Liberal hero whose nationwide conspiracy unleashed hundreds of unknown threats on the American public claims that the ones who really got the law wrong are the 3 federal judges who unanimously upheld his smuggling ring’s felony convictions. Oh yeah, and so did the rest of the judges on the notoriously liberal U.S. ‘9th Circus’ Court of Appeals

**Having lost their case before a  standard 3-judge panel, Appellants then failed to convince judges on the Court of Appeals that their case warranted En Banc review. The current version of Federal Rule of Appellate Procedure 35 is not, for this blogpost, materially different from the version of FRAP 35 that was in effect at the time appellants asked the Court of Appeals to review their case En Banc:
En Banc Determination | Federal Rules of Appellate Procedure | LII / Legal Information Institute

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“Appellants were convicted of masterminding and running a modern-day underground railroad that smuggled Central American natives across the Mexican border with Arizona.1 Beginning in Mexico, various appellants directed illegal aliens to several Arizona churches that operated as self-described sanctuaries. From Arizona, appellants sent many of these illegal aliens to Chicago, Illinois, where they were subsequently dispersed throughout the United States to so-called safehouses. Appellants were sentenced to varying terms of probation; none received jail terms.”

[. . .]

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A caveat and a brief note from this lawyer:

Out of respect for the reader’s time and because this particular court decision from what many consider to be the most liberal activist of the U.S. Courts of Appeal, is not only top-shelf legal reasoning but also an easy-to-read primer about what American law is and what it was never intended to be, I’ll be brief but blunt.

It’s been my privilege over the years to represent fellow human beings who’ve been accused of – and who are all too frequently guilty of – having committed crimes that tear at the fabric of American society. Murder, drugs, weapons offenses, sex crimes, conspiracy, fraud and theft, and unspeakable crimes against America’s children. Whether adjudicated guilty or innocent, these are the men and women we banish forever more into the dark shadows of shame and, if we get our way, into an obscurity from which neither they nor their concerns will ever again darken our thoughts.

This case and the bizarre celebrity that still surround it reflect a civic morality that – by pure arrogance – has been turned on its head. Not one of my horrible, bad, evil, dangerous clients has or ever will come even close to unleashing the incalculable hidden, festering hell on my country and on those tasked with defending it, that these felons have.

No matter how ugly the crime, no matter how sobering an autopsy report or an FD-302, not one of my clients is, was, or likely will be an enemy of the State. An enemy of the American people.

PLEASE NOTE that I’ve not reviewed the trial transcript in this case. But it’s fair to assume that if those who masterminded and ran this nation-wide criminal conspiracy to smuggle foreign nationals past those tasked with defending this nation’s borders – if they had offered any admissible evidence at trial of their ability and inclination to screen for potential national security threats the hundreds of foreign nationals they were unleashing on the American people, then the Court’s opinion would have said something about it.

It doesn’t.

[NOTE RE CONTENT THAT FOLLOWS THIS BLOGPOST: Related to at least one – and likely more – of the felons whose criminal convictions the 9th Circuit upholds in this decision is an excerpt from my 20 October 2018 letter of formal withdrawal from The Episcopal Church. Much of that letter concerns a forthcoming civil defamation lawsuit against the Episcopal Church and its LGBT allies and supporters for torts motivated by animus against me because I refuse to distance myself from –  and I refuse to apologize for – authoring a 2004 article for my fellow lawyers in which I present a legal argument for amending the U.S. Constitution to define and limit “marriage” to one thing: a [consensual] union between one man and one woman.

The excerpt that follows this blogpost identifies another motive for the torts and crimes that make a civil damages lawsuit necessary:  the all-too-cozy relationship between The Episcopal Church and those who unleashed – and who even now  encourage others to unleash – on the American people the kinds of clandestine and incalculable threats that left the U.S. Department of Justice no choice but to prosecute a bunch of smugglers who just refused to quit endangering the American people.]

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Here’s an excerpt from that portion of the Circuit Court of Appeal’s opinion that analyzes and rejects the appellants’ claims that International Law lets them smuggle folks past those tasked with securing our borders.

