because it's relatively newer and also has a fresh deli.

Is that possible?  Sure.  Maybe.  That's possible.  But the guys don't mention the deli, don't talk about it being newer, and don't give any reason at all why they're chosing that one over the closer one.  With all due respect to Judge Kozinski, that's unusual.   If you're really just shopping for actual "food," you usually don't inexplicably drive half an hour out of your way to a Costco when there's a much closer one nearer.  Because, yes, they're all different, but they're also quite similar.

Let's put it this way.  If my wife -- or, I imagine, Judge Kozinski's wife -- said she was going to shop for some food at Costco, and then mentioned that she was going to the Costco that was 40 minutes way from us (rather than the one 10 minutes away), wouldn't that seem at least a little strange?  At least enough to say, "Hey, that's cool with me, but why are you going to that one?"  I promise you I'd ask the question.  If she said it was because it was newer, or had a deli, fine.  I wouldn't suspect that she was buying a pound of meth.  But it's still something.  Yet Judge Kozinski's dissent doesn't admit that it's even that.  Which I think is a downside of his vision, and is the type of stuff that helps gives rise to his thinking that this isn't even a close case.

Of course, as usual, there's some great stuff in what Judge Kozinski says as well.  Like taking the government to task for saying that it was suspicious that the guys were setting up to meet in a not-very-busy place (thus supporting probable cause) where in other cases the government has said the exact opposite -- that drug dealers like to set up in busy places where there's a lot of traffic.  That's spot on.  Damned if you do and damned if you don't.  Everything's suspicious and support probable cause.

But in the overall context of this case, I can definitely see people disagreeing about whether the evidence here was merely "suspicious" or whether it satisifed the quantum of proof necessary for "probable cause".  That's a fine line, and smart people could (and would) argue about whether that line was crossed here.

But the line was at least approached.  It's a close case.  Not an easy one at all.

Notwithstanding Judge Kozinski's stridently articulated view to the contrary.