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«Terri Wood, OSB #88332 Law Office of Terri Wood, P.C. 730 Van Buren Street Eugene, Oregon 97402 541-484-4171 Fax: 541-485-5923 Email: ...»

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Terri Wood, OSB #88332

Law Office of Terri Wood, P.C.

730 Van Buren Street

Eugene, Oregon 97402

541-484-4171

Fax: 541-485-5923

Email: twood@callatg.com

Attorney for William Mahan

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

UNITED STATES OF AMERICA,

CR. No. 06-60045-01-AA

Plaintiff,

-VSMEMORANDUM OF LAW IN SUPPORT OF

WILLIAM JOHN MAHAN, DEFENDANT’S MOTION FOR

RECONSIDERATION OR, ALTERNATIVELY,

Defendant MOTION FOR JUDGMENT OF ACQUITTAL ON COUNT 3 I. SU M M ARY OF AR GU ME NT.

The Ninth Circuit has interpreted the phrase “possession in furtherance” found in 18 U.S.C. §924(c) to require an “intent to use” the firearm to promote the drug trafficking crime. See cases cited in Section V, §§A, infra. Watson v.

United States, 128 S.Ct. 579 (2007), held that a defendant who trades his MEMORANDUM OF LAW Page 1 drugs for another’s firearm does not “use” the firearm under §924(c).

Therefore, a defendant does not, as a matter of law post-Watson, “intend to use” a firearm by receiving it in trade for his drugs; and evidence establishing nothing more than that type of exchange, beyond a reasonable doubt, is insufficient to prove a violation of the “possession in furtherance” prong of §924(c).

II. ST ATE ME NT O F TH E C ASE.

As the case headed towards trial for certain, the Government obtained a Superseding Indictment charging Mr. Mahan with three crimes: Felon in Possession of numerous firearms, allegedly subject to the Armed Career Criminal Act (Count 1); Possession with Intent to Distribute Methamphetamine (Count 2);

and (Count 3) that he “possessed, in furtherance of the drug trafficking crime set forth in Count 2,” one or more of the same firearms set forth in Court 1. All Counts alleged the same operative dates.

The Government’s trial memorandum included the following discussion of

its view of the facts and the law concerning Count 31:

“To establish a defendant possessed a firearm or firearms ‘in furtherance’ of a drug crime, the Government must prove the defendant intended to use the firearm to promote or to facilitate his possession of methamphetamine with intent to distribute it, but does not need to prove he actually used the firearm 1This Memorandum repeats only portions of that discussion deemed relevant herein; the Court may take judicial notice of the entire Trial Memorandum.

MEMORANDUM OF LAW Page 2 or firearms to advance his drug crime.” Govt. Trial Memo, p. 21(citations to case law omitted).

“At trial, the Government intends to prove Defendant... paid Mr. Copley cash and an eight of an ounce of methamphetamine for the firearms stolen in the burglary.” “Defendant may move to dismiss Count 3 of the Superseding Indictment by arguing that it is not a violation of 18 U.S.C. §924(c) for a person to trade illicit drugs for firearms.” “Filing such a motion would be prudent because the courts of appeal disagree on whether trading drugs for a firearm constitutes ‘use’ of a firearm within the meaning of §924(c), and the Supreme Court has recently granted certiorari in Watson v. United States, 127 S.Ct. 1371 (Feb. 26, 2007), to resolve the circuit conflict.” “Nevertheless, such dismissal motion should be denied because the Ninth Circuit in United States v. Ramirez-Rangel, 103 F.3d 1501, 1506 (9th Cir. 1997), joined the majority of the circuits holding that trading drugs for firearms does violate the ‘use’ provision of 18 U.S.C. §924(c).” Govt. Trial Memo, pp. 23-24 (citations to case law on p.24, note 6, omitted).

The Government’s Trial Memorandum then discussed how the same facts—that Mahan agreed to and did exchange his drugs as partial payment for the firearms—established that he possessed the firearms in furtherance of the drug trafficking crime. See pp. 26-29. “Because the Defendant furthered, advanced or helped forward his distribution of methamphetamine by negotiating

–  –  –

the ‘possession’ provision of 18 U.S.C. §924(c).” Id., at p. 29.