65 The only relevant convention or treaty appellants identify is the United Nations Protocol Relating to the Status of Refugees, to which the United States is a party. Congress intended the definition of “refugee” in the 1980 Refugee Act to be interpreted in conformance with the Protocol. Cardoza-Fonseca, 107 S.Ct. at 1216. The United Nations has produced a Handbook which provides “significant guidance in construing the Protocol, to which Congress sought to conform.” Id. at 1217 n. 22 (referring to the Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status (Geneva 1979)). But neither the Handbook nor the Protocol have the force of law, as “the determination of refugee status … is incumbent upon the Contracting State in whose territory the refugee finds himself.” Id. (quoting the Handbook). The Protocol was not intended to be self-executing. INS v. Stevic, 467 U.S. 407, 428 n. 22, 104 S.Ct. 2489, 2500 n. 22, 81 L.Ed.2d 321 (1984).
66 As the Protocol is not a self-executing treaty having the force of law, it is only helpful as a guide to Congress’s statutory intent in enacting the 1980 Refugee Act. Consequently, the district court correctly concluded that the Protocol is not “other law” under section 1324. Furthermore, the Protocol provides no evidence that Congress intended to permit aliens to reside in the United States without presenting themselves to immigration authorities. Quite the contrary. Indeed, appellants acknowledge that the Protocol, incorporating Article 31(1) of the 1951 Convention, requires that an alien refugee present himself to immigration authorities “without delay” following illegal entry into a foreign land. The district court therefore properly rejected appellants’ argument that the Act does not require presentment following an illegal entry.
67 Finally, appellants argue that the international law norms of temporary refuge, humanitarian initiative, and nonrefoulement are self-executing and binding sources of law justifying appellants’ actions. First, the Immigration Act’s definition of “law” does not include international norms; only conventions and treaties. Second, these norms have nothing whatsoever to say about presentment following illegal entry, which the Protocol expressly requires. Appellants’ position on these matters is meritless.
. . .

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The complete opinion of the U.S. Court of Appeals is available at :

United States of America, Plaintiff-Appellee, v. Maria Del Socorro Pardo Viuda De Aguilar, Defendant-Appellant; United States of America, Plaintiff-Appellee, v. Anthony Clark, A/k/a Antonio Clark, Defendant-Appellant; United States of America, Plaintiff-Appellee, v. Sister Darlene Nicgorski, School Sisters of Saint Francis, Defendant-Appellant; United States of America, Plaintiff-Appellee, v. Philip M. Willis-Conger, a/k/a Phillip M. Conger, Defendant-Appellant; United States of America, Plaintiff-Appellee, v. John M. Fife, Defendant-Appellant; United States of America, Plaintiff-Appellee, v. Margaret Jean Hutchison, a/k/a Peggy Hutchison, Defendant-Appellant; United States of America, Plaintiff-Appellee, v. Wendy Lewin, Defendant-Appellant; United States of America, Plaintiff-Appellee, v. Ramon Dagoberto Quinones, Defendant-Appellant
Date: April 14, 1989
Citation: 883 F.2d 662 (9th Cir. 1989)

https://law.justia.com/cases/federal/appellate-courts/F2/883/662/350496/

[Following paragraph is copied from para 154 of the Court’s opinion:]

“Appellants repeatedly assail the government for failing to provide evidence to show that it has an overriding interest that cannot accommodate a first amendment exemption. The proposition that the government has a compelling interest in regulating its border hardly needs testimonial documentation. The Court “has long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.” Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210, 73 S.Ct. 625, 628, 97 L.Ed. 956 (1953); see also Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339, 29 S.Ct. 671, 676, 53 L.Ed. 1013 (1909); Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1478, 52 L.Ed.2d 50 (1977).] (emphasis added).

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The following language from the U.S. Court of Appeals decision in this case is excerpted in segments, each of which is unedited, from:

Links to full opinion appear above and below these excerpts.

. . .

