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Oral Argument in United States v. Comprehensive Drug Testing:
I blogged a week or so ago about the Ninth Circuit's pending en banc decision in United States v. Comprehensive Drug Testing, a computer search-and-seizure case arising from the investigation into steroid use in baseball. The Court held its oral argument on Thursday, and the audio is available for downloading here.

  The judges on the en banc panel were Kozinski, Kleinfeld, Graber, Wardlaw, W. Fletcher, Paez, Berzon, Callahan, Bea, M. Smith, and Ikuta. I found it a little hard to get a sense of where the court was going because I could only recognize a few of the judges by their voices. A few panelists expressed strong views, but without knowing who they were it was hard to know if those views were likely associated with outcome-determinative votes.

  Anyway, here are a few general thoughts about the argument:

  1) The issue of whether Rule 41 was the right vehicle for this sort of relief received some attention, but my sense was that most of the judges weren't particularly interested in it. If the en banc court ends up reaching the merits and allows this use of Rule 41, the Ninth Circuit may create a novel sort of pre-indictment suppression remedy that may be the most important development of this case. As a practical matter, only rich defendants would be likely to benefit from such a development: Most searches occur before the right to counsel has attached, so pre-indictment challenges would only tend to be brought by suspects wealthy enough to hire sharp lawyers who would know what to do. But this is still an issue very much worth watching.

  2) At argument, the United States tried to circumvent a lot of the difficult questions raised on the merits by arguing that the common denominator of computer searches was one virtual file, rather than specific information revealed to the government. Because the evidence in dispute here was on one file, counsel argued, there were no issues of plain view. I considered this argument in my article on computer searches, and I ended up rejecting it: I concluded that files are just virtual constructs, and it's arbitrary to base a rule on them. Instead, the common denominator of a computer search should be the information exposed. If a government agent sees part of a file and has to scroll down to the bottom of the file to see the rest, that scrolling amounts to an additional Fourth Amendment search. See pages 554-57 of this article for the argument.

  3) Peters, counsel for the Players' Association, offered what I thought was a highly unrealistic sense of how the government can know when they have the needed evidence responsive to a warrant. If I understood him correctly, Peters suggested at argument that when the company came forward with a piece of paper during the execution of the warrant that the company said was the needed test results, the government should have stopped searching and presumed the company's truthfulness and accuracy. Peters reasoned that it looked like in hindsight that the company was being truthful and accurate, and the government should have recognized that. And at the very least, a very minimalist key word search would have done the job. But knowing something ex post is not the same as knowing it ex ante. I think it's a bad idea to have a Fourth Amendment rule that says that you have to rely on that sort of representation or narrow search when executing a warrant, as it would leave the government in the dark about whether there was a larger picture on the computer that casts doubt on what the government agents think they learned.

  A rule requiring that reliance could also create interesting evidentiary hurdles for the prosecution if charges are brought. Imagine you are counsel for a defendant charged with doping, and your client is being charged largely on the basis of evidence that an employee claimed were the relevant test results. The jury won't know that the government relied on the paper to avoid a Fourth Amendment violation. As a defense attorney, you're going to slam the government for relying on the employee with the piece of paper. The real records are on the computer, you would argue, and the government never even checked the computer! How can your client be convicted on the basis of purported evidence when the government never even confirmed that it was the real thing?

  4) Finally, if the Ninth Circuit ends up ruling against the government, the next important issue will become how the court's new standard interacts with the Fourth Amendment's particularity requirement. The warrants here were facially valid, and the challenge is to their execution. But if the court concludes that the warrants were executed improperly, the government will respond by drafting their warrants more broadly so that their execution is more in line with their facial validity. That will put the new doctrinal pressure on the particularity requirement for computer searches, which courts have so far not enforced very strictly. It will be interesting to see if that might change.
Fub:
Just a question unrelated to substance -- The 9th Circuit media access page you linked above shows 3 audio available for docket numbers on Thursday 12/18:

12/18/08
05-10067EB 10.09MB
05-50375EB 9.03MB
06-15614EB 9.79MB

Which one is United States v. Comprehensive Drug Testing?

