United States v. Maloney
| Decision Date | 28 February 2014 |
| Docket Number | No. 11–50311.,11–50311. |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. John R. MALONEY, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
John C. Lemon (argued), San Diego, CA, for Defendant–Appellant.
Laura E. Duffy, United States Attorney, Bruce R. Castetter (argued), Assistant United States Attorney, Chief, Appellate Section, Criminal Division, David P. Curnow, Assistant United States Attorney, San Diego, CA, for Plaintiff–Appellee.
Appeal from the United States District Court for the Southern District of California, Dana M. Sabraw, District Judge, Presiding. D.C. No. 3:10–cr–02803–DMS–1.
Before: ALEX KOZINSKI, Chief Judge, and HARRY PREGERSON, SIDNEY R. THOMAS, M. MARGARET McKEOWN, KIM McLANE WARDLAW, WILLIAM A. FLETCHER, RICHARD A. PAEZ, JOHNNIE B. RAWLINSON, RICHARD R. CLIFTON, N. RANDY SMITH and ANDREW D. HURWITZ, Circuit Judges.
John Maloney appeals his conviction by jury for knowing possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Maloney was stopped at a Border Patrol checkpoint in Imperial County, California, while driving a tractor-trailer with long-haul capacity. A drug detecting canine alerted to the bunk portion of the cab behind the driver's seat, where Border Patrol agents found 112 packages of marijuana containing 321.33 pounds of the substance. As is typical in these border-crossing drug trafficking cases, knowledge was the only contested element of the charge. And, like many similarly situated defendants before him, Maloney testified that he did not know there was marijuana in the cab; rather, he was duped into believing he was hired to transport a load of Clorox from Riverside, California, to Las Vegas, Nevada, drop it there, and then drive back to El Centro, California, and from there to Blythe, California, to pick up another load—a trip of approximately three to four days.
Though there was never any evidence introduced regarding whether Maloney had luggage with him on the trip, for the first time in rebuttal during closing argument, the prosecutor argued that Maloney must have lied about the details of his trip because he had no luggage with him when he was apprehended, a fact from which the jury could infer knowledge. Maloney's counsel moved for surrebuttal to counter this new argument; the trial court denied the motion. Maloney's counsel made a second motion for surrebuttal, which was also denied. Maloney's counsel next sought a mistrial, which was denied as well.1
A divided panel of our court affirmed Maloney's conviction. A majority of active, nonrecused judges voted to rehear this appeal en banc. We did so on September 19, 2013, and then took the case under submission.
On October 7, 2013, the United States Attorney for the Southern District of California, Laura Duffy, filed a Motion to Summarily Reverse the Conviction, Vacate the Sentence and Remand to the District Court. In that motion, the United States Attorney represented that she and several senior attorneys in her office had reviewed the video of the en banc oral argument and reconsidered the closing arguments made in the district court. They thereafter concluded that “no reference should have been made to luggage in rebuttal argument.” 2 The United States Attorney's Office also stated that it planned to “use the video of the [en banc] argument as a training tool to...
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