United States v. Jacob Drummondo-Farias

concurring in part and dissenting in part.

I agree with the majority that any error in precluding the defense from cross-examining Costa was harmless, and therefore concur in Section 2 of the memorandum disposition. However, I conclude that the conspiracy and distribution counts were misjoined under Rule 8(a) and that the misjoinder actually prejudiced Drummon-do-Farias. I therefore respectfully dissent from Section 1.

1. Although “Rule 8 has been ‘broadly construed in favor of initial joinder,’” United States v. Jawara, 474 F.3d 565, 573 (9th Cir.2007) (quoting United States v. Friedman, 445 F.2d 1076, 1082 (9th Cir.1971)), the Rule 8 test is not “without meaningful limits.” Id. at 579. Jawara identified six nonexhaustive factors, quoted by the majority, to consider in assessing whether the charges in an indictment were properly joined under that prong of Rule 8(a). In my view, the enumerated Jawara elements, .taken together, weigh against finding the charges are the same or similar. (The government advances no factors other than those enumerated in Jawara for consideration as to joinder.)

(1) The essential elements of the two crimes do not overlap. Although the offenses are…

FILED

NOT FOR PUBLICATION AUG 05 2015

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 14-10097

Plaintiff-Appellee, D.C. No. 1:12-cr-00174-JMS-

v.

MEMORANDUM*

JACOB DRUMMONDO-FARIAS,

Defendant-Appellant.

Appeal from the United States District Court for the District of Hawaii J. Michael Seabright, District Judge, Presiding

Argued and Submitted June 9, 2015 Honolulu, Hawaii

Before: WARDLAW, BERZON, and OWENS, Circuit Judges.

Jacob Drummondo-Farias (“Drummondo”) appeals his conviction of

conspiracy to distribute and possess with intent to distribute methamphetamine, in

violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A). We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. 1. The conspiracy and distribution counts were properly joined as “offenses

. . . of the same or similar character.” See Fed. R. Crim. P. 8(a); United States v.

Rousseau, 257 F.3d 925, 932 (9th Cir.…

MEMORANDUM *

Jacob Drummondo-Farias (“Drummon-do”) appeals his conviction of conspiracy to distribute and possess with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 846 , 841(a)(1), and 841(b)(1)(A). We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

1. The conspiracy and distribution counts were properly joined as “offenses ... of the same or similar character.” See Fed.R.Crim.P. 8(a); United States v. Rousseau, 257 F.3d 925, 932 (9th Cir.2001). 1 The first count charged Drum-mondo with conspiring to distribute methamphetamine in Hawaii, beginning at an unknown date and ending in January of 2012. The second count charged Appellant with distributing methamphetamine in Hawaii in December of 2010. In light of these similarities, and because Rule 8 is to be “broadly construed in favor of initial joinder,” id. at 573, joinder was not improper. See Rousseau, 257 F.3d at 932 (holding that two firearm offenses were “[cjlearly” of a “same or similar character” even though “the crimes involved different evidence, did not involve a common scheme or plan,” and were separated by more than six months because both counts charged “being a felon in…