Tuesday, April 18, 2006

US v. Ferryman, No. 05-30081 (4-18-06). This is a "safety valve" case. The defendant plead guilty to possessing with intent to distribute an amount of marijuana that triggered a mandatory minimum. He also admitted to possessing eleven firearms, strategically placed around the house, six of which were loaded. He argues though that the weapons weren't possessed in connection with the drug deal. The district court scoffed at the argument, and the 9th guffawed as well. The 9th placed the burden on defendant to prove they weren't in connection. He tried to shift it to the gov't, but the 9th took aim at the gun enhancement in the drug guideline. The language placed on the defendant the burden to show that it was clearly improbable that the possessed weapon wasn't tied to the offense and it was applicable here. The 9th also took note that the place had been burglared previously, probably related to the drugs, and that was the reason for the weapons, dismissing the proffered reason that the defendant was protecting his son who had been beaten up previously by gang members.

US v. Elliot, No. 04-10571 (4-18-06). What was defense counsel thinking? He was representing a defendant in a controlled Fed Ex drug delivery case. His defense was that the defendant didn't arrange for the package to be delivered, and a witness was called to testify that he had arranged for the package to be dropped off. The judge expressed concern about the witness's fifth amendment rights, and asked counsel, "does he have a lawyer." The counsel dead-panned and said "not now." Well, on cross it turned out that the defense counsel had represented the witness on other matters, and on this matter concerning supposed "strange phone calls" he had received. Counsel stonewalled the court's inquiries, and defendant waived the conflict, but wouldn't give details. The witness's testimony was subsequently stricken when he did get a lawyer, and then invoked. The court then declared a mistrial for manifest necessity. Defendant argued for double jeopardy. The 9th didn't have much patience for the shenanigans of defense counsel, and the conflict presented. It found the court acted appropriately, and thoughtfully. The 9th also state that defense counsel was trying to set the court up for a reversal on appeal, and that at the time, it appeared that the defendant's right to present a defense was in tatters because of the confusion and the sticking of the witness. The 9th made plain that defense counsel had a conflict, and had to get off. No double jeopardy occurred.

This opinion has good language about conflicts arising from prior representation, and can be cited when such an issue arises. The 9th makes clear that previous representation of a witness is a clear conflict.


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