Sunday, November 22, 2009

Case o' The Week: Five Federal Circuits, Jumping on a Bed, Three Fell Off and Bumped Their Heads - Mahan

In Mahan, the Ninth creates a new rule and joins five other federal circuits that have held exchanging guns for drugs is using firearms "in furtherance" of drug trafficking, in violation of 18 USC § 924(c). United States v.William Mahan, __ F.3d __, 2009 WL 3807100 (9th Cir. Nov. 16, 2009), decision available here.

(Or, arguably, the Ninth has joined two other federal circuits that have so held in a published decision . . . .)

Players: Decision by Judge O’Scannlain (left), joined by Judge N. Randy Smith and Senior District Judge Wolle.

Facts: Oregonians Zane and Shawn offered to sell stolen guns to defendant Mahan. Id. at *1. The three smoked some meth while discussing the deal, then settled on trading the guns for 1/8th of an ounce of meth and $700. Id. Among other things, Mahan was convicted at trial for 18 USC § 924(c), possession of a gun “in furtherance” of a drug transaction. Id. Mahan’s Rule 29 motion was denied.

Issue(s): “We must decide whether an individual who trades drugs for guns possesses the firearms ‘in furtherance of’ his drug trafficking offense.’” Id. at *1.

Held: “Five other courts of appeals have confronted cases factually similar to this one, and all have either decided or assumed without deciding that a defendant who, like Mahan, received firearms in exchange for drugs possesses those firearms ‘in furtherance of’ a drug trafficking offense.” Id. at *2. “These cases demonstrate the common sense proposition that when one accepts a gun in exchange for drugs, the gun is an integral part of the drug sale because without the gun - the ‘currency’ for the purchase - the drug sale would not take place.” Id. at *3. “In light of the unanimity and clarity of our sister circuits’ precedent, we decline Mahan’s invitation to create a circuit split, and hold that a defendant who accepts firearms in exchange for drugs possesses the firearms ‘in furtherance of’ a drug trafficking offense.” Id. (emphasis added).

Of Note: The Mahan Court suggests that five other circuits have unanimously adopted this panel’s new § 924(c) rule. That suggestion bears further scrutiny. Mahan cites the unpublished Fourth Circuit decision, Boyd. Boyd, however, was issued in 2006: before memorandum dispositions became “cite-able” under new Federal Rule of Appellate Procedure 32.1. Indeed, the Fourth Circuit “disfavors” citation of its unpublished decisions issued before January 1, 2007. See U.S. Ct. App. 4th Cir. Rule 32.1.

The cited, two-page First Circuit memorandum disposition, Dolliver, was at least issued after the inane new rule that permits the citation of mem dispos as of January 1, 2007. First Circuit Rule of Appellate Procedure 32.1.0, however, limits the citation of mem dispos for their “persuasive” value and explains that they are not binding precedent. (That rule also requires parties to note that these decisions are “unpublished” in their briefs – a fact not mentioned in Mahan).

Of the three circuits with published decisions on this § 924(c) issue, one has “assumed without deciding” that guns traded for drugs are used “in furtherance” of a trafficking offense.

In short, only two circuits have held in a published decision that this type of “guns-for-drugs” trade is a sufficient nexus to support a § 924(c) conviction. The Mahan panel hangs the Ninth Circuit’s new § 924(c) rule on the “unanimity and clarity of our sister circuitsprecedent”: not quite as impressive a wall of authority as it appears at first glance.

How to Use: This is an infrequent fact pattern, but if it comes up an objection is worthwhile. As discussed above, the phalanx of circuit authority may not be as formidable as suggested in the Mahan opinion, and the Supreme Court may end up clarifying the real meaning of “in furtherance” in the Section 924(c) statute.

For Further Reading: The citation of memorandum dispositions is bad for indigent defense. The classic mem dispo quickly affirms a conviction or denial of a motion in a down-and-dirty document with little analysis and few facts. Bringing these bastard children of the judiciary into the case law clan infects clean jurisprudence and principled analysis with sloppy (and often, defense-hostile) reasoning.

For a contrary view, see the interesting article on the “new” rule allowing citation of mem dispos – and defenders’ responses. Stephen R. Barnett, The Dog that Did Not Bark: No-Citation Rules, Judicial Conference Rulemaking, and Federal Public Defenders, 62 Wash. & Lee Rev. 1491 (2005), available here.

Image of the Hon. Diarmuid O'Scannlain from

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


Labels: , , ,


Post a Comment

<< Home