Thursday, March 10, 2016

Four FPD wins:

1.  US v. Lemus, No 14-50355 (3-2-16)(M. Smith with Reinhardt and Paez). This concerns a drug deal in which no drugs were exchanged. The 9th affirmed the conviction for PWID, but vacated the finding there was more than 50 grams and remanded for resentencing.

The defendant arranged to sell drugs to an informant. The deal was for ounces but at the meeting, the defendant wanted to sell a pound. The deal fell through. The defendant was subsequently arrested at his house. The FBI may have wanted their pound of meth, but got their pound of flesh with a charge of trafficking of more than 50 grams of meth.  Yet, no actual meth was found.

The 9th found sufficient evidence to support the conviction. Statements and corroborating evidence were sufficient. However, no evidence was produced as to the purity of the meth which went to the amount. No purity meant that the amount was unsupported. The government could not look to other drug sales for corroboration.

Congrats to Michael Tanaka of the FPD Calif Central (L.A.) office.

The decision is here:

2. US v. Werle, No. 14-30189 (3-3-16)(Wilken with Fletcher and Fisher).  Does violence run riot?  Not under a categorical approach.  The 9th here vacated an ACCA 15 year mandatory sentence because a prior conviction for "felony riot" under Wash. Rev. Code 9A.84.010 is overinclusive and indivisible.  The statute requires three or more persons to use or threaten force, or in any way participate in the use of such force, against a person or property.  If an actor has a deadly weapon, it is a felony.  The 9th held that under the categorical approach, the definition of "force" was overinclusive as it did not involve a definition of force requiring use of force, or physical force against a person.  The defendant could have possessed a deadly weapon, and may have been an actor, but that did not make it certain that force would be used.  The 9th reversed and remanded for a non-ACCA resentencing.

Congrats to Matt Campbell, Fed Defenders of E. Wash. (Spokane) for the win. 

The decision is here:

3.  US v. Lara, No. 14-50120 (3-3-16)(Fletcher with Paez and Berzon).  The 9th reversed a denial of suppression of a warrantless, suspicionless search of a defendant's cell phone.  Importantly, the defendant was under probation at the time for drug trafficking.  The probation officers showed up at his house, announced that it was a search, looked at his cell phone, and viewed weapons in a photo.  This led to a second search of the phone, and then a tracking down of weapons.  All of this evidence should have been suppressed because the search was not reasonable.  Yes, the 9th acknowledged, the probationer was under probation, and had agreed to search of property and person, including containers and items, but this did not reach cell phones.  Other cases could be distinguished (Knight) because that involved the search of property of violent offenders.  Here, the reach of law enforcement exceeded the grasp of reasonableness.

Congrats to Alexandra Yates, AFPD in Cal Central (L.A.) for the win.

The decision is here:

4. Tarango v. McDaniel, No. 13-17071 (3-3-16)(Murguia with Fisher; dissent by Rawlinson).  The 9th reversed the denial of a habeas petition and remanded for an evidentiary hearing.  The issue was whether a juror, the sole hold-out, was intimidated by a police car tailing him for 7 miles after the court was recessed.  The identity of the hold-out juror was known to law enforcement.  The tailing of the juror, if true and intentional, may have violated the petitioner's right to a fair and impartial jury.

Dissenting, Rawlinson raises AEDPA deference, and argues that there is no binding Supreme Court precedent.

Congrats to AFPD Ryan Norwood of Nev. (Las Vegas).

The decision is here:


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