1979—President Carter appoints Harry Pregerson to the Ninth Circuit, where Pregerson will remain in active service for the next 36 years.
The newly created seat to which Carter appoints Pregerson is one of ten additional seats on the Ninth Circuit created by a 1978 judicial-expansion act. That act increased the seats on the Ninth Circuit from 13 to 23—a 77% increase. Carter will fill all of the new seats (as well as some of the old ones). By appointing so many judges like Pregerson, Carter will turn the Ninth Circuit into a notorious bastion of liberal judicial activism.
2004—In a civil-forfeiture proceeding (titled United States v. $242,484.00), Judge Rosemary Barkett dissents from the en banc Eleventh Circuit’s ruling that the government had established probable cause to believe that $242,484 in cash seized by DEA agents from airline passenger Deborah Stanford was connected to illegal drug activity. The 10-member majority rests its conclusion on the combined force of facts that include:
(1) Stanford was carrying 18,362 bills worth nearly a quarter of a million dollars and weighing some 40 pounds. Legitimate businesses generally find better, safer means of transporting large quantities of cash than stuffing it in a backpack. But other means would have generated a currency-transaction report.
(2) The bills were bundled in rubber bands in various denominations in a manner associated with drug organizations, and they were wrapped in a cellophane-type material known to be used by drug dealers to prevent discovery by drug-sniffing dogs.
(3) Stanford was traveling between New York and Miami, a known flight corridor for drug proceeds.
(4) As drug couriers often do, Stanford purchased her tickets with cash and changed her return date twice.
(5) Stanford insisted that she was unable to identify the people who gave her the cash, and she claimed not to know where she had met them and where she had stayed in New York.
(6) Stanford told conflicting stories about why she had traveled to New York, and she had no documentation to support her stories or the transfer of cash.
(7) A dog trained to detect narcotics identified the smell of narcotics from the cash in her backpack (after a hole had been poked in the cellophane wrapping).
Purporting to apply a “common sense view to the realities of normal life,” Barkett opines that these circumstances “are insufficient to find that the seized money was tied in a substantial way to an illegal drug transaction.” Alas, Barkett merely provides further compelling evidence that she has little sense, common or otherwise.