50 The district court’s instruction was proper. Section 1324 prevents the bringing in, transporting, or harboring of any alien “not duly admitted by an immigration officer or not lawfully entitled to enter or reside within the [United States] under the terms of this chapter or any other law relating to immigration.” Appellants’ requested instruction, that refugees are lawfully entitled to enter and reside in the United States, improperly implies that an alien is entitled to enter and reside here without complying with the procedural formalities of the immigration laws.
. . .
55 Appellants’ principal argument is that no asylum application is necessary to render an alien lawfully entitled to enter or reside in the United States. “Thus, a person’s status as a refugee does not depend on whether that status has received official acknowledgment; an alien is a refugee under the law before he is officially granted asylum.” The district court relied on Fifth Circuit precedent to reject this proposition. In United States v. Pereira-Pineda, 721 F.2d 137, 139 (5th Cir.1983), the court held that “[t]he mere possibility that [an alien] may file asylum applications at some point in the future, and thus be allowed to remain at liberty under bond or parole while their right to asylum is determined, does not make them–from the moment they enter this country–entitled to ‘reside’ here for the purpose of section 1324(a)(2).” The district court below, as noted, instructed the jury that where an alien had filed an application for asylum and had been processed and released, appellants could not be convicted of transporting or harboring because the alien was lawfully entitled to reside in the United States.
. . .

Finally, the court rejects appellants’ contention that international law entitled the aliens to reside in the United States without presenting themselves to immigration authorities and filing applications for political asylum. Appellants succinctly describe their international law claim: “[V]iolations by the United States of its obligations under the 1967 [U.N. Refugee] Protocol excused the refugees being assisted by appellants from presenting themselves to the INS and established ‘good cause’ for their illegal entry and presence.”

 

63 Appellants offer no authority for this court’s ability to force the government to conform to supposed international law obligations. “[I]n enacting statutes, Congress is not bound by international law … [;i]f it chooses to do so, it may legislate [contrary to] the limits posed by international law.” United States v. Pinto-Mejia, 720 F.2d 248, 259 (2d Cir.1983), modified on other grounds, 728 F.2d 142 (2d Cir.1984).
64 For appellants’ argument to have any coherence, they must contend that the Executive Branch has refused to comply with binding international law obligations. The question then arises whether any such obligations have the force of law. Appellants note that section 1324 provides that an alien is judged to be lawfully entitled to enter or reside in the United States “under the terms of this chapter or any other law relating to the immigration or expulsion of aliens.” Appellants contend that the “any other law” language incorporates international law. Indeed, the Immigration and Nationality Act, 8 U.S.C. Sec. 1101(a)(17), defines law as “all laws, conventions, and treaties of the United States relating to immigration, exclusion, deportation or expulsion of aliens.”
65 The only relevant convention or treaty appellants identify is the United Nations Protocol Relating to the Status of Refugees, to which the United States is a party. Congress intended the definition of “refugee” in the 1980 Refugee Act to be interpreted in conformance with the Protocol. Cardoza-Fonseca, 107 S.Ct. at 1216. The United Nations has produced a Handbook which provides “significant guidance in construing the Protocol, to which Congress sought to conform.” Id. at 1217 n. 22 (referring to the Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status (Geneva 1979)). But neither the Handbook nor the Protocol have the force of law, as “the determination of refugee status … is incumbent upon the Contracting State in whose territory the refugee finds himself.” Id. (quoting the Handbook). The Protocol was not intended to be self-executing. INS v. Stevic, 467 U.S. 407, 428 n. 22, 104 S.Ct. 2489, 2500 n. 22, 81 L.Ed.2d 321 (1984).
66 As the Protocol is not a self-executing treaty having the force of law, it is only helpful as a guide to Congress’s statutory intent in enacting the 1980 Refugee Act. Consequently, the district court correctly concluded that the Protocol is not “other law” under section 1324. Furthermore, the Protocol provides no evidence that Congress intended to permit aliens to reside in the United States without presenting themselves to immigration authorities. Quite the contrary. Indeed, appellants acknowledge that the Protocol, incorporating Article 31(1) of the 1951 Convention, requires that an alien refugee present himself to immigration authorities “without delay” following illegal entry into a foreign land. The district court therefore properly rejected appellants’ argument that the Act does not require presentment following an illegal entry.
67 Finally, appellants argue that the international law norms of temporary refuge, humanitarian initiative, and nonrefoulement are self-executing and binding sources of law justifying appellants’ actions. First, the Immigration Act’s definition of “law” does not include international norms; only conventions and treaties. Second, these norms have nothing whatsoever to say about presentment following illegal entry, which the Protocol expressly requires. Appellants’ position on these matters is meritless.
. . .

