U.S. v. Schaefer (9th Cir. - Nov. 8, 2010)

You're living in Cool, California.  Which is cool on every possible level.  You're a local attorney.  Life's good, but making ends meet on the law front isn't especially easy.  Particularly after your wife gets breast cancer and you have to help out a bit.  Not a crushing amount of business in Cool.

So you start growing a little marijuana for your wife.  Now here's a business that makes sense in NoCal.  So it takes off.  You start selling a lot.

But all good things must come to an end.  For Dale Schaefer, that end is the statutory minimum sentence of five years in prison.  And watching his doctor wife get the same sentence as well.  Convictions and sentences that are then affirmed by the Ninth Circuit.

Circle of life.

In Re Hare (Cal. Ct. App. - Nov. 8, 2010)

When you're a 27-year old cokehead, murder your dealer, and get your girlfriend and 15-year old brother to help clean up the crime scene and bury the body in the desert, you're obviously in a world of trouble.  Especially after you're arrested.

Things may seem okay, though, once you skip bail and flee the state.  Particularly if you take your girlfriend with you, and then marry her under a different name.  Life is good, right?

But here's the thing.  At this point, you're basically "all-in" on keeping her happy.  Because if, three years later, she gets tired of being a fugitive, guess what?  She can turn you in, at which point she'll probably get immunity and you'll get 15 to life.

Bummer, huh?

Oh, yeah.  One more thing.  Twenty-seven years later, when you've got yet another parole eligibility hearing, and the Board of Parole Hearings finally grants you parole, don't be surprised if The Terminator reverse the decision.  Which he does as a matter of course.

And even though the trial court will reverse, the Court of Appeal will reinstate the Governor's decision.

The bummers just keep coming.

People v. Nordberg (Cal. Ct. App. - Nov. 8, 2010)

It doesn't pay to get juiced after work.  As Stephanie Nordberg, a 21-year old North Hollywood woman, learns after she drives drunk, kills a man on a motorcycle, and gets a sentence of nine years in prison.

Glen Hill Farm v. California Horse Racing Board (Cal. Ct. App. - Nov. 8, 2010)

It pays to juice your horse.

People v. Greenwood (Cal. Ct. App. - Oct. 28, 2010)

Let me make sure I get this right.

A police officer can permissibly stop any car with valid temporary tags.  So long as the computer says that the "regular" registration has expired -- and neither confirms nor denies the existence of a temporary tag (perhaps because temporary tags aren't entered into the computer when you run the plate) -- the driver of the car can't complain.  That's what you get for driving with temporary tags.

If my reading of the opinion is accurate, then this seems to me a far-reaching opinion, and I'd have liked to see the Court of Appeal describe its import more clearly.  If my reading is wrong, I'd have liked the Court of Appeal to say where my reading goes astray.

'Cause that's indeed how I read it.

Now, maybe the Court of Appeal is saying:  "Since temporary tags are usually entered into the computer database, when the database doesn't show them, an officer may permissibly stop the car."  But that's not what the Court of Appeal actually says, and even after reading the entire opinion, and exploring my own preexisting knowlegdge, I'm not at all sure that this is in fact the case.  Accordingly, the opinion seems to stand for the validity of a stop even if temporary tags aren't usually entered into the system.  And if that's indeed the case, it's definitely a pretty expansive holding.

Ahanchian v. Xenon Pictures (9th Cir. - Nov. 3, 2010)

The Ninth Circuit decides a case this morning that I bet most civil litigators will cite -- either in court or in correspondence -- at least once in their careers.  Even the most diligent litigators.  Or at least should cite.  Hence my reference to it herein.

It's an unusual case, and begins with Judge Wardlaw quoting a 1925 law review article to say:  "Procedure 'is a means to an end, not an end in itself—the "handmaid rather than the mistress" of justice.'"  Which uses language that's a bit outdated, but that nonetheless expresses a concept that continues to be true.  Moreover, for people interested in civil procedure such as myself, it's an intriguing introduction.

She then goes on to reverse the district court's refusal to grant a request for a one-week extension of time to file an opposition to a summary judgment motion.  You don't see that every day either.  Holding that because the non-moving party's attorney (1) had only eight days to file his opposition, three of which were over the Labor Day holiday; (2) had a pre-planned trip out of town over the holiday; and (3) was facing a somewhat large (though not unusually so) motion, the district court abused its discretion in rejecting the requested extension.

