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Notes -
Gonzales v. Trevino
8-1
This is a first amendment case (debatably).
The key question upon which the per curiam opinion rejects it is whether Gonzales has to point to specific instances of people not being prosecuted by similar conduct, and the court rules that no, that isn't required. That there are no past cases over a long enough duration is evidence enough. It does not address the second question of whether Nieves applies only to split-second arrests.
Alito's concurrence is lengthy compared to the per curiam: five versus sixteen pages. He provides a more thorough analysis of what exactly is going on in Nieves and argues that therefore it should include split-second arrests.
Kavanaugh's agrees with the opinion as a matter of law, but thinks it not really relevant to the specific case.
Jackson's which Sotomayor signs onto, says that there are other bases by which they can decide that it is retaliatory arrest, such as unusual procedures, and that they don't want to exclude those.
Thomas argues that she needs to show a lack of probable cause, and that the whole understanding that everyone's operating under is wrong, because they're using the wrong common law analogues.
Chiaverini v. City of Napoleon
6-3
This is a fourth amendment case (debatably).
In addition to what was said above, it should be noted that they all agree against the 6th circuit's claim that there is a categorical rule that if any outstanding charges remain, it's automatically okay for them to have been seized. The court (with Kagan writing) decides to leave it at that, and return it to the 6th circuit to reevaluate between three different possible courses: first, that such a warrant is tainted by the presence of a single bad charge, and so the seizure is illegitimate (this is about seizures because it's a fourth amendment claim). Second, that it should be using a but-for: would the judge have detained the person if the bad charge were not included. And third, could the judge have done so. The court leaves it at that, and lets the Sixth circuit decide.
Thomas (joined by Alito) argues that malicious prosecution claims can't be based on the fourth amendment. He rejects Thompson, a recent case on the matter. He argues that it's fairly different from an unreasonable-seizure claim, which is what the fourth amendment is about. Malice and reasonableness are different questions, as are seizures and prosecutions.
Gorsuch, like Thomas, argues that this shouldn't really be a fourth amendment thing. Contra what @theCircuitWeakman says above, Gorsuch does affirm that there is a constitutional basis for this, but he would put it in the due process clause of the fourteenth amendment solely, instead of incorporation of the fourth amendment in that clause.
Diaz v. United States
6-3
In this case, there was testimony given in a trial that most drug-runners know that there are drugs in their vehicle. The question is whether that's okay, or whether that's too close to asserting things about the state of mind of Diaz, as that's not allowed. Thomas, with most of the court, argues that it's fine, as it isn't making a claim about all couriers (and so wouldn't be a claim about Diaz's state of mind).
Jackson agrees, and writes a concurrence to argue that "Rule 704(b) is party agnostic," saying that neither side can witness directly to mental state, but both can present evidence, over its likelihood, as the defendant is a member of some group.
Gorsuch, joined by Sotomayor and Kagan, argues that this goes to far, and, in effect is about the mental state. At one point he mentions the question of what if it were 99%, instead of merely saying most, or if it were talking about something that were generally the case, instead of true of most. That is, there are stronger statements than most, that are less strong than all, that might seems problematic.
Moore v. U.S.
I still need to get around to reading it; it's over 80 pages between everything. It's on taxes.
The tax case dealt with whether Section 965 (a deemed repatriation of certain foreign corporations) was constitutional. The big question here was on the realization requirement and this case was really a staking horse for a wealth tax. While the court upheld 965 on the grounds that income was in fact realized and then attributed to the shareholders, it took great pains to suggest no a wealth tax is a direct tax and therefore would require capitation.
The dissent argues that this tax is unlike most other taxes in that it taxes income of the foreign corporation earned in prior years; indeed in years where the owner that owned the stock on a particular date may not have owned the stock. The dissent would say there can only be a constructive recipient (allegedly different but probably in practice similar to the majority’s attribution) when there are close fsctors of control. The dissent — if they knew about tax — could analogize — between CFC taxation and PFIC taxation.
The problem with the dissent is that problem seems more like an as applied v facial challenge. In truth, I think the dissent didn’t like that congress effectively wrote a rule that imposed taxes on CFC’s income going back potentially 30 years. There is more than a hint of retroactivity though the challengers dropped this argument in their cert petition.
