United States v. Timothy Johnson

MEMORANDUM

Timothy Johnson appeals the district court’s denial of his motion for a new trial under Federal Rule of Criminal Procedure 33. Johnson filed the motion after he was convicted on two counts of making a false statement with respect to information required to be kept by a federally licensed firearms dealer in violation of 18 U.S.C. § 924 (a)(1)(A), but before we affirmed his conviction on direct appeal. See United States v. Johnson, 680 F.3d 1140 (9th Cir. 2012). We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

The district court properly denied his motion for a new trial based on the government’s warrantless use of a global positioning system (“GPS”) device during its investigation of his crimes. Although the Supreme Court’s ruling in United States v. Jones, — U.S. —, 132 S.Ct. 945 , 181 L.Ed.2d 911 (2012), applied retroactively to Jones’s case because it issued while his conviction was “pending on direct review,” Griffith v. Kentucky, 479 U.S. 314, 328 , 107 S.Ct. 708 , 93 L.Ed.2d 649 (1987), the Griffith rule is “subject- ... to established principles of waiver.” Shea v. Louisiana, 470 U.S. 51 , 58 n. 4, 105 S.Ct. 1065 , 84 L.Ed.2d 38 (1985). Johnson…