Friday, August 18, 2006

US v. Hartz, No. 05-30134 (8-17-06). The 9th affirms a conviction for robbery, use of a firearm in a crime of violence, and felon in possession. the 9th held that the stopping of the vehicle in which the defendant was a passenger was valid because of incongruences between the truck's condition and the new license plates (the truck had been reported stolen). Seeing a firearm on the dash also was a valid reason for an officer to be a bit concern, and the Terry stop of the officer that lead to finding drug paraphernalia was also okay, which then lead to a list of stolen items on a full search. The more interesting issue related to whether there was constructive amendment of the indictment and a fatal variance. The verdict forms were not specific as to which guns were used or possessed. the 9th held that there wasn't constructive amendment, and that though there was a variance between the indictment and instruction, and the identification of the guns, there was no showing of prejudice.

US v. Young, )5-30313 (8-17-06). Couldn't the 9th have affirmed the granting of a Rule 29? After all, they are so rare, that one would think that it should be preserved. But no, the 9th (O'Scannlain) reversed the Rule 29 notwithstanding the verdict on a 922(g)(8) prosecution (having a gun while under a domestic violence no contact order). The 9th emphatically stressed it wouldn't look at the validity of the state's issuance of such an order. Turning to the main issue of notice, the 9th held that the defendant was notified of both hearings at issue here, and had an opportunity to be present and participate. His counsel, who wasn't present, was aware, and the defendant had been put on notice that the order issued, and he could not have weapons.


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