Appellants also argue that the trial court erred by rejecting their suggested jury instruction that “[t]ransporting a person who one knows to be an illegal alien out of purely humanitarian concern is not a crime.” Appellants cite United States v. Moreno, 561 F.2d 1321 (9th Cir.1977), as authorizing this instruction.

107 In Moreno, the court held that a foreman of an agricultural concern, transporting illegal aliens as part of his ordinary and required duties, was only remotely acting in furtherance of violation of the law. The Moreno court emphasized that the act of transportation must be directly and substantially related to furthering the illegal alien’s presence. The court hypothesized that “[b]ased upon purely humanitarian concern, the transportation of a known undocumented alien to a hospital following an injury or illness does not appear to come within the purview of Sec. 1324(a)(2).” 561 F.2d at 1322 n. 3.
108 Nothing in the Moreno court’s dicta suggests that it is proper to instruct the jury that humanitarian initiative is a complete defense to a transportation charge. Instead, the court sought to identify another instance of transportation which was only incidentally related to furthering the alien’s presence in this country. Appellants’ various acts of transportation are hardly incidentally related to furthering the aliens’ illegal status. Appellants transported the aliens throughout the country as part of their plan to shelter illegal aliens out of the INS’s grasp.23

 

Appellants are confusing intent and motive. So long as appellants intended to directly or substantially further the alien’s illegal presence, it is irrelevant that they did so with a religious motive. See United States v. Moylan, 417 F.2d 1002, 1004 (4th Cir.1969), cert. denied, 397 U.S. 910, 90 S.Ct. 908, 25 L.Ed.2d 91 (1970).

109 Appellants next argue that their religious motivation in transporting the illegal aliens would negate the requisite intent to directly or substantially further the alien’s presence in the United States. They conclude: “Proof that the [appellants’] transportation was not intended to further the alien’s illegal presence, but to fulfill the [appellants’] religious commitment to assist those in need, would thus constitute a defense to [section 1324(a)(2) ].”

110 Appellants are confusing intent and motive. So long as appellants intended to directly or substantially further the alien’s illegal presence, it is irrelevant that they did so with a religious motive. See United States v. Moylan, 417 F.2d 1002, 1004 (4th Cir.1969), cert. denied, 397 U.S. 910, 90 S.Ct. 908, 25 L.Ed.2d 91 (1970).
. . .
The first amendment to the Constitution provides in part that “Congress shall make no law … prohibiting the free exercise [of religion].” U.S. Const. amend. I. Appellants contend that this amendment prevents their conviction under sections 1324 and 1325 because their sincere religious beliefs inspired them to commit the forbidden conduct. In analyzing their claim of a first amendment exemption, appellants urge the following examination: (1) the magnitude of burden these laws impose on their religious beliefs; (2) the compelling nature of the government’s interest; and (3) the possibility of accommodating a religious exemption without impeding the government’s interest. Brief of Appellants 269 (citing EEOC v. Fremont Christian School, 781 F.2d 1362, 1367 (9th Cir.1986); Callahan v. Woods, 736 F.2d 1269, 1273 (9th Cir.1984)).
The government, on the other hand, presses for a less stringent test, arguing that “[t]he Supreme Court has never extended the Yoder-type balancing analysis beyond the context of essentially regulatory legislation.” The Court in Wisconsin v. Yoder, 406 U.S. 205, 230, 92 S.Ct. 1526, 1540, 32 L.Ed.2d 15 (1972), notes the government, emphasized that its ruling did not involve a case in which any harm “to the public safety, peace, order, or welfare has been demonstrated or may be properly inferred.” We need not determine the degree of scrutiny that properly should be applied to this case. Even applying the most exacting scrutiny, appellants’ first amendment claim cannot withstand analysis.

