U.S. v. Thongsy, No. 08-30198 (8-17-09). Just because one curls up with a loaded firearm, does it mean possession in furtherance of a drug crime? It sure does when the weapon is on the defendant's sleeping bag (between two others), in a tent, surrounded by the wilderness and a large scale marijuana growing operation. Moreover, surveillance photos show the defendant in a certain shirt, which, when seized in the nighttime raid, was in the tent with a magazine in a pocket. The 9th (Ikuta joined by W. Fletcher and Bea) had little trouble finding sufficient evidence to support the jury verdict. The trial court did err in the jury instruction. The court instructed the jury that the weapon had to be possessed "during and in relation to the crime" as opposed to "in furtherance of." The error, however, was harmless.

U.S. v. Alba-Flores, No. 08-50135 (8-18-09). The defendant was serving a term of probation when the offense occurred, but the term was terminated before sentencing. The probation term prevented "safety valve" consideration, and exposed him to a 10-year mandatory minimum. Defense counsel got the state public defender to move for early termination. The state court changed the misdemeanor to an infraction, and then dismissed. It was nine days short of one year. The district court, though, did not give safety valve credit because it reasoned that the present offense occurred while serving probation that was three years. The 9th agreed (Fernandez joined by N. Smith). The reasoning was that the defendant was under a countable sentence, and that his efforts to get the sentence changed was somehow disingenuous. The 9th distinguished U.S. v. Mejia, 559 F.3d 1113 (9th Cir. 2009), because, there, the change in the prior sentence occurred before the instant offense. Dissenting, Kozinski takes the majority to task, accusing them of misreading Mejia, misinterpreting the Guidelines language, trying to interpret what the Mejia court supposedly really meant, and creating an unnecessary circuit conflict. Kozinski took issue with the sense of disingenuous, as the judges involved all wanted to do something for this hapless defendant.

U.S. v. Hector, No. 08-30271 (8-18-09). The issue is who gets to determine which conviction to vacate when a defendant has been convicted of multiplicitous offenses that violate double jeopardy. The defendant was convicted of both receipt and possession of child porn. Under Davenport, 519 F.3d 940 (9th Cir. 2008), this is multiplicitous when it involves the same images. The prosecutor wanted the court to sentence first, and then the prosecutor would dismiss one count. The court said that it should have the discretion. The defendant wanted to be sentenced for possession as opposed to receipt (the latter has a five-year mandatory and a higher guideline range). The court was going to sentence on the count it felt more appropriate; the prosecutor then moved to vacate the possession and the court sentenced on receipt. On appeal, the 9th (O'Scannlain joined by Goodwin and Fisher) reasoned that it should be the court that had discretion. There is discussion of a Rule 48 dismissal, and the deference shown to prosecutorial decision, but that only occurs when the defendant agrees with the dismissal. The court has the power to protect the defendant's rights and the discretion, as in plea withdrawals, to exercise it. The case is remanded for the court to exercise its own discretion. An interesting case for those charting separation of power doctrines.

U.S. v. Reyes, No. 08-10047 (8-18-09). The 9th (Schroeder joined by Reinhardt and Pollak) vacate a conviction and remand for a new trial based on prosecutorial misconduct in making a false assertion argument. The case was a complicated securities prosecution, with a focus on backdating stock options. Did the CEO know or did he rely on the financial department? If the financial dept knew, then the defendant's defense was bolstered; if the financial department did not know, then the CEO had to take the fall. The prosecutor knew that some witnesses from financial had stated that the department knew. The witnesses were high up in the management team, and had given statements to the FBI and in a parallel civil proceeding. One government witness, far down the line, had said that the department did not know, but she was unable to speak as to others, and later recanted. Given the special responsibilities of the government, it was misconduct to argue for no knowledge. This was the crux of the case, and the conviction had to be vacated. As for a co-defendant, the 9th agreed to vacate the sentencing because the court erred in assessing obstruction of justice points. The obstruction supposedly was her defense counsel's severance motion based on a declaration that the CEO defendant would give exculpatory testimony. When severed, the CEO was not called. The defense counsel said it was this decision; the court, though, punished the client. This was error.