Jenkins

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 06-50049 Plaintiff-Appellant, v.  D.C. No.

CR-05-00698-RTB

SHARON ANN JENKINS,

ORDER

Defendant-Appellee.  Filed March 4, 2008

Before: William C. Canby, Jr. and Sidney R. Thomas, Circuit Judges, and Suzanne B. Conlon,* District Judge.

Order; Dissent by Chief Judge Kozinski; Dissent by Judge O’Scannlain

ORDER

Judge Thomas voted to deny the petition for rehearing en banc and Judge Canby so recommended. Judge Conlon rec- ommended granting the petition for rehearing en banc.

The petition for en banc rehearing has been circulated to the full court. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed R. App. P. 35.

*The Honorable Suzanne B. Conlon, Senior United States District Judge for the Northern District of Illinois, sitting by designation.

1971 1972 UNITED STATES v. JENKINS The petition for rehearing en banc is DENIED.

KOZINSKI, Chief Judge, dissenting from the order…

Order; Dissent by Chief KOZINKSI; Dissent by Judge O’SCANNLAIN.

ORDER

Judge Thomas voted to deny the petition for rehearing en banc and Judge Canby so recommended. Judge Conlon recommended granting the petition for rehearing en banc.

The petition for en banc rehearing has been circulated to the full court. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonre-cused active judges in favor of en banc consideration. Fed R.App. P. 35.

The petition for rehearing en banc is DENIED.

dissenting from the order denying the petition for rehearing en banc:

I join every word of Judge O’Scannlain’s well-reasoned dissent, but I want to call particular attention to footnote 2. As Judge O’Scannlain points out, there is no such thing as a “smell test” when it comes to detecting prosecutorial misconduct, as such a test would eviscerate the broad power that the Constitution gives to the executive branch to make prosecutorial decisions. A test based on the olfactory apparatus of each district judge, rather than on well-defined and closely cabined legal standards, would give the district courts far too much say over who gets prosecuted and when. That would be wholly inconsistent with our role as impartial adjudicators, and with the prosecutor’s independent authority to bring charges.

dissenting from the denial of rehearing en banc,

The opinion in this case holds that the Fifth Amendment bars prosecutors from charging a crime to which a defendant unequivocally admits in the course of a trial for an unrelated offense. Because it contradicts our precedent and creates a split with our sister circuits, I respectfully dissent from our order rejecting rehearing en banc.

I

On October 19, 2004, Sharon Ann Jenkins drove a car holding two undocumented aliens into the United States from Mexico. United States v. Jenkins, 504 F.3d 694, 697-98 (9th Cir.2007). Upon being questioned at the border, and before any Miranda warnings apparently were provided to her, Jenkins admitted that the passengers in the car were undocumented aliens, and that she had been hired to bring them into the United States. Id. at 697-98 , 700 n. 2. She was thereupon released. Id. at 702 . The next day, Jenkins once again attempted to drive into the United States from Mexico with two undocumented aliens. Id. at 698 . Again she was stopped at the border and, this time *724 after Miranda warnings were issued, she admitted that she had been hired to smuggle the two aliens into the United States. Id. at…