150 In United States v. Merkt, 794 F.2d 950 (5th Cir.1986) (Merkt II ), cert. denied, 480 U.S. 946, 107 S.Ct. 1603, 94 L.Ed.2d 789 (1987), the Fifth Circuit confronted the claim of a first amendment exemption to sections 1324(a)(1) and (a)(2). After initially doubting the need to apply a form of strict scrutiny to defendants’ constitutional claim, the court nonetheless engaged in such an analysis and concluded that the claim lacked merit. First, the court was unconvinced that section 1324 unduly burdened defendants’ free exercise of religion, noting: “Representatives of Catholic and Methodist clergy testified at the pretrial hearing and trial. None suggested that devout Christian belief mandates .participation in the ‘sanctuary movement.’ Obviously, [defendants] could have assisted beleaguered El Salvadorans in many ways which did not affront border control laws….” Id. at 956. Second, the court found that the government had a compelling need to uniformly enforce its border control laws:

. . .

151 The statute under which [defendants] were convicted is part of a comprehensive, essential sovereign policy. We cannot engraft judicial exceptions to the illegality of transporting undocumented El Salvadorans without thereby de facto revising, for the unique benefit of El Salvadorans, the legal conditions under which they may abide in this country. This would create [chaos].

152 Third and finally, the court was unpersuaded that deportation of the aliens or confiscation of the transporters’ vehicles were less restrictive alternatives that would allow a first amendment accommodation. These alternatives, the court concluded, “would reduce [the government’s] efforts to a pitiful farce.” Id. at 957.

153 The reasoning in Merkt persuasively disposes of appellants’ constitutional claim in the present case. Unadorned, appellants’ assertions are no different from those rejected by the Fifth Circuit. Even assuming that appellants have proved that the enforcement of sections 1324 and 1325 interfered with their religious beliefs, they cannot escape the government’s overriding interest in policing its borders.

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154 Appellants repeatedly assail the government for failing to provide evidence to show that it has an overriding interest that cannot accommodate a first amendment exemption. The proposition that the government has a compelling interest in regulating its border hardly needs testimonial documentation. The Court “has long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.” Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210, 73 S.Ct. 625, 628, 97 L.Ed. 956 (1953); see also Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339, 29 S.Ct. 671, 676, 53 L.Ed. 1013 (1909); Fiallo v. Bell, 430 U.S. 787, 792, 97 S.Ct. 1473, 1478, 52 L.Ed.2d 50 (1977)
. . .
156 If the Government attempted to accommodate into its immigration policy [appellants’] religious beliefs, the Government’s efforts would result in no immigration policy at all. As testimony from [appellants’] witnesses indicated, the moral obligation to assist others crosses religious and denominational lines. These widely-held beliefs allow adherents to exercise considerable discretion and would permit religious individuals to form personal immigration policies.
. . .
158 In conclusion, appellants’ free exercise claim is without merit. The government’s interest in controlling immigration outweighs appellants’ purported religious interest,34 and an exemption would not be feasible.35 As a result, the district court did not err in denying appellants’ motion to dismiss the charges. (emphasis added by this lawyer)
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. . .