You can see how someone could easily find it useful to cite that case.  Situations like this come up all the time.

There's also additional useful stuff in the opinion as well.  For example, Judge Wardlaw appears to be pretty skeptical of the justice of the Central District's local rule, which often requires oppositions to be filed within seven days of the filing of the underlying motion, arguing that this "peculiar" rule creates an "exceptionally constrained deadline" for the filing of oppositions and departs from the more common 14-days-for-filing-an-opposition rule that exists in most of the other districts in the Ninth Circuit.  That's a pretty useful quote the next time you want an extension to oppose a motion in the Central District, eh?

Plus, see if you won't use this quote (from footnote seven) as well the next time you want an extension to go fishing with your friend -- or simply enjoy the holidays -- rather than filing an opposition:  "[Counsel's] lack of availability due to a previously planned trip is a reasonable basis for seeking an extension of time. . . . [A]ttorneys, like everyone else, have critical personal and familial obligations that are particularly acute during holidays. It is important to the health of the legal profession that attorneys strike a balance between these competing demands on their time."  I hear ya.  That's something I'm definitely going to keep in the back of my mind.  And use when it's appropriate.

Not just in filings, either.  I'm going to tell it to opposing counsel too when I initially request the extension.  In addition to at least some of this choice quote:  "We feel compelled to address defense counsel’s unrelenting opposition to Ahanchian’s counsel’s reasonable requests. Our adversarial system depends on the principle that all sides to a dispute must be given the opportunity to fully advocate their views of the issues presented in a case. . . . Here, defense counsel took knowing advantage of the constrained time to respond created by the local rules, the three-day federal holiday, and Ahanchian’s lead counsel’s prescheduled out-of-state obligation. Defense counsel steadfastly refused to stipulate to an extension of time, and when Ahanchian’s counsel sought relief from the court, defense counsel filed fierce oppositions, even accusing Ahanchian’s counsel of unethical conduct. Such uncompromising behavior is not only inconsistent with general principles of professional conduct, but also undermines the truth-seeking function of our adversarial system. . . . Our adversarial system relies on attorneys to treat each other with a high degree of civility and respect. [Citation]  Where, as here, there is no indication of bad faith, prejudice, or undue delay, attorneys should not oppose reasonable requests for extensions of time brought by their adversaries."

So for both the slacker and the non-slacker, there's some good stuff in this opinion that's at least worth keeping in the back of your mind as you go through the day-to-day grind.  If only because it may well be useful the next time your back's up against the wall.  Or simply if you want to have fun over Christmas rather than pound out that 25-page opposition.

U.S. v. Leal-Felix (9th Cir. - Nov. 1, 2010)

As my father -- whose family was from Iowa -- used to say:  "They grow 'em big in Iowa."

Judge Goodwin writes an eight-paragraph opinion in a sentencing guidelines case.  To which Judge Bennett, sitting by designation from the District of Iowa, responds by authoring a twenty-page, single-spaced dissent.  Complete with table of contents.

Nor am I the only one to recognize this contrast.  Judge Bennett begins his dissent with the following:


"With all due respect, because whether a “citation” is an “arrest” within the meaning of U.S.S.G. § 4A1.2(a)(2) is an issue of second impression across the breadth of the federal courts, it deserves more serious analysis than the judicial sleight of hand performed by the United States Court of Appeals for the Seventh Circuit in Morgan and adopted by this court today. Like the classic street shell game, Thimblerig, which used three thimbles or walnut shells and a pea—the so-called “short con,” because it was quick and easy to pull off—Morgan palmed the pea, so that plain meaning, a common sense and legally correct view of the word “arrest,” and fundamental fairness are no longer under the shells. Surprisingly, Morgan managed to pull off this trick with a single paragraph. I respectfully dissent from falling for the con."

I'm not sure the Seventh Circuit's opinion -- or the Ninth's -- really qualifies as a "con".  But I agree that the analysis here is relatively skimpy.  There's more than initially meets the eye.  Ditto for the shell game.