On June 25, 2007, the defense took the Government’s advice and filed a Motion to Dismiss Count 3, relying on the “circuit split” authorities cited in the Government’s trial memorandum, and the grant of certiorari in Watson. Trial commenced the next day, with the Motion pending. On the last day of trial, after both parties had rested, but before closing argument, defense counsel asked the Court “to dismiss Count 3 based on the Watson case that’s currently in front of the U.S. Supreme Court.” The Court inquired if the Government had “anything to add,” and hearing, “No, Your Honor,” ruled: “That [motion] will be denied.” Trial Transcript, Vol. IV, p. 592.

In its closing argument, the Government told the jury:

“Specifically in this case, the government’s theory under the law provides that if one exchanges drugs for firearms or firearms for illicit drugs, that can be in the furtherance of a drug trafficking crime.” Trial transcript, Vol. IV, p. 594.





The prosecutor asked the jury that Mahan “be held responsible for taking those firearms and exchanging them for drugs.” Id., p. 595. “[H]e accepted these guns and paid for it with some cash and some meth,” Id., p. 598.

The defense argued that the Government’s witnesses were not credible, such that their testimony—uncorroborated by any forensic evidence or the police ever finding firearms or ammunition in Mahan’s possession—did not amount to proof beyond a reasonable doubt. The defense advanced no other theory to the jury as to why Mahan was not guilty of Count 3.

–  –  –

29, 2007. The defense filed no post-trial motions concerning the Watson issue.

While the case was pending sentencing, on November 20, 2007, the Court allowed Mr. Mahan’s trial counsel to withdraw, and appointed current defense counsel.

The Supreme Court decided Watson on December 10, 2007, holding that a defendant who trades his drugs for a firearm does not “use” the firearm so as to constitute a violation of §924(c)’s “carry or use” prong. The Court made note of the Government’s argument that a drug dealer who takes a firearm in exchange for his drugs will be subject to prosecution under the “possession” prong of §924(c); then stated: “This view may or may not prevail, and we do not speak to it today,” 128 S.Ct. at 585-86.

Current defense counsel spoke with Mahan’s trial counsel, Lynn Shepard, regarding the Watson decision, inquiring if the issue had been raised, since nothing was found upon review of the case file materials she had provided. Ms.

Shepard thought she had raised the issue, but could not recall any specifics.

Current counsel then reviewed electronically filed case records, including the Government’s Trial Memorandum and Defendant’s Motion To Dismiss Count 3, and ordered the trial transcripts, which were completed on January 31, 2008.

After reviewing the trial transcripts, current defense counsel contacted the court reporter to inquire whether there was any earlier hearing on the Motion To Dismiss, other than what is set forth above, p. 592, Trial Transcript, and confirmed there was none. Concurrent with working on mitigation investigation

–  –  –

The defense’s written Motion To Dismiss Count 3, filed the day before trial, relied on the authorities cited in the Government’s Trial Memorandum, but asked this Court to reach the opposite conclusion: that simply trading one’s drugs for firearms could NOT, as a matter of law, constitute a violation of 18 U.S.C. §924(c), under either the “carry or use” prong or the “possessed in furtherance” prong. When the motion was heard at the conclusion of the evidence adduced at trial—although called a “motion to dismiss”—it was a motion for judgment of acquittal on Count 3, based on insufficient evidence, as a matter of law, to constitute a violation of §924(c). The motion was timely made, and denied by the Court.

–  –  –

In Arizona v. Manypenny, 672 F.2d 761, 765-66 (9th Cir. 1982), cert.

denied, 459 U.S. 850, the Ninth Circuit held that district courts have inherent power to reconsider a timely motion for judgment of acquittal made during trial, premised on insufficiency of the evidence, when post-trial the court, which still retains jurisdiction of the case, decides that it erred in denying the motion.

In Manypenny, the district court reversed its earlier ruling in the course of ruling on other timely post-trial motions that advanced other theories for a new

–  –  –

district court lacked jurisdiction to reconsider its earlier ruling on the motion for judgment of acquittal, because the defense had failed to renew the motion within 7 days of the jury verdict as required by Rule 29, F.R.C.P. Id., at 764-66.

This holding has been called into question by a later decision of the United States Supreme Court, Carlisle v. United States, 517 U.S. 416 (1996), but not expressly overruled.

