United States, Plaintiff--Appellee, v. Josef K., Defendant--Appellant: No. 25-1883: Opinion.

• Author: Kozinski, Alex
• Position: THE APPEAL

FOR PUBLICATION

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES Plaintiff--Appellee, v. JOSEF K., Defendant--Appellant.

No. 25-1883

OPINION

Appeal from the United States District Court Hermann Bendemann, District Judge, Presiding

Argued and Submitted July 3, 1926

Filed May 1, 2005

Before: Alex K., * Bucephalus and Godot, ** Circuit Judges.

Opinion by Judge Alex K. ***

COUNSEL

Odradek, for appellant.

Public Prosecutor Hasterer, Office of Prosecution, for appellee.

OPINION

ALEX K., Circuit Judge:

FACTS (1)

The late Josef K., a thirty-something male, claims that "[s]omeone must have slandered [him], for one morning, without having done anything truly wrong, he was arrested." T.R. 3.

The procedural history of this case is complicated and patchy, but what is clear is that, after being rude to his arresting officers, appellant came late to his initial interrogation and disrupted the proceedings. (2) He refused to attend further interrogations, submitted no evidence or brief in his defense and repeatedly accused judicial authorities of corruption and incompetence. (3)

He was apparently convicted, though the conviction does not appear in the record. On the eve of his thirty-first birthday, K. was taken to a quarry by two guards and executed. "With failing sight K. saw how the men drew near his face, leaning cheek-to-cheek to observe the verdict. 'Like a dog!' he said; it seemed as though the shame was to outlive him." T.R. 231. As it has.

K. appeals, alleging unlawful arrest, inadequate notice, due process violations, systemic corruption, ineffective assistance of counsel and actual innocence. We affirm. See, e.g., State v. Samsa, 1991 Ohio App. LEXIS 2483, at *1 (May 29, 1991) ("We affirm.").

ANALYSIS

1. The government claims the case was mooted by appellant's death. But appellant casts aspersions on the legitimacy of the legal proceedings against him, and his calumny cannot be left unrebutted. Not contra Spencer v. Kemna, 523 U.S. 1, 16 n.8 (1998) (damage to reputation of mere parties does not defeat mootness).

   The government seems to argue, though incoherently, that we lack jurisdiction because the events in question took place abroad. K. responds that the Supreme Court's rulings in Sosa v. Alvarez-Machain, 124 S. Ct. 2739 (2004), and Republic of Austria v. Altmann, 124 S. Ct. 2240 (2004), give us jurisdiction over events anywhere, anytime. We are inclined to take K.'s word for it, as we can't bring ourselves to slog through over eighty pages of the Supreme Court Reporter. (4)

2. K. challenges the authority of the officers to enter his apartment, claiming that he was unlawfully "assault[ed] ... in his own lodgings." T.R. 6. But K. waived this argument when he got out of bed and told the arresting officer he was going to ask his landlady about the disturbance. The record clearly shows that K. "realized at once that he shouldn't have spoken aloud, and that by doing so he had, in a sense, acknowledged the stranger's right to oversee his actions." T.R. 4; cf. Christian v. United States, 394 A.2d 1, 38 (D.C. 1978) (per curiam) ("[T]he defendant can waive, through his silence, a constitutional right....").

   K. urges that we ignore his oversight because "that didn't seem important at the moment." T.R. 4. But police actions are to be judged by their objective reasonableness at the time, not in hindsight or according to defendant's shifting mental state. See Florida v. Jimeno, 500 U.S. 248, 249 (1991) (objective reasonableness under the circumstances); cf. In re Samsa, 86 B.R. 863, 865 (Bankr. W.D. Pa. 1988) (court must consider law at time of transaction).

   Even though he was under arrest, K. was still allowed to "carry[] on [his] profession" and was not "hindered in the course of [his] ordinary life." T.R. 17. (5) Also, K. admitted that the arrest "ma[de him] laugh," T.R. 47, and that, to the extent the incident tended to "spread the news of [his] arrest [and] damage [his] public reputation, and in particular to undermine [his] position at the bank," "none of this met with the slightest success." T.R. 48. Without cognizable harm, K. lacks standing to contest his arrest. De minimis non curat lex.

3. While we're on the subject of trifles, we address K.'s claim that he was...