Mepco Svcs. v. Saddleback Valley USD (Cal. Ct. App. - Nov. 2, 2010)

Here's what I like about this opinion:

(1)  Its breadth.  It's comprehensive.  It takes the issues seriously.  It engages them.  I like it.  Sure, that makes the opinion long.  But it also makes clear to the parties and the public how and why the Court decided as it did.  I like that.

(2)  Its result.  The Court of Appeal holds that the trial court abused its discretion in allowing some prejudicial testimony (that the president of the company mortgaged his home to pay subcontractors), but that the error was harmless since this emotional appeal likely didn't affect the verdict.  I agree on both counts.  And both are worth saying.

(3)  Its description of certain testimony.  For whatever reason, it brought a smile to my face when I saw the opinion's discussion of how one of the witnesses -- in typical construction-person lingo -- answered the question "What did you think about quality of the construction plans?"  The response:  "They suck."  When the attorney then followed up with "What do you mean by that?", the witness then explains:  "That means I don't like them."  Sometimes witnesses on the stand talk like they talk in the real world, and I love it.

Smith v. Mitchell (9th Cir. - Oct. 29, 2010)

The Ninth Circuit is confident.  The Supreme Court is clearly skeptical.

Shirley Smith gets convicted in California for assault on a child resulting in death.  The California appellate courts were fine with the conviction, as was the federal district court when Smith filed a habeas petition.  But in 2006, the Ninth Circuit held that no reasonable jury anywhere -- even after applying massive deference -- could have found Smith guilty beyond a reasonable doubt, and accordingly reversed her conviction.

The Supreme Court, however, GVR'd the case in 2007, asking the Ninth Circuit to take a second look.  Which the Ninth Circuit did, concluding that, yeah, it was sure it was right, and that nothing in the interim decided by the Supreme Court changed that conclusion.

At which point California again returned to the Supreme Court.  Which, earlier this year, yet again GVR'd the case.  "How about taking a third look at the case, Ninth Circuit?"

"Whatever you say, oh Supreme Court."  But today, the Ninth Circuit yet again reaffirms its opinion.  Writing an opinion that's clearly designed to mollify the Court, repeatedly reiterating that the panel is keenly aware of the required deference, that this is a truly unusual case, and that this is not a case of the Ninth Circuit doing the kind of thing that the Supreme Court doesn't like.

The opinion is very well written.  We'll see if the third time's a charm, and whether the Supreme Court finally lets this one stick.

Valadez-Munoz v. Holder (9th Cir. - Oct. 28, 2010)

Continuing the theme from yesterday, this morning the Ninth Circuit brings us another opinion with a "special" word.  Though this time, it's not a creatively-spelled obscenity.

It's a run-of-the-mill immigration case, holding that a person who tried to cross the border illegally by pretending to be a U.S. citizen (by using someone else's birth certificate) isn't eligible for cancellation of removal.  Shortly into the court's analysis, the opinion says:  "[I]n this civil proceeding we are almost asked to
take a flight of fancy when we are asked to believe that Valadez was not asserting citizenship at that time."

Then immediately follows the relevant line:  "We are not that gormless about life in the real world."

Admission time.  I had no idea what "gormless" meant.  Had never seen that word before.  Though, from the context, its meaning was crystal clear.  Those of us from my generation would probably say "clueless" instead.

So I kept on reading.  Occasionally stumbling across other ten-cent words as well.

Which made me think:  I'm pretty confident I know who wrote this opinion.

Yep.  Judge Fernandez.

I figured that this was another word that Judge Fernandez introduced for the first time in a published opinion.  But I was wrong.  The word has been used three times before.  By the same person.  Not Judge Fernandez.

Judge Fernandez's doppelganger is Judge John Kane.  From the District of Colorado.  The author of three different federal district court opinions that also use the word "gormless".

So not totally unprecedented.  But still a new word for me.

Siskiyou County v. State Personnel Board (Cal. Ct. App. - Oct. 7, 2010)

Rarely do you see a word used for the first time ever in the Court of Appeal.  Still rarer do you see a word used for the first time ever in any published or unpublished, state or federal appellate opinion.

But it happens here.

The Word:  "Phuck."  As in:  "What the phuck?"

