United States v. Brooks, No. 13-10146 (9th Cir. 2014)
Annotate this CaseDefendant was convicted of one count of conspiracy to possess marijuana with intent to distribute and two counts of possession of marijuana with intent to distribute. On appeal, defendant argued that the admission of out-of-court statements by a nontestifying post officer supervisor and photographs of a seized package that was the subject of the statements violated his rights under the Confrontation Clause. The court concluded that the photographs did not violate the Confrontation Clause because they were not witnesses against defendant; the statements violated defendant's rights because the postal supervisor did not testify and there is no contention of unavailability or that defendant had a prior opportunity to cross-examine the supervisor; and the error was not harmless. The court rejected defendant's remaining contentions. Accordingly, the court affirmed in part, reversed in part, and remanded.
Court Description: Criminal Law. The panel affirmed the defendant’s convictions for possession with intent to distribute marijuana on November 17, 2011, and conspiracy to possess marijuana with intent to distribute; reversed his conviction for possession with intent to distribute marijuana on November 9, 2011; and remanded to the district court to determine whether resentencing is appropriate. The panel held that admission of photographs of a parcel seized at the post office did not violate the Confrontation Clause because the photographs were not “witnesses” against the defendant. The panel held that admission of statements by a postal supervisor, who did not testify, violated the Confrontation Clause because the statements were testimonial and offered for their truth, and there is no contention of unavailability or that the defendant had a prior opportunity to cross-examine the supervisor. The panel exercised its discretion to overlook the government’s waiver as to harmlessness, and held that the error was harmless as to the November 17 possession-with- intent- to-distribute conviction and the conspiracy conviction. The panel declined to find the error harmless as to the November 9 count. The panel rejected as foreclosed the defendant’s contention that the district court erred by denying his motion to suppress evidence obtained by warrantless GPS monitoring, and concluded that the district court did not abuse its discretion by denying the defendant a minor participant adjustment at sentencing. The panel left it for the district court to determine on remand whether the defendant’s sentence for the remaining convictions should be adjusted, and dismissed as moot the defendant’s motion to remand based on changes to the Sentencing Guidelines.
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