159 The government stipulated at trial that it had used undercover agents and informants since March of 1984 to infiltrate various church meetings and activities. Many of these activities occurred outside the physical boundaries of the church, and the meetings on church property routinely were open to the public and attended by the news media. The government agents observed and tape recorded appellants’ activities without a warrant; the absence of a warrant issued by a neutral magistrate is appellant’s principal objection.36
160 The government introduced three tape recordings of church meetings during trial, and the government informants testified extensively. The government conceded at trial that if the information derived from these informants was obtained illegally, its entire case would be tainted and dismissal unavoidable. While the government instructed its undercover agents and informants not to tape record overtly religious services, the government conceded at trial that the undercover agents and informants gathered information at religious events.
161 The critical aspect of appellants’ suppression argument is their suggestion that the first amendment and the fourth amendment necessarily are intertwined in the context of an informer’s infiltration of a church. Based upon first amendment principles, appellants contend that society is prepared to recognize as reasonable churchgoers’ expectations that “they could meet and worship in church free from the scrutiny of federal agents and tape recorders.” A churchgoer need not “assume[] the risk that apparent fellow worshipers are present in church not to offer homage to God but rather to gain thirty pieces of silver.”
162 Appellants’ theoretical premise is that the first amendment provides them with an additional expectation of privacy beyond that afforded by the fourth amendment. The first amendment requires this heightened expectation of privacy because a “community of trust” is the essence of a religious congregation and the ability of a person to express faith with his fellow believers “withers and dies when monitored by the state.” Appellants argue that government “spying” on religious activities necessarily chills a person’s ability to exercise freely his religious faith.
163 Appellants’ first amendment argument relies upon the principle that under certain circumstances the government’s investigation of a political organization may impermissibly burden first amendment rights. In N.A.A.C.P. v. Alabama ex rel. Patterson, 357 U.S. 449, 466, 78 S.Ct. 1163, 1174, 2 L.Ed.2d 1488 (1958), the Court concluded that the state could not compel a politically active organization to disclose its private membership lists because such disclosure would have a “deterrent effect on the free enjoyment of the right to associate.” In a similar context, the Court has stated that where “an investigation … intrudes into the area of constitutionally protected rights of speech, press, association and petition,” “an adequate foundation for inquiry must be laid before proceeding in such a manner as will substantially intrude upon and severely curtail or inhibit constitutionally protected activities or seriously interfere with similarly protected associational rights.” Gibson v. Florida Legislative Investigative Committee, 372 U.S. 539, 546, 557, 83 S.Ct. 889, 892, 899, 9 L.Ed.2d 929 (1963).
164 Although we agree with appellants that the first amendment is relevant to our inquiry in this case, “appellant[s’] allegation that evidence admitted against [them] should have been suppressed is a Fourth Amendment claim, rather than a First.” Abell v. Raines, 640 F.2d 1085, 1087 (9th Cir.1981). The constitutional issues raised herein are reviewed de novo. United States v. McConney, 728 F.2d 1195, 1202 (9th Cir.1984) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).
165* The government justifies its placement of the informants under the so-called “invited informer” or “misplaced confidence” cases, the cases permitting consensual recording of conversations without warrants. See United States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979); United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971); Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966); Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966); Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963); On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952). These cases assume that a defendant would have had a legitimate expectation of privacy in his words but for the informer’s presence. Hoffa, 385 U.S. at 301, 87 S.Ct. at 413 (“A hotel room can be the object of Fourth Amendment protection as much as a home or an office.”); Lewis, 385 U.S. at 211, 87 S.Ct. at 427 (“Without question, the home is accorded the full range of Fourth Amendment protections.”); White, 401 U.S. at 749, 91 S.Ct. at 1125 (defendant’s home).
166* In Hoffa, for example, a government informer met with defendant in his hotel suite and elsewhere. He subsequently testified about the substance of these conversations at trial. The Court found a warrant unnecessary because the informer “was in the suite by invitation, and every conversation which he heard was either directed to him or knowingly carried on in his presence.” Hoffa, 385 U.S. at 302, 87 S.Ct. at 413. In short, the Court held that the fourth amendment does not “protect[] a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.” Id.
167 In White, the government informer discussed illegal narcotics transactions with defendant in defendant’s home, the informer’s car, and a restaurant. Agents monitored these conversations using a radio receiver. The Court described Hoffa as having held that “however strongly a defendant may trust an apparent colleague, his expectations in this respect are not protected by the Fourth Amendment when it turns out that the colleague is a government agent regularly communicating with authorities.” 401 U.S. at 749, 91 S.Ct. at 1125. Accordingly, the Court upheld denial of defendant’s motion to suppress.

