Unpublished Decisions
U.S. v. Richard, 2009 WL 3367632 (10/21/09) (unpub'd) - An officer's opinion, based on his extensive experience, that individuals involved in drug activity typically keep evidence of that activity in their homes, is enough to establish probable cause to search a suspect's home. Evidence of continuous involvement with drugs over the course of a year and a half ending two weeks before the warrant issued was not too stale and established probable cause the suspect was a drug user in possession of a firearm.
Without any real discussion, the 10th holds the prohibition against habitual drug users possessing firearms did not run afoul of the 2d Amendment, even though the Heller Court did not specifically mention in dicta, as it did with respect to felons, that such a prohibition would be okay. No physical nexus is required between the firearm possession and the habitual use under 18 U.S.C. § 922(g)(3). It is enough that the defendant is an habitual user during a time period when the defendant possessed a firearm. The defendant need not be an "addict" as defined in DSM to be an habitual user. The statute was not vague as applied and there was sufficient evidence of the requisite nexus and the defendant's habitual [daily] use.
It was not a violation of due process for the officers to refuse to permit the defendant to tape the officers' interrogation. While, as the d. ct. found, the officers' conduct was "high-handed and arrogant" and, as the 10th says, the officers' conduct was "not commendable," they did not have the bad faith required to warrant dismissal of the case. Due process does not require complete good faith. Most troublingly, without the defendant's statements during interrogation, the government would not have been able to prove the defendant was an habitual user and the three officers who participated in the interrogation had three different versions of what the defendant said. Only one of those versions was especially incriminatory.
Akers v. Weinshienk, 2009 WL 3403183 (10/23/09) (unpub'd) - 28 U.S.C. § 455(b)(5)(i) required the judge to recuse herself because she was a defendant in the case. The error was not harmless because the judge dismissed the case on discretionary, not mandatory, grounds.
Without any real discussion, the 10th holds the prohibition against habitual drug users possessing firearms did not run afoul of the 2d Amendment, even though the Heller Court did not specifically mention in dicta, as it did with respect to felons, that such a prohibition would be okay. No physical nexus is required between the firearm possession and the habitual use under 18 U.S.C. § 922(g)(3). It is enough that the defendant is an habitual user during a time period when the defendant possessed a firearm. The defendant need not be an "addict" as defined in DSM to be an habitual user. The statute was not vague as applied and there was sufficient evidence of the requisite nexus and the defendant's habitual [daily] use.
It was not a violation of due process for the officers to refuse to permit the defendant to tape the officers' interrogation. While, as the d. ct. found, the officers' conduct was "high-handed and arrogant" and, as the 10th says, the officers' conduct was "not commendable," they did not have the bad faith required to warrant dismissal of the case. Due process does not require complete good faith. Most troublingly, without the defendant's statements during interrogation, the government would not have been able to prove the defendant was an habitual user and the three officers who participated in the interrogation had three different versions of what the defendant said. Only one of those versions was especially incriminatory.
Akers v. Weinshienk, 2009 WL 3403183 (10/23/09) (unpub'd) - 28 U.S.C. § 455(b)(5)(i) required the judge to recuse herself because she was a defendant in the case. The error was not harmless because the judge dismissed the case on discretionary, not mandatory, grounds.
posted by Anonymous at 10:25 AM
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