Thanks!
12.21.2008 12:51pm
whit:

Imagine you are counsel for a defendant charged with doping, and your client is being charged largely on the basis of evidence that an employee claimed were the relevant test results


what do you mean "charged" with doping? i hope you don't mean "charged" in the legal sense. do you mean "accused?"

there is no such CRIME as doping that i am aware of. possessing certain drugs w/o a script is illegal. USING them is not. also, you can be doping (ie violating the regs of your sports body) with perfectly legal drugs.

for example, people have been caught doping who have prescriptions for hgh, anabolic androgenic steroids, etc.

iow, they were using and possessing legally, but they were still violating the regs

also note that many sports (mine included) bans even excessive CAFFEINE use. you can certainly be accused of , and found responsible for doping if you megadose caffeine in a competition, but it's not a crime you can be "charged" with.

iow, there are two seperate things

1) illegal possession of drugs
2) doping

1 does not necessarily imply 2 and vice versa.
12.21.2008 2:55pm
Dilan Esper (mail) (www):
whit:

Don't forget it's also illegal to PRESCRIBE scheduled drugs without a valid reason, and an athlete who procures such a prescription from his or her doctor can be prosecuted for conspiracy or aiding and abetting.
12.21.2008 3:12pm
whit:

Don't forget it's also illegal to PRESCRIBE scheduled drugs without a valid reason, and an athlete who procures such a prescription from his or her doctor can be prosecuted for conspiracy or aiding and abetting.



that's a seperate issue.

first of all, there are all sorts of anti-aging clinics that will prescribe hgh etc. for people and bring them up to therapeutic levels. ditto for AAS.

neither is illegal. as long as the doses are not massively supraphysiological, and are not done for the express purpose of hypetrophy or sports performance - it's legal.

as to the aiding and abetting, i am not aware of any case where a person whose dr. was "loose" with AAS or hgh scripts was charged with "aiding and abetting". patients are not required or expected to know the therapeutic limits. MD's are.

but this is tangential to the main point. "doping" can involve perfectly legal actions - either use (use is not illegal - possession is) of an illegal drug, posession of a controlled substance WITH a script, use or possession of an OTC substance that is otherwise banned (tribulus, megadose caffeine), etc.

iow, i stand by my point. you cannot be "charged" In the legal sense of "charge" with doping. doping is not a crime. the possession of the drugs USED to dope *may* be illegal, but that is not always true.

feel free to gander at the USADA website.

or recall the case of the gymnast at the sydney olympics who had her medal stripped because she tested positive for pseudoephedrine. it turned out she had been suffering from a cold, and her IDIOT dr. gave her some (OTC) pseudofed.

perfectly legal, but a violation of doping protocols.

or consider an athlete who goes to mexico once a week and shoots up with all sorts of (legal there) AAS. he is not violating any laws. he is definitely doping, if his sports body prohibits AAS
12.21.2008 3:30pm
Jeff Westcott (mail):
Fub:

It's 05-10067EB
12.21.2008 4:37pm
Fub:
Jeff Westcott wrote at 12.21.2008 4:37pm:
It's 05-10067EB
Thanks! Much easier than downloading 3.
12.21.2008 5:06pm
Dave N (mail):
6 Republican appointees (Alex Kozinski, Andrew Kleinfeld, Consuelo M. Callahan, Carlos T. Bea, Milan D. Smith, Jr., and Sandra S. Ikuta). 5 Democratic appointees (Susan P.
Graber, Kim M. Wardlaw, William A. Fletcher, Richard A. Paez, Marsha S.Berzon).

I am not predicting a 6-5 vote based on the en banc court's composition, but I do find it interesting.
12.21.2008 10:01pm
Dave N (mail):
One of the other en banc cases is United States v. Hinkson--05-30303. Hinkson involves a guy convicted of soliciting someone else to kill a federal judge, among other people.

What makes the case interesting to me, from a procedural standpoint, is the Circuit Judge Richard Tallman presided over the trial and denied a mistrial.

The Ninth Circuit panel (Hug, W. Fletcher, and McKeown) split 2-1 in ruling Judge Tallman erred (McKeown dissented). Thus, the split among 9th Circuit Judges is ALREADY 2-2. And the 11-judge panel get to break the tie.

Addingg to that, Judge Fletcher is also on the en banc panel (which is perfectly allowable under 9th Circuit rules). I think it is fair to predict that Judge Fletcher will either write the majority en banc decision or vigorously dissent.
12.21.2008 10:48pm

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