Page Three, Line 3.

Admittedly, it's a quote.  Still.  It couldn't help but bring a smile to my face.  As well as remind me of the scene in "Superbad" in which the officers tell "McLovin":  "A lot of people have weird names lately . . . We arrested a man-lady who was legally named 'Phuck'.  I think it was Vietnamese, with a 'Ph', but still pretty shocking to see on a license."  (Scene here.)  Classic.  (Oh, yeah.  And if you want to know how many times that particular movie uses that obscenity, check this out.  Short answer:  Lots.  Stunningly lots.)

But Justice Scotland nonetheless remains the first person in the history of Anglo-American jurisprudence to use the word "Phuck" in an appellate opinion.  Congratulations, I guess, are in order.  Or at least recognition.

Landrigan v. Brewer (9th Cir. - Oct. 26, 2010)

The Ninth Circuit publishes ten orders and opinions today, and this one's among both the shortest and most interesting of the bunch.

The Ninth Circuit affirms a TRO that stays the execution of Arizona inmate Jeffrey Landrigan.  Now, it's the Ninth Circuit, so that's not totally unprecedented. 

But if and when people reflexively dismiss this result as the typical product of an out-of-control Ninth Circuit -- and I'm quite confident that many the blogosphere and elsewhere will do so -- you might want to remind them of two things.

First, the panel of three judges who enter today's order includes Judge Rymer.  This is hardly someone who's constantly on the lookout for any excuse to delay an execution.  Hardly.  Way.

Second, check out the facts, which are truly unusual.  Arizona's trying to whack Landrigan, but the only sodium thiopental it can get its hands on that hasn't expired is from an unidentified foreign manufacturing source that isn't approved by the FDA.  Now, you might think -- as do I -- that the Eighth Amendment doesn't totally categorically prohibit people from getting iced with drugs that may be unsafe.  We're killing them, after all.  Not exactly worried about safety.

But we are somewhat worried about effectiveness.  We want the dude to be killed.  We also want to make sure the drug works as intended, and doesn't (for example) cause unnecessary pain, a lingering coma, etc.

So Landrigan files a petition that says that using this particular product would violate the Eighth Amendment, and the district court -- quite understandably, in my view -- tells Arizona to disclose where the drug comes from (in order to evaluate Landrigan's claims) or explain why it doesn't think that's relevant.  Arizona asserts in response that state law precludes it from disclosing that fact, which it doesn't think is relevant anyway, but the federal court disagrees, and on Saturday (!), ordered Arizona to immediately make the disclosure.

To which Arizona (on Sunday) (!!) essentially responded:  No.  Even though the execution's scheduled for Tuesday, we're not going to tell you where the drugs are from, and we're not going to comply with the order of the court.

So on Monday, the district court says -- again, quite reasonably, in my view -- "If you're not going to comply with my order, and you're not going to tell everyone where you got the drugs so they can back up their claim that the use of this particular product violates the Eighth Amendment, I'm not going to let you use the thing on Tuesday.  Execution stayed."  Arizona filed an appeal with the Ninth Circuit, but this morning -- hours before the scheduled execution -- the Court of Appeal affirms (rightfully, in my view) the district court.

It's not enough to say, as Arizona has, that the Eighth Amendment doesn't categorically preclude the use of non-FDA approved manufacturers, nor sufficient to merely state that the drugs were "cleared and approved by U.S. Customs and FDA officials."  With respect, we don't delegate Eighth Amendment claims to secret resolution by unnamed U.S. employees who look at a bottle at the border and decide to let it in.  We have a process for this.  And part of that process is that you comply with judicial orders.  And when you don't, don't be surprised -- in the slightest -- that we don't let you use the drugs whose source you refuse to reveal and the qualities of which you deliberately obfuscate and do not allow to be submitted to adversarial discourse.

I'm sure Arizona will ask for en banc review on this one, and then file something today with the Supreme Court (which I assume it already has).  I've got no crystal ball, of course.  But I gotta say that, in my view, this is decidedly not the case of the Ninth Circuit throwing up whatever roadblocks it can to prevent a death sentence from being carried out.  Rather, the problem here is entirely of Arizona's own doing.  So it would definitely not get my vote, either in the Ninth Circuit or in the Supreme Court, to dissolve the stay.  And I'll hazard a prediction -- always dangerous in this area -- that there are lots of others who'll feel the same way.  Both on the Ninth Circuit and in the Supreme Court.

