Two quick points about this case, which involves one of the many, many, many (did I say many?) criminal cases that we have down here in the Southern District of California that charges the defendant with being a deported alien found in the United States.
First, what's up with the district court here; and, for that matter, with the United States Attorney's Office?! The Ninth Circuit has held around a thousand times that you're not guilty if you're under constant official surveillance while you're in the United States. Everybody knows that fact, and especially everyone in San Diego who has any experience whatsoever with the most common criminal offense (by far) tried down here. But here, the district court -- and I can't tell if it's Judge Thompson or Judge Sabraw -- asks the government if they agree that this is the law, and the U.S. Attorney's Office basically responds: "No." So, on that basis, the court refuses to give the appropriate instruction about being free of official restraint. And so, when the case gets to the Ninth Circuit, the court -- and this will come as a surprise to no one -- unanimously reverses the conviction.
Now, I've always been a little unclear about the whole "official restraint" thing as applied to surveillance, and think it's at least a tiny bit troubling. But it's clearly and unambiguously the law. Which means that you have to follow it. And that includes both the U.S. Attorney's Office and district court judges when deciding whether to give a jury instruction requested by the defendant. So why that doesn't happen here is entirely unclear to me. Plus, even if you objected to that state of the law, what purpose does ignoring it serve? All that happens is that the law gets reaffirmed by the Ninth Circuit and now we have to waste money on a retrial. Why not just get it right the first time, and, as a neat byproduct, comply with the law (and not have the defendant rot in jail on the basis of an unsound conviction)?
Maybe I wouldn't have a problem with the district court or U.S. Attorney's Office if they said: "Yeah, that's the law, all right, so he's entitled to the instruction under existing precedent, but we think that the law should be changed, so our position is blah blah blah." But that's not what seems to have happened here; rather, it looks more like "Let's see what we can get away with." Which isn't at all how I'd expect (or want) the relevant parties to act.
One other, totally tangential, point. The transcript reveals (at page 7164 of the slip opinion) that Agent Rodriguez responded to one of defense counsel's questions with the following reply: "Yes, m'am." Is that really right? I thought you spelled the word "Yes, ma'am." Have I been spelling it wrong all along? (Which, as anyone who reads anything I've ever written -- which includes innumerable spelling errors as a result of both my deficient primary school education and utter incompetence -- already knows, is entirely possible.) Or, in the alternative, is "m'am" an acceptable alternative or regional spelling? Or is it just a mistake?
I don't know. But if it's in fact a spelling error in the opinion, watch out. When someone like me catches your spelling error, you know you're in bad shape.