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Great write-up as usual.
I've thought a bit about Diaz, and one issue that doesn't seem to have been addressed by anyone (probably because it wasn't raised by the parties, if I had to guess) is why the government even needed expert testimony on this point in the first place. It sounds like the expert's opinion was "Drug cartels typically don't hide half a million dollars worth of drugs in the car of some unwitting rando and then just hope that it makes it across the border and that they can find a way to retrieve it." This seems like ordinary, common-sense reasoning, moreso than specialized technical knowledge that the jury needed an expert to weigh in on. I get suspicious when the government brings in an "expert" to testify about something that should be obvious to everyone; it feels like they're trying to take advantage of the "expert witness" designation to put extra weight behind the government's theory of the case, rather than to explain some complicated topic or express some scientific opinion that jurors ordinarily wouldn't understand.
By the same token, however, the prejudice from eliciting such everyday-common-sense views from an expert witness is fairly small; they're just expressing an argument that the prosecutor would have made anyway and that the jury likely would have accepted. So while it may be overreaching by the prosecutor, it's probably harmless in most cases.
Diaz's claim during trial was that she'd gone south of the border to meet a new boyfriend, and he'd let her borrow his car. If you believed this defense, the theory is less 'just hope' and more 'meet at predesignated point'. These sort of scams do exist, sometimes even at higher values, and indeed it's actually a bit of a struggle for courts to handle the border cases where the mule may have been willfully blind or where the arguments are more borderline.
((That said, for this specific case, Diaz seemed to have made up almost all of this, most of it not terribly credibly, including the boyfriend that supposedly loaded the car up to start with.))
So the need for an expert witness makes more sense than at first glance -- there's a lot about general drug trafficking approaches that aren't common knowledge or would be counterintuitive to common knowledge. And the question of what tactics drug traffickers use is the sort of thing that would be better considered under expert witness testimony, and could have been more appropriately discussed without a lot of nudge-and-winking about the defendant.
I'm still not a huge fan, but that's more because the scope of domain expertise is ugly. The fed here was testifying as an expert on gang trafficking of drugs, and reading through a search affidavit from an unrelated case gives a pretty lengthy and impressive personal record as part of investigatory task forces. It's... less compelling as a matter of his expertise on the full breadth of drug trafficking tactics, especially for the sort of broad statistical analysis he's giving here.
((Though the rule applies both ways, at least in this specific case, as Jackson points out; Diaz's defense brought in a car mechanic who was allow to testify about how most people wouldn't notice the modifications to the car here. But I'm skeptical that the average decision is fully evenhanded, and Jackson's asides about other defenses leave me a little unsated given how weak the protections against dueling experts are.))
((But in turn, that wasn't the question raised before the court, here.))
I remember hearing about this case (this was like 20 years ago; I may be wrong on a couple of details) where an Australian couple "won" a "free getaway" to Indonesia with suitcases provided. They noticed that the suitcases were significantly heavier when provided for the return trip than they'd been on the outgoing trip, and alerted the local police who pulled them apart and indeed found they were full of drugs. Thankfully, the couple didn't end up getting shot anyway, though IIRC the police thought about it.
Yeah, it's been a long-standing issue, sometimes resulting in serious convictions where courts believed that the 'mule' should have been more suspicious.
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I'm not a criminal lawyer, but I suspect they had to put on the expert because they bore the burden of proof on intent. If they didn't present any evidence of intent, they would presumably lose the criminal equivalent of a post-trial JMOL motion based on lack of evidence.
They may have been worried about that, but if so I don't think their fears were realistic. Unless there is a confession, prosecutors almost never have direct evidence of intent. So they typically rely on circumstantial evidence. In this case, Diaz had actual possession of the car; she told an implausible story about the car belonging to her boyfriend, but she claimed not to know his address or phone number; and she refused to answer questions about the multiple phones found in her car. I think those circumstances would have been sufficient to prove intent, without needing a mind-reading expert. But the government may well have chosen to err on the side of caution--although, in so doing, they created an appellate issue they easily could have lost.
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