Two cases today.
In United States v. Bocharnikov, --- F.3d ---, No. 19-30163 (9th Cir. 2020), the Court reversed the district court's denial of a motion
to suppress inculpatory statements in a case in which the
defendant entered a conditional guilty plea to aiming a laser
at an aircraft in violation of 18 U.S.C. § 39A.
Here are the facts: After someone at the defendant’s address pointed a laser
at a police aircraft in flight, officers went to the defendant’s
home, illegally detained him, interrogated him without
Miranda warnings, and after the defendant confessed, seized
the laser. Eight months later, an FBI agent approached the
defendant outside his home and stated he was there to ask
“follow-up” questions about the incident. The defendant
again admitted to shining the laser at the plane. The
defendant moved to suppress the inculpatory statements he
made to the FBI agent because the illegality of the first
encounter tainted the second.
This case is interesting because the initial confession at issue resulted from a Fourth Amendment violation. As the Court explained, "when a confession results from
certain types of Fourth Amendment violations (rather than a
Fifth Amendment violation), the government must go beyond
proving that the confession was voluntary—it must also 'show a sufficient break in events to undermine the inference
that the confession was caused by the Fourth Amendment
violation.'"
"This is a fact- and case-specific inquiry. Three factors are relevant in our analysis of
whether Bocharnikov’s statements were 'sufficiently
attenuated from the underlying illegality to be admissible:
(1) the temporal proximity of the search to the confession;
(2) the presence of intervening circumstances; and (3) the
purpose and flagrancy of the official misconduct.'"
In this case, the parties agreed the Fourth Amendment violation was a detention without probable cause, and thus the attenuation analysis applied. The Court, applying the three factors, held: "the government cannot carry its burden of proving that
Bocharnikov’s statements to Agent Hoover were sufficiently
attenuated from the illegal detention and seizure eight months
prior. His statements should have been suppressed."
There was also a concurrence, noting: "At no point has
the government meaningfully analyzed Bocharnikov’s first
encounter with law enforcement to help us determine what
sort of violation occurred." The concurrence explained: "The nature of the initial violation actually matters a great
deal: only some constitutional violations are capable of
tainting subsequent confessions."
Next, In re Grand Jury Investigation, --- F.3d ---, No. 19-10187 (9th Cir. 2020), involved two appeals arising from a federal grand jury
investigation into the acquisition of one company by another. The Court (1) dismissed for lack of appellate jurisdiction the
Doe Company’s interlocutory appeal seeking review of the district court’s
order enforcing Doe Company partner Pat Roe’s compliance
with a grand jury subpoena, and (2) affirmed the district
court’s orders enforcing the Doe Company’s compliance with
a grand jury subpoena and holding the Doe Company in
contempt for failure to produce the subpoenaed documents in
its possession.
On the interlocutory appeal issue, the Court held, under Perlman v. United States,
247 U.S. 7 (1918), it could entertain interlocutory
appeals from orders enforcing grand jury subpoenas only
when they require production of materials that are claimed to
be privileged or otherwise legally protected from disclosure: "In seeking interlocutory review of a
court order enforcing a grand jury subpoena, an appellant
must assert a claim of evidentiary privilege or some other
legal claim specifically protecting against disclosure to the
grand jury. The appellant must claim a 'right . . . to secrecy
of the transaction' that can be vindicated only through
interlocutory review."
Because the Doe Company made no such claim, the Court
lacked jurisdiction.
As to the enforcement issue, the Company
argued the district court lacked in personam jurisdiction
and that service of the subpoena was improper. The Court rejected these arguments.
It explained, the government need only show "that
there is a reasonable probability that ultimately it will succeed
in establishing the facts necessary for the exercise of
jurisdiction" over a nonresident alleged to have violated
federal criminal law.
Further, service can be made "upon a
representative so integrated with the organization that he will
know what to do with the papers."
