Friday, July 21, 2006

US v, Feingold, No. 05-10037 (7-21-06). The charge was distribution of a controlled substance. the defendant was a doctor. The defense was that he might have been incompetent as a physician, but he was not a pusher. 185 guilty counts later, he argues on appeal that the evidence didn't support intentional distribution. The 9th looked at the expert evidence of his acting far outside of ordinary health care, like rampant prescribing narcotics without seeing the patients, that the verdict was affirmed. The 9th also found no error in the jury instructions that describe the "ordinary care" of a physician. The case is remanded for resentencing, although, in terms of safety valve, the 9th held that the court didn't have to give it because the defendant failed to be truthful.

US v. McWeeney, No. 05-10349 (7-21-06). The 9th remands a "consent to search" case to determine whether police coercion occurred. The defendants were stopped while driving as the car had been reported stolen but returned. In stopping the car, the police asked if they could "look" in the vehicle. The 9th ruled that "look" means search, and also includes the trunk. The problem here came when the defendants were taken out of the car, and ordered to face away from the search. When one turned around to look, he was ordered to turn around and not peek. This peek may be construed as a consent with limitations (i.e. we get to observe the search). A gun was found in the car trunk. The gov't pressed for ruling that a limited consent has to be specified at the time, but the 9th didn't go there. The remand is to see if the police actions were coercive and made the consent a car. B. Fletcher dissented from the remand., She argued that the police orders were of course coercive, and no remand was necessary. the search was bad because the police prevented the defendants from observing, which was their "limitation" on the consent.


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