Thursday, March 18, 2010

U.S. v. Cha (9th Cir. - March 9, 2010)

We don't have a plethora of published Ninth Circuit opinions coming out of Guam. Interestingly, though, while I haven't run the numbers, my gestalt impression is that (1) almost all of the "forced sex trafficking" cases come from Guam, and (2) those types of cases make up a palpable fraction of the number of published opinions from Guam.

What's also interesting about the opinion is that it gives an outside observer a little bit of insight into a couple of aspects of the culture of Guam. My younger brother Brian was a teacher in Guam for a couple of years, and my wife (then-girlfriend) once visited him there when she was a clerk and her judge was sitting by designation there. So I already knew a little bit about the place. But it's always nice to read things that confirm the accuracy of the stories you hear from others.

One thing about Guam is that there are a lot of snakes. But the Ninth Circuit's opinion focuses on two other somewhat unseemly aspects of the place.

First, prostitution. There's a lot of it. Including women who are forced into it by brothels who ship the women over (typically from Asia) and keep them confined against their will. As Judge Beezer puts it in this case:

"It was Saturday evening, January 12, 2008, in Tamuning, Guam, when Officers Manibusan and Laxamana pulled into the parking lot of the Blue House Lounge karaoke bar to investigate a report they had received earlier that evening. Sonina Suwain (“Ms. Suwain”), who was from Chuuk, had reported that the owner of the Blue House Lounge, Ms. Cha, had Ms. Suwain’s passport and was refusing to return it. When the officers arrived at the Blue House Lounge, Ms. Suwain told the officers that two of her cousins from Chuuk, Cindy and Vivian, were being held inside the Blue House Lounge against their will.

Officer Manibusan sent Officer Tan, who had just arrived with several other officers, into the Blue House Lounge to find Cindy and Vivian so he could determine whether they were there 'on their own free will.' When Officer Tan entered the lounge, the karaoke machine was playing and customers were drinking at the bar. He found Cindy waiting tables. Officer Tan asked the bartender where he could find Vivian, and the bartender pointed to several numbered doors in the back of the restaurant. Officer Tan recognized these rooms as 'comfort rooms,' which are fairly common in karaoke bars in Guam. [!!] In these rooms, customers 'can buy drinks and take the waitress into the room and watch TV or sing songs or just chat.' [Or 'whatever', I'm sure] Officer Tan heard a woman’s voice coming from one of the comfort rooms and knocked on the door. Vivian emerged looking disheveled, and a man stood hiding behind the door with his pants 'barely on'—unzipped, unbuttoned, and unbuckled.

Once Officer Tan and the two women were outside, the women, crying, reported that they were being prostituted against their will. They maintained that Ms. Cha kept their passports and that if they refused to have sex with a customer, Ms. Cha would refuse to feed them that night."

Second, the police. You can read the whole opinion for the full story of what transpired -- and, more importantly, why what the police did queered the prosecution. But here's a taste:

"The poignant facts of this case demonstrate why Fourth Amendment possessory and privacy interests are greatly affected by the seizure of a dwelling. Mr. Cha was rendered homeless for the duration of the seizure. When he left his wife at the police station at 8 a.m., he went home only to find that he was barred from entering. He then waited outside his house for most of the day until 7 p.m. when an officer finally accompanied him to retrieve his diabetes medicine. He then waited outside his residence until at least 1 a.m. The next day he waited outside as well, only to travel to his wife’s arraignment. The search began at 2 p.m., and he helped the officers during the search that lasted until 1 a.m. Tuesday morning. Only then was he allowed to return to his house—nearly 48 hours after being excluded. . . .

Officer Perez testified that he was never taught at the police academy that “'time was of the essence’ once the police have secured a premises” or “that the police had to act with deliberate haste to obtain the warrant.” See McArthur, 531 U.S. at 332. Indeed, the United States argues that “Officer Perez . . . did not know that he had a duty to diligently pursue the drafting and eventual approval of the warrant by a detached magistrate.” Appellant’s Br. at 23. The Guam police department’s failure to know the governing law was reckless behavior; the police officers were a far stretch from Leon’s “reasonably well trained officer.” . . .

[N]one of this delay was “unavoidable”—the officers had probable cause at 1 a.m., and Officer Perez could have drafted the warrant application at least after the 12 p.m. briefing. The officers, however, had a “nonchalant attitude” and proceeded in a “relaxed fashion.” . . . Not only were the police errors deliberate and culpable, they were systemic. Although the officers raided the Chas’ prostitution business at 1 a.m. Sunday, the officer tasked with preparing the warrant application was told only to arrive at the police station at noon. The investigating officers were supposed to have their reports completed by 3 p.m., but they did not finish them until 6:30 p.m.; it is unclear whether they knew that the premises had been secured at all. Officer Perez had a “personal preference” to read the reports, so he waited until 6:30 p.m. on Sunday to begin drafting the warrant application. And further delay was occasioned by the Chief Prosecutor,
who asked to review the warrant application Monday morning. Finally there was no departmental training or protocol instructing the officers that a warrant must be secured reasonably quickly after a premises has been seized. As far as this record shows, the “nonchalant attitude” that the district court condemned was pervasive in the Guam law enforcement apparatus."

Overall, Judge Beezer's opinion doesn't paint a very favorable opinion of Guam, I'd say.

I did like one thing, however. Apparently it's pretty sweet being a lawyer there. Or at least that's what I got from a tiny little snippet of the opinion. Which mentioned that when Mr. Cha went home at 8:00 a.m. -- after accompanying his wife to the police station for seven hours of interrogation -- he found that his house was guarded by police, who refused to let him enter. So what did Mr. Cha do?

"He called his lawyer, Mr. Van de veld, anxiously recounted the night’s events and told Mr. Van de veld that 'the police were still there and would not allow him access to the premises.' Mr. Van de veld told Mr. Cha that he would stop by as soon as he finished his golf game. [!!] Around 12:45 p.m. [!!], Mr. Van de veld, with his golf buddies in tow, arrived at the Cha residence."

Nice. "Look, I know your wife has been interrogated by the police all night, and is under arrest for forced sex trafficking and prostitution, and that you're being excluded from your home and can't get your diabetes medication. But I'm about to tee off. See you in five hours, okay?"

I wish we could get away with that in the States.