US v. Younger
No. 04-10206 (3-1-05). This is an appeal from felon in possession and possession with intent to distribute convictions. Defendant was caught in an apartment, reaching out a window, and a backpack was found outside with drugs and guns. Oh yes, an officer saw “a guy in blue” (the defendant was wearing blue) throw the backpack out. Despite these facts, the gov’t pushed the envelope, arguing in closing that “we know” certain things, and repeatedly referencing court rulings and the function of the court as “gatekeeper.” The 9th tisked-tisked the prosecutor, and found that the court’s sustaining of objections, admonishing of the prosecutor, and limiting instructions (all urged by defense counsel with a “Blank” stare) took care of the problem. Likewise the 9th found no problem with the “expert” testimony of a police officer about whether the number of baggies and the quantity of drugs signified a drug addict or a distributor. In an interesting discussion of what constitutes a legal request, the 9th considered whether the statement – “excuse me, if I am right, I can have a lawyer present through all this, right?” – was a request for counsel pursuant to Miranda or whether it was a restatement of a right. The 9th goes through the various permutations stemming from Davis, the Supremes case regarding what constitutes a request, and held this was a mere recitcitation of a right and not a request. Finally, the 9tyh rejected broad constitutional challenges, such as the 2nd amendment allows for felons to possess arms.