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The Ninth Circuit, which is not quite as bad as it used to be, has granted rehearing en banc in United States v. Nevils, 06-50485, a sufficiency-of-evidence case in which the panel split 2-1 for the defendant.

If the defendant was found asleep in a drug den with one gun on his lap, another leaning against his leg, and drugs and cash within arm's reach, can a jury infer knowing possession? Judges Paez and Nelson thought not. See Judge Bybee's dissent for an explanation of the title of this post.


Now that was a remarkable read.

"Judges" Paez and Nelson. It's too bad this one isn't going to be reversed summarily by the Supreme Court.

I'll settle for reversal by the en banc court.

Yes, Kent, but then Judge Bybee won't have the opportunity to be cited four times by the Supreme Court a la Judge Sutton.

The really bad thing about this is that such a vote by "Judge" Paez was eminently predictable. The ABA, the Senate and President Clinton really dropped the ball here.

The opinion vaguely reminded my of a District Judge's conclusion sometime in the 90s that fleeing from the police was reasonable in that particular neighborhood. One would have thought that the distinguished jurists in the majority would have remembered that little brouhaha.

It will be interesting to see what the en banc panel makeup/vote will be. I hope Reinhardt is on the en banc panel, so long as he's in the minority. His dissenting opinion would be an interesting read.

Does FN7 make a lot of sense? Seems that the gov't either met its burden or not. The introduction of "innocence" seems to unnecessarily complicate this case.

The analysis of the inculpatory explanations vice exculpatory explanation seems to harken back to that discredited doctrine that the prosecution must negate every reasonable hypothesis of innocence in circumstantial evidence cases.

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