Friday, July 14, 2006

US v. Estrada, No. 05-10500 (7-14-06). Its Bastille Day, but no prisoners will be released in celebration. In this opinion, the 9th examines what "knowingly" means for mens rea in a possession of pills for meth. The defendant had the misfortune to be in a car accident that saw his camper shell turn over. There were 178 lbs of psendoephedrine, 78 gals of denatured alcohol, and other "tools of the meth trade." The truck was sold two mos later by the towing company. At trial, the gov't also introduced under FRE 404(b) the fingerprint on a lab flask recovered from a storage locker in 1994, the said flask used in the manufacture of meth. On appeal, the 9th said that "knowingly" under 841 does not require both the knowledge that the pills would be used in meth manufacture and that the pills were psendoephedia. This is controlled by US v. Lo, 447 F.3d 1212 (9th Cir. 2006), where the 9th held that there wasn't a specific intent in knowing that the pills were listed controlled substances. The 9th takes a crabbed view of plain error, where the defense counsel fought hard for an instruction that stated that the defendant had to know the pills. the next day, when the court said it would give a supplemental instruction, defense counsel said "okay." That means agreement, and so plain error (Hence: don't be nice and go along, object!). The 9th found no due process violation in the destruction of the evidence (sale of truck). The defendant could have asked for it, and the process was carried out by the towing company. More disturbing was the admission of the 1994 fingerprint. The 9th said it was okay under 404(b) because of the limiting instruction (only consider it for lack of accident blah blah blah). Still, it is a decade old, was in a storage locker, and only on a flask.


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