US v. Arnt, No. 05-50124 (1-25-07). The 9th (B. Fletcher joined by Fernandez and Graber) vacates a voluntary manslaughter conviction and remands for a new trial based on the failure to give an involuntary manslaughter instruction. The defendant was tried under the Military Extra-territorial Act, 18 USC 3261-67, for the stabbing of her husband on an Air Force base in Turkey. Under a plain error review, the 9th finds the indictment sufficient despite failure to allege that she resided with her husband. The jury was so instructed. The failure to allege in the indictment does not strip the court of jurisdiction. Moreover, there was sufficient evidence to so find at trial. The 9th did find that the court should have given the lesser included. In a two-step analysis, the 9th identifies involuntary manslaughter as a lesser of murder; in the second step, the 9th found that there was some evidence supporting the theory that the killing was accidental, or a result of negligence (knife wound's path, drunkenness of victim, intent).

Congrats to AFPD Jonathan Libby, C.D. Ca (Los Angeles) for the win.

US v. Hector, No. 05-50270 (1-25-07). The 9th (McKeown joined by Hall and Wardlaw) reverses the granting of a new trial and the judgment of acquittal. The 9th found that the district court's granting of suppression of evdience for failure to serve a warrant was too severe, and that under the facts here, where the defendant was on probation, any failure to serve the warrant was too attenuated from controlling misconduct. There was also sufficient evidence for a jury to find that the defendant possessed a weapon during drug trafficking.