–  –  –

At the time this Court decided the Motion To Dismiss Count 3, there was little cause to give it any serious consideration, in light of Ramirez-Rangel, supra, and a majority of the Circuits holding that bartering drugs for firearms constituted “use” under §924(c). Furthermore, Ramirez-Rangel derived from the Supreme Court’s holding in Smith v. United States, 508 U.S. 223, 239 (1993), “that a criminal who trades his firearm for drugs ‘uses’ it during and in relation to a drug trafficking offense”. With this precedent, it surely seemed likely that Watson would resolve the circuit split in favor of the majority view.

Given the holding in Watson; its recognition of the split of opinion in Smith, 128 S.Ct. at 585; Justice Ginsburg’s concurrence calling for Smith to be overruled, 128 S.Ct. at 586; Watson’s disinclination to endorse, even in dicta, the Government’s argument that barter cases fall squarely within the “possessed in furtherance” prong, 128 S.Ct. at 585-86; and the lack of any published decision by the Ninth Circuit adopting the Government’s argument to date, this

–  –  –

Treating the instant, alternative Motion for Judgment of Acquittal as either a renewal of the motion by the defense at the close of the evidence, or a motion made now for the first time, the Federal Rules of Criminal Procedure do not bar this Court from reaching the merits. Rule 29(c), F.R.Cr.P., provides in

pertinent part:

–  –  –

The Advisory Committee Notes to the 2005 Amendments to this rule state: “[U]nder Rule 45(b)(1)(B), if for some reason the defendant fails to file the underlying motion within the specified time, the court may nonetheless consider that untimely motion if the court determines that the failure to file it on time was the result of excusable neglect.”

–  –  –

It is proper to look to civil case law in defining “excusable neglect” under the Federal Rules of Criminal Procedure. See, e.g., United States v. Roberts, 978 F.2d 17 (Ist Cir. 1992).

–  –  –

courts to “apply[ ] a liberal definition of ‘excusable neglect’ and suggested a broad range of factors that might properly be considered in attending to the task.” In re Magouirk, 693 F.2d 948, 951 (9th Cir.1982) (discussing excusable neglect in connection with former Bankruptcy Rule 924). 978 F.2d. at 24, n.10.

Before the Supreme Court's ruling in Pioneer Investment Services Co. v.

Brunswick Assocs. Ltd. Partnership, 507 U.S. 380 (1993), the courts of appeals were divided on how to interpret the phrase “excusable neglect,” which appears in many statutes and rules as a basis for relief from a filing a deadline. Some courts of appeals limited recognition of “excusable neglect” to cases where the party seeking relief was impeded by circumstances beyond its control. Other courts of appeals were willing to excuse delays in good faith and that had not prejudiced the opposing parties or hampered the administration of the court.

See Id. at 387 n. 3 (outlining the split).

In Pioneer, the Court repudiated the former, hard-line approach. “[T]he ‘excusable neglect’ standard,” the Court held, “is not limited to situations where the failure to timely file is due to circumstances beyond the control of the filer.” 507 U.S. at 391. The approach instead should be “an equitable one, taking account of all relevant circumstances surrounding the party's omission.” Id., at

395. The Court set forth the following factors to be considered: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on judicial proceedings; (3) the reason for the delay, including whether it

–  –  –

acted in good faith. Id.

In Briones v. Rivera Hotel, 116 F.3d 379, 382 n.2 (9th Cir. 1997), the Court recognized that the four factors enumerated in Pioneer “sets forth an equitable ‘framework’ for determining the question of excusable neglect in particular cases, and we will ordinarily examine all of the circumstances involved rather than holding that any single circumstance in isolation compels a particular result regardless of the other factors.”

–  –  –

If the Government does not object to the Court’s determination of this Motion on the merits as being untimely under Rule 29, the Court need not decide whether the delay is excusable neglect. See, Eberhart v. United States, 546 U.S.

12, 18-19 (2005)(explaining that Rule 29’s time limits are “claims processing rules” that are waived unless the Government objects to a post-verdict motion for judgment of acquittal as untimely made).

Because the Government’s position on this issue is unknown, the defense will make brief argument here, reserving the right to respond more fully if the Government objects to the Court reaching the merits.



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