Two criminal cases.
Each seems straightforward, but contains a troubling detail.
First, in United States v. Schram, --- F.3d ---, No. 17-30055 (9th Cir. 2018), the Court affirmed the district court's denial of a suppression motion.
The issue was "whether a person who is prohibited from entering a residence by a court’s no-contact order still may have a legitimate expectation of privacy that would entitle him to Fourth Amendment protection in that residence." The Court determined he or she cannot.
The crux of the Court's conclusion was the principle that a privacy interest is not reasonable when one’s presence in a place is “wrongful.”
That is fine as far as it goes, but here is the sentence I find troubling: "while a defendant does not lose his Fourth Amendment rights simply by engaging in illegal acts, a defendant still may lack Fourth Amendment rights to challenge the search of a residence when the law prevents him from being there in the first place."
The law "prevents" lots of people from being anywhere in the U.S. in the first place. Is the government going to claim they have no 4th Amend rights? I certainly hope we don't see such an absurd argument. But I wish the panel had used tighter language.
Second, in United States v. McCarns, --- F.3d ---, No. 16-10410 (9th Cir. 2018), the Court affirmed the defendant's conviction and sentence for real-estate fraud.
The Court rejected the defendant's Speedy Trial Act claim, which alleged a failure to sufficiently set forth reasoning on the record. The Court held that the district court’s references to Eastern District of California local codes – which correspond to the factors set forth in 18 U.S.C. § 3161(h)(7)(B) – sufficiently explained its findings that the "ends of justice” were served by granting continuances.
More interesting is the discussion of Guidelines error. Rarely, if ever, is Guidelines error considered harmless. Indeed, the Supreme Court said just that Molina-Martinez.
But this case finds harmlessness. In fact, the Court did not even reach the question of whether the district court erred in applying a three-level manager or supervisor enhancement.
Instead, it explained that, with or without the enhancement, the low-end would exceed the statutory maximum. And because the 240-month maximum was less than the minimum of the applicable Guidelines range, any error was necessarily harmless.
Again, this is fine as far as it goes (that is, cabined to its facts). But I expect to see this decision cited in other contexts for the proposition that Guidelines error is harmless. Be aware.