So at least for now, Landrigan will likely live another day.

POSTSCRIPT - Yep, there are others who feel the same way as I did on this one.  On the Supreme Court, exactly four of 'em.  The Court voted late Tuesday 5-4 to dissolve the stay.  And Arizona killed Landrigan shortly thereafter.

Kovacevic v. Avalon at Eagles' Crossing HOA (Cal. Ct. App. - Oct. 26, 2010)

I'll just add one thing to Justice Aaron's opinion in this case, which is both short (a dozen double-spaced pages) and spot on.

When a vexatious litigant files a lawsuit pro per in violation of a prefiling order that expressly precludes her from doing so without permission of the chief judge, that person has committed a contempt of court.  Even if, as here, she later obtains an attorney to represented, she's still in contempt.  I think it'd be pretty surprising if the law was that this contemptous conduct could benefit the transgressor -- for example, here, by making her complaint timely (i.e., within the statute of limitations).  So even beyond the words of the California Code of Civil Procedure, which say that such lawsuits shall indeed be dismissed, I'm not at all sympathetic to the view of the plaintiff here.  You can't toll the limitations period through deliberately contemptuous conduct.

Lawsuit dismissed.  Costs to defendant.

People v. Engram (Cal. Supreme Ct. - Oct. 25, 2010)

The California Supreme Court finally wades into the Riverside County mess.  And hold that, yep, all the lower courts were correct.  You don't have to pull judges out of (inter alia) Probate Court in order to solve the huge backlog of criminal cases.  But it's still the state's fault -- and a continuing one, at that -- that many defendants in criminal cases in Riverside don't get a speedy trial.  So, as a direct result of the state's failure, criminal charges against various defendants are dismissed.

This is one of those rare cases in which the highest tribunal of a state rightly grants review to make clear that the lower courts are right and that an executive-level official (here, the Riverside DA) should stop making contrary claims.  It settles the law.  It puts the onus back where it belongs; here, on the state.  Good for everyone.

In Re Jose C. (Cal. Ct. App. - Sept. 2, 2010)

It's a dependency case. So you know the facts are going to be depressing.

Here's a case that's not nearly as bad as many of them. The father has no contact with the child, and his whereabouts are unknown. But there are strong bonds between the mother and the kid.

The problem is cognitive ability. At a five-year old level even though the social level is as an 11-year old. So clear cognitive problems.

Not so bad you say?

Oh, I forgot to add one thing. I'm not talking about the child. I'm talking about the mother.

Yikes.

Think about a five-year old trying to take care of another child. Particularly a child that has many problems of his own. Double yikes.

And remember. This isn't even nearly the most depressing dependency case I've read lately.

1-800-GOT-JUNK? v. Superior Court (Cal. Ct. App. - Oct. 21, 2010)

Okay, I admit it.  I was going to post something about this case even before I read it.  Because I loved the caption.  1-800-GOT-JUNK? v. Superior Court.  Love it.

Plus, in truth, I basically have to admit that fact.  I have nothing at all to say about the doctrine applied by the Court of Appeal, and I also agree with its result.  A franchise contract specifies that Washington law applies.  The franchisor is based in Vancouver, Canada -- just across the border.  That's reasonable, and we should enforce that choice of law provision.  That remains the case even though California's franchise law provides that parties can't waive the pro-franchisee provisions of California's law, as -- surprisingly, at least to me -- I learned that Washington law is even more protective of franchisees than is California.  Makes sense.

So I have no beef whatsoever here.

Nonetheless, I thought I'd at least mention that this is a somewhat weird case because guess who's arguing for the invalidity of the choice-of-law provision here?  The franchisor.  The party that drafted the contract, and the party that inserted the choice of law provision.  Pretty rare, huh?

