Argued and Submitted En Banc, San Francisco, California September 19, 2013.
Appeal from the United States District Court for the Southern District of California. D.C. No. 3:10-cr-02803-DMS-1. Dana M. Sabraw, District Judge, Presiding.
The en banc court granted the United States Attorney's motion to reverse a conviction for knowing possession of marijuana with intent to distribute, vacate the sentence, and remand to the district court, in a case in which 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 had reconsidered their position regarding the propriety of the prosecutor's argument in rebuttal during closing argument in the district court.
The en banc court commended the United States Attorney, emphasizing that " The prosecutor's job isn't just to win, but to win fairly, staying well within the rules."
Judge N.R. Smith concurred in the result only.
John C. Lemon (argued), San Diego, California, 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, California, for Plaintiff-Appellee.
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. Order by Judge Wardlaw.
WARDLAW, Circuit Judge:
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 ...