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168 Once it is determined that it applies, “[t]he chief remaining limitation on the ‘misplaced confidence’ doctrine appears to be that the agent or informer may not search for evidence not voluntarily revealed by the unsuspecting criminal.” Jones v. Berry, 722 F.2d 443, 447 (9th Cir.1983), cert. denied, 466 U.S. 971, 104 S.Ct. 2343, 80 L.Ed.2d 817 (1984). In Hoffa, the Court emphasized that “every conversation which [the informer] heard was either directed to him or knowingly carried on in his presence.” Hoffa, 385 U.S. at 302, 87 S.Ct. at 413. While appellants strenuously object to the application of this doctrine, they do not suggest that the undercover “agents in this case heard or saw anything that the [appellants] did not intend them to hear or see.” Jones, 722 F.2d at 447 n. 6.
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169 The invited informer doctrine is part of a greater principle of fourth amendment jurisprudence: “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Smith v. Maryland, 442 U.S. 735, 743-44, 99 S.Ct. 2577, 2581-82, 61 L.Ed.2d 220 (1979). In Smith, the Court cited Hoffa, White, and Lopez, to support its holding that the police do not need a warrant to install a pen register to record the telephone numbers dialed from a person’s private residence. Id. 442 U.S. at 744, 99 S.Ct. at 2582. The Court reasoned that in using the telephone, a person “voluntarily convey[s] numerical information to the telephone company and ‘expose[s]’ that information to its equipment in the ordinary course of business.” Id. Consequently, a person “assume[s] the risk that the [telephone] company would reveal to the police the numbers he dialed.” Id.
170 Smith also relied heavily on the Court’s prior decision in United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976), where the Court held that a person has no legitimate expectation of privacy in financial information “voluntarily conveyed to … banks and exposed to their employees in the ordinary course of business.” Id. at 442, 96 S.Ct. at 1623. Once again, the Court reiterated the rule that a person “takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government.” Id. at 443, 96 S.Ct. at 1624. This is so, reasoned the Miller Court, “even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” Id. (emphasis added). Most recently, the Court has held that the government can retrieve a person’s trash without a warrant because he voluntarily turns it over to garbage workers for collection. See California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988).
171Given this unwaivering line of precedent, it is clear that appellants’ argument that they had a legitimate expectation of privacy against state scrutiny is inimical to established fourth amendment doctrine. The Supreme Court consistently has rejected such arguments.
. . .
188 Appellants assert that privacy, trustworthiness, and confidentiality are at the very heart of many instances of free association and religious expression and communication. We do not take issue with appellants’ premise. Yet, simply precluding application of the invited informer doctrine does not assure confidentiality. Even if the government were unable to plant an undercover agent, “[t]he risk of being overheard by an eavesdropper or betrayed … is probably inherent in the conditions of human society.” Hoffa, 385 U.S. at 303, 87 S.Ct. at 414. Nothing would prevent a law abiding church-goer from telling the police that his church was being used for illegal purposes, and unless the informant’s conduct is fairly attributable to the government, the Constitution is not even implicated. See United States v. Miller, 688 F.2d 652, 657 (9th Cir.1982).
189 In addition, a fair reading of the invited informer cases teaches that their rationale inherently imposes a rather significant burden on first amendment free association rights. In approving this investigative technique, the Supreme Court unmistakably declared that persons have no expectation of privacy or confidentiality in their conversations and relations with other persons, no matter how secretive the setting. The Court has recognized that legitimate law enforcement interests require persons to take the risk that those with whom they associate may be government agents.

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Complete opinion available at:

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The Episcopal Church’s comfortable relationships with those who inflict this very same threat on the American people is among the matters identified in my 20 Oct 2018 letter of formal withdrawal from The Episcopal Church:

[added] An intentional or de facto alliance among convicted members of a late 1980’s human smuggling conspiracy – including my former boss in Tucson – who claimed God made them do it and those in the Episcopal Church who frequently make the same claim to support political activism in favor of illegal migrants seeking entry into the U.S. Neither the human smugglers whose convictions were upheld in 1989, United States v. Aguilar, 883 F.2d 662 (1989), their national networks described in the very first paragraph of the Court of Appeals’ opinion upholding their felony convictions,  https://openjurist.org/883/f2d/662  , nor my fellow Episcopalians have, as best I can tell, demonstrated or even voiced an interest in making sure that these folks don’t include those who threaten our nation’s national security. And as an August 2018 report reveals, this is a very real threat that’s raised concern and prompted action in presidential administrations both Republican and Democrat.https://cis.org/Report/Terrorist-Infiltration-Threat-Southwest-Border It’s hard for any of these folks to miss the fact that national security threats and the welfare of those tasked with defending the nation against them are matters that, more than any other issue, drive my research and publication activities.

*** Screenshot images of recent news reports are illustrative of threats that would reasonably have been among those inflicted on the United States and on those tasked with defending against infiltration from across the Southern border.

3 thoughts on “Liberal hero whose nationwide conspiracy unleashed hundreds of unknown threats on the American public claims that the ones who really got the law wrong are the 3 federal judges who unanimously upheld his smuggling ring’s felony convictions. Oh yeah, and so did the rest of the judges on the notoriously liberal U.S. ‘9th Circus’ Court of Appeals”

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