US v. Rosenthal, No. 03-10307 (4-26-06). This is the celebrated medical marijuana case, where the feds prosecuted a medicinal marijuana grower in Oakland. The 9th rejected the defenses of acting under state/local authority, and the estoppel arguments, but granted relief because of juror misconduct. A juror consulted with an attorney "friend" on the eve of rendering a verdict. The attorney told her that she must follow the court's instructions or risk getting into trouble. The district court denied the motion for new trial based on this, but the 9th held that this contact amounted to extraneous evidence as opposed to ex parte contact with a juror. The 9th found that the contact here might have had a reasonable possibility that it affected the verdict. The extraneous evidence was a discussion on a substantive legal issue, akin to intent. The gov't moreover did not rebut the presumption of evidence.

US v. Arreola, No. 04-10504 (4-26-06). The 9th concludes that "possesses" and "uses or carries" are two means of committing a single offense and not two separate offenses under 924(c). The defendant here was arrested in a SUV during a drug buy. The gun was in the glove compartment, and he was way in the back. The gov't and court gave instructions that he possessed and carried the weapon, which mixed and matched two separate clauses. The defendant argues that this serves as an escape clause because of two different offenses inappropriately melded.The language of the statute is parsed under UCO Oil, considering (1) language, (2) legislative history and statutory context, (3) type of conduct; and (4) appropriateness of multiple punishments. Applying these factors to this case, the 9th holds that these are two acts in a common offense. This is so even though "uses and carries" is temporal and physical while "possess" focuses on 'intent." Still, it is difficult to separate the two. There was no error on the jury verdict form and the unanimity requirement is not violated. The 9th acknowledges this conflicts with the 6th Cir., but feels that all the UCO Oil factors weigh for an interpretation of acts in a single offense.

Davis v. Woodford, No. 05-55164 (4-27-06). The State must live by the bargain it struck. In this California "three strike" case, the state agreed that a petitioner's eight robbery convictions as only "one strike." It was a specific promise made in 1986 binds the state; the law may count the eight as separate incidents, but the state's promise made is a debt unpaid when the state tries now to cash in the eight.