ADVERTISEMENTS

U.S. v. Mausali, No. 08-50062 (1-11-10). If there is a claim of outrageous government misconduct, and the defendant is aware of the conduct, he must raise it in a pretrial motion. This is the position of the 2nd, 3rd, and 8th circuits, and it is now the position of the 9th. An undercover agent of the ATF used a CI to infiltrate a crew doing alleged home invasions. The agent supposedly masterminded the plan for a home invasion that was thwarted on the day of the planned acts. The defendant knew about the agent's involvement, but failed to raise the motion pretrial, at trial, or even after trial. The 9th (Silverman joined by Hall and Conlon, D.J.) reasoned that such claims go to the tainting of the prosecutorial function, and must be presented in time to fully air out the allegations. Of course, the 9th agrees, this depends on the defendant's awareness. If facts come out after trial has begun, or there is some excuse for not raising it pretrial, then the 9th can consider it. That is not the case here. The 9th also finds no error in the actions of the district court in dismissing a juror who said he was to be impartial, and could not decide the facts on the evidence. The defendant was given a chance to possibly ask the juror "why" or delve deeper into the reasons, but he declined. The 9th found the challenge to the mandatory minimum of life to be foreclosed by precedent.

U.S. v. Pineda-Moreno, No. 08-30385 (1-11-10). A curtilage isn't what it used to be. Time to get out the "No Trespassing" signs and stake them around the driveway. Here, the defendant was being investigated on drug charges. Agents placed a mobile tracking device on his Jeep while in his driveway. The driveway had no special features that raised an expectation of privacy necessary for curtilage protetcion under the 4th Amendment. There were no barriers or fences, or enclosures, or a lack of visibility. There were no "No Trespassing" signs or warnings. The driveway was open to the public, and was used to approach the house. The attaching of the device in the early morning -- between 4 and 5 am -- did not raise the expectation of privacy to the driveway's physical nature. The 9th (O'Scannlain joined by N. Smith and Wolle, D.J.) followed precedent (McIver) in holding that the undercarriage of the car was the exterior; and that parking the car on the public street was outside the curtilage. Finally, the mobile tracking device is permitted by the Supremes.

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