Wednesday, November 28, 2012

U.S. v. Munguia, No. 10-50253 (11-27-12) (Fletcher with Reinhardt; concurrence by Breyer, D.J. ND Ca)
The 9th reverses convictions for conspiracy to possess and possession of pseudoephedrine, a drug used to manufacture meth.  The reversal was for an erroneous jury instruction on knowledge.  The instruction given was to view the evidence of whether the defendant knew or had reasonable cause to believe the drug would be used to make meth from the vantage of an objective reasonable person.  the vantage should be from the defendant.  The evidence was to be assessed not from a hypothetical reasonable person from someone standing in the defendant's shoes.  The 9th's precedent established this, and the instruction given was erroneous.  It was not harmless because the trail was whether she knew, as testified by her ex boyfriend turned gov't cooperator, or whether, as an abused girlfriend, with limited education and language skills, she didn't know.  The concurrence emphasized that the decision was not an open door to all marginal evidence, but the evidence had to be relevant, and not prejudicial.  The 9th sidestepped the issue of whether an expert could testify as to the defendant's mindset as an abused girlfriend.  The court could decide in light of the jury instruction and evidence at trial.

U.S. v. Wahchumwah, No. 11-30101 (11-27-12) (M. Smith with Kozinski and Tashima)
The 9th held two sets of counts as multiplicitous and ordered the court to vacate one conviction of the two pairs.  The multiplicitous convictions arose from selling Golden Eagle parts (tail feathers) in violation of the Eagle Protection Act and the Lacey Act (counts 2 and 3) and from the offering to sell and then selling eagle plumes under the Eagle Protection Act.  Blockberger requires that the statutes each have additional elements.  These did not


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