Seems to me that, wholly apart from the doctrinal merits, there might be a problem there.  I think a party that drafts the contract -- largely a non-negotiable contract of adhesion, at that -- has a hugely uphill battle when it argues that choice-of-law provisions that it drafted are legally unenforceable.  For me, it wouldn't normally do for such a party to say:  "Well, we thought they might be unenforceable in California, and even said so in the franchise agreement."  Which 1-800-GOT-JUNK? indeed did here.  It'd be easy enough to say:  "Washington law applies except for franchisees in California, for whom California law applies."  But 1-800 didn't do that, and I imagine deliberately so.

When you purposefully create an ambiguity -- saying "Washington law applies, except maybe it doesn't" -- in situations in which clarity is easy, I think a reasonable interpretation is that you're trying to have it both ways, and leave open the possibility that in a different case, you'd indeed be arguing that Washington law applies, even for franchisees in California.  I don't like that.  If there's ambiguity, and you caused it, I don't think I'm going to be very sympathetic when you say that the contract that you drafted is illegal.  Which is yet another reason I'm happy with the result here.

But still.  Mostly I just like the caption.

Smith v. Almada (9th Cir. - Oct. 19, 2010)

A dissent by Judge Dorothy Nelson is worth at least mentioning.  Particularly since she's not known as The Great Dissenter.  Especially in opinions joined by, say, Judge Gould.

Ergo my mention of this case.

I'd discuss the opinion anyway.  If only to point out that in the unlikely event that you want to commit arson, the opinion gives two pieces of implicit advice.

First, don't just pour gasoline all over the place, nor put it alone in a container.  It'll just explode and burn out too quickly.  Instead, stick the gasoline in a container alongside lots of paper -- magazines, cardboard, old mail, etc. That'll make the thing burn better, apparently.

Second, if you follow the above advice, do not use your own magazines and mail addressed to you.  Yes, you might think it'll all burn up.  But you'll be wrong.  So, for example, when the arson investigators here found the ignition materials, alongside a plethora of old magazines and mail with Anthony Smith's name on them, guess who their chief suspect was, and who they ultimately prosecuted?  Yep.  Same guy.  A guy who, investigators later discovered, had a beef with the business that was burned down.

But unlike most of my lessons, maybe this last one is something that you can ignore.  'Cause guess what?  Notwithstanding this evidence, Smith wasn't convicted at trial.  His first jury hung 7-5 in favor of acquittal.  And his second jury hung 11-1 the same way.  At which point the government gave up.

So maybe the lesson is:  Go ahead and use your own mail.  No biggie.

Or, perhaps, that trying to frame someone by using their mail will successfully avoid the heat on you, but won't get the other person convicted.

Notwithstanding the importance of those lessons, as well as the disputes that they might engender, that's not -- obviously -- what the majority and dissent disagree about.  The other thing that allegedly happened is that the prosecutor in the case allegedly failed to disclose exculpatory evidence.  So Smith sues.

The majority, however, affirms the district court's dismissal of this action.  Holding that Smith can't prevail because he wasn't convicted.  Sure, he spent a year and a half in prison (since he couldn't make bail), lost his liberties and (potentially) wages and defense costs, etc.  Too bad.  You undeniably could have sued if you were found guilty, the Ninth Circuit says.  But you weren't, so you can't.  Sorry about that.

The Ninth Circuit's got a reason for that seemingly counterintuitive holding, of course, arguing that by definition you're categorically not deprived of a fair trial as a result of the failure to disclose exculpatory evidence if the consequences of that proceeding aren't adverse.  I'm not sure this really applies to a hung jury or in situations in which (as here) there are multiple proceedings, but there's a broader beef as well, and that's the one that Judge Nelson articulates.  You can be damaged, and your rights violated, she argues, even if the result of the trial is an acquittal.  Hence the rule that the Ninth Circuit articulates, she says, unfairly imposes the requirement of a guilty verdict on civil Brady claims.

I wanted to add just one thing to Judge Nelson's dissent.  Suppose we're not talking about a Brady violation -- a failure to disclose exculpatory evidence -- but instead out-and-out perjury.  Let's say the prosecutor puts a witness on the stand that he knows is committing perjury; indeed, has told him to lie.  Moreover, at trial, that is the only evidence against that defendant.  Absent that evidence, there'd have been a dismissal of the case at the close of the prosecution's case.  Because of that evidence, defendant spends $100,000 in attorney's fees and associated costs in order to rebut it at trial, with witnesses, experts, etc.  And, ultimately, the jury agrees with him and acquits him.

Presumably the answer has to be the same, right?  No remedy, since no conviction.  Putting on perjured testimony seems practically identical to failing to disclose exculpatory evidence, after all, and has the same effect.  So even putting on perjured testimony doesn't violate anyone's rights as long as the jury eventually figures it out (or hangs), eh?

That just doesn't seem plausible to me.  Either under existing doctrine or as a matter of fundamental fairness.  Seems to me that you can sue for deliberate perjury even if you're acquitted.  Ditto, I think, for a failure to disclose exculpatory evidence, at least when (as here) there are damages that allegedly flow therefrom.  (Indeed, in some ways, a failure to disclose exculpatory evidence is more harmful than putting on perjured testimony -- at least you get to challenge and cross-examine the latter, whereas with the former you never even know about the stuff and hence have no opportunity to present it.)

So I think there's a lot here to think about.

Earp v. Cullen (9th Cir. - Oct. 19, 2010)

Sometimes you can tell who they're talking about even before they tell you.

I'm reading along in this opinion about habeas hearings concerning alleged prosecutorial conduct, and the Ninth Circuit says, yeah, we need a new hearing because the district court erred.  Thereafter, the opinion says:


"In his opening brief, Earp requested that, upon remand, we reassign the case to a different judge. In the absence of personal bias, we assign a case to a new judge on remand only in 'unusual circumstances.'  [Citation] . . . . We regrettably conclude that the circumstances of this case warrant reassignment."

So I'm thinking:  "Hmmm.  That's interesting.  The Ninth Circuit rarely does that.  I wonder what's the scoop."

Judge Tallman's opinion then tells me:

"In its order, the district judge made explicit credibility findings—it found Taylor incredible and Foltz and Milkey credible. On remand, we cannot reasonably expect the district judge to set aside these credibility
findings and reassess the viability of Earp’s claim of prosecutorial misconduct in light of Doshier’s testimony."

At which point I say to myself:  "Okay.  That seems plausible.  I can see the reason for potentially remanding to another judge.  Still somewhat unusual, but I can understand the basis for it."

But then Judge Tallman continues:

"Additionally, during the pendency of the original proceedings on remand, we had to intervene and enter an emergency stay in response to the district judge’s refusal to continue the evidentiary hearing in order to allow Earp and the California Department of Corrections time to locate and transport inmate Taylor to Los Angeles to testify. At the next hearing, the district judge was very critical of the request for a stay, notwithstanding the importance our remand order placed on assessing Taylor’s accusation. Under these circumstances,  reassignment is necessary to uphold the appearance of justice."

Now I have a different reaction.  This is clearly not some ordinary district court judge.  This is a judge that the Ninth Circuit doesn't like.  And with respect to whom the feelings are fully reciprocal.

Which makes me think only one thing.  Judge Real.

At which point I look at the caption.  Yep.  It's him.

Which also resolves a lingering question that I had about the opinion.  I initially understood why reassignment was plausible -- since a judge who has already found someone credible is indeed unlikely to change her mind -- but also thought that it might also be somewhat difficult for a judge in the same district to disagree with his colleague and find uncredible a witness that his cohort expressly found credible.  Not impossible, but perhaps hard; perhaps nearly as hard as the original judge changing her mind.

But once you realize it's Judge Real, that concern disappears.  I don't think anyone minds disagreeing with that guy.  Indeed, at least on the Ninth Circuit, I think it's an affirmative pleasure.

Which, parenthetically, is probably what the Supreme Court often feels when it reverses the Ninth.  So this time the shoe's on the other foot.

U.S. v. Lozano (9th Cir. - Oct. 18, 2010)

Let's say you're on probation, and officers have previously found marijuana at your residence.  Let's further say that you're thinking about having a friend send you a huge package of weed from California in the mail.

Let me give you a piece of advice in such settings.  Do not -- I repeat, do not -- go to your local post office shortly before this shipment and ask the postmaster whether your local post office conducts dog searches to look for drugs in the mail.  Because you know what?  Once you ask, they will.  At least with respect to your post office box.

And entirely rightly so.  Your question alone generates reasonable suspicion up the ying yang.  So when your post office box gets a handwritten package addressed to a strange dude who's not you, guess what?  They're going to search it.  And no one -- not the district court, the Ninth Circuit, or your local law professor -- will have the slightest problem with that.

So that's a practical lesson for today.  One which I'd hope would be obvious, and yet one in which reality apparently reflects is not.

Let me also add a doctrinal lesson.  One that's far from obvious.

Judge O'Scannlain files a separate concurrence to make an additional, much more expansive, point.  He argues that the defendant here has no standing to even raise a Fourth Amendment challenge to the search because the package was sent to an alias and the defendant denied at trial that the marijuana was his.  Judge O'Scannlain cites several out-of-circuit cases that hold that people do not have a reasonable expectation of privacy in packages that are addressed to others to argue that, accordingly, a defendant does not have a reasonable expectation of privacy in a package that the defendant argues at trial was indeed addressed to others.

But my initial reaction -- admittedly without reading these out-of-circuit cases -- is that the issue here is different.  It's one thing to say that an identifiable person, X, is the only one with standing when a package is addressed to him.  If a package is addressed to me, but you open it, I can understand why courts might give me standing but not you, particularly if your receipt or opening of the mail was unauthorized.  But it's different when the addressee is a fictional person.  In such a setting, it seems strange to deny standing to everyone and essentially make unlimited searches permissible.  Seems to me that the guy who receives the package in such a case does indeed have standing.  Cases involving real people would thus be distinguishable from cases that involve fictional -- at least as far as we know -- people.

Now, Judge O'Scannlain would hold that the reason the cases should come out the same way is because the defendant has argued at trial that he's not the addressee (in an attempt to escape prosecution), and hence -- according to Judge O'Scannlain -- essentially concedes that he has no standing.  This makes internal sense, I guess.  But even beyond possessory and other interest that might still grant standing, why isn't the converse perspective equally true?  The United States argues that the defendant was the true addressee; hence, why isn't that binding on the government, as an admission that the defendant does have standing?

It seems to me that either perspective is equally valid.  It just depends on which way one looks at it.  Plus, from a practical perspective, I think it make sense that we realize what we all know to be true:  in most of these cases, the defendant was indeed the intended recipient, as the government has rightly argued (and as the jury will most likely conclude).  Given this reality, I'm not at all convinced that it makes sense to adopt what seems to me a somewhat too-cute-by-half doctrine that says whenever you have a package mailed to you but use an alias you've entirely waive standing.  Such a result seems less compelled by precedent than a desire to achieve a particular result through invocation of stringent, and unnecessary, procedural dictates.

So I would sign on with the per curiam opinion here, but not with Judge O'Scannlain's concurrence.

I might even respond to it in print.  As indeed I just did.

Margarito v. State Athletic Commission (Cal. Ct. App. - Oct. 14, 2010)

I'm not a big boxing fan.  So maybe everyone "in the know" already knows about this.

But apparently, before the Antonio Margarito/Shane Mosley welterweight title fight in 2009, officials caught Margarito with a "plaster-like" substance strapped to both of his fists.  They confiscated them, and the fight went on, at which Margarito -- bereft of plaster of Paris knuckles -- was the victim of a "stunning upset" and lost on a TKO in the ninth round.

But that wasn't all for Margarito.  California then revoked his boxing license.  He hired Daniel Petrocelli to appeal, who argued that Margarito's Due Process rights were violated.  But the Court of Appeal didn't buy it.  At all.  (Nor do I.)  It affirms.

Not that this is fatal for Margarito.  Sure, it put his boxing career on hold.  But there are other states.  And, apparently, Texas is just fine with a guy (allegedly) caught white-handed with plaster of Paris in both of his boxing gloves.  Margarito's apparently scheduled to fight Manny Pacquiao in Cowboys Stadium in Texas on November 13th.

Pacquiao, meanwhile, is represented by Petrocelli in a defamation lawsuit against the Mayweathers for asserting that Pacquiao uses performance-enhancing drugs.  I wonder if that's in the conflict disclosures in Petrocelli's fee agreement?

Ah, boxing.  The Sport of Kings.