United States v. Robert Deleon

ORDER

OPINION

On May 22, 1989, Robert DeLeon, Jr., was indicted for manufacturing marijuana in violation of 21 U.S.C. § 841 (a)(1). After the district court denied his motion to suppress evidence, DeLeon was convicted on one count of manufacturing marijuana. The district court imposed a mandatory minimum sentence of five years incarceration and four years supervised release. DeLeon was released on his own recognizance during the pendency of his appeal.

DeLeon appeals his conviction on the grounds that: (1) the district court improperly denied his motion to suppress evidence in violation of the Fourth Amendment because the affidavit used to obtain the search warrant contained material misrepresentations or omissions of fact; and (2) the mandatory minimum sentencing provisions of 21 U.S.C. § 841 (b)(1)(B) violate his rights of due process and equal protection. We REVERSE the district court on the first ground and REMAND for further proceedings consistent with this opinion.

I.

Robert DeLeon owned forty acres of uncultivated land in Moses Lake, Washington. Local rumors had for some time circulated that DeLeon was in the business of growing marijuana. On February 21, 1989, three…

dissenting:

The issue before us on this appeal is not whether the affidavit that was submitted *766 to Judge Sperline, with its incorporated attachments, was adequate to establish probable cause for the search warrant. As the district court noted, DeLeon did not contest this point. (RE 40.) Rather, the issue is whether a more complete description of Agent Jurovich’s conversation with Charles Linedecker should have been included with the affidavit and, if so, whether the content of the affidavit, together with the omitted statements of Charles Linedecker, was sufficient to establish probable cause.

Agent Shay’s statement in the affidavit was:

This was an incomplete description of Agent Jurovich’s conversation with Line-decker. The district judge found that, in addition to simply referring Agent Jurovich to Loren Brown, Linedecker had said he did not see anything, did not smell anything, and did not want to talk about it.

The district court concluded that even though the statement was made to Agent Jurovich and it was Agent Shay who signed the affidavit, Linedecker’s statement should have been included. With this we all agree. The question then becomes the effect the inclusion…

979 F.2d 761 UNITED STATES of America, Plaintiff-Appellee, v. Robert DeLEON, Defendant-Appellant. No. 89-30230. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 2, 1990. Filed Feb. 7, 1992. Withdrawn Nov. 10, 1992. Decided Nov. 10, 1992. 1 Jeffrey K. Finer and Robyn L. Pugsley, Pat Stiley & Associates, Spokane, Wash., for defendant-appellant. 2 Stephanie J. Johnson, Asst. U.S. Atty., Spokane, Wash., for plaintiff-appellee. 3 Appeal from the United States District Court for the Eastern District of Washington. 4 Before: HUG, D.W. NELSON, Circuit Judges, and WALKER, * District Judge. ORDER 5 The opinion, 955 F.2d 1346 , filed February 7, 1992, is hereby WITHDRAWN. OPINION WALKER, District Judge: 6 On May 22, 1989, Robert DeLeon, Jr., was indicted for manufacturing marijuana in violation of 21 U.S.C. § 841 (a)(1). After the district court denied his motion to suppress evidence, DeLeon was convicted on one count of manufacturing marijuana. The district court imposed a mandatory minimum sentence of five years incarceration and four years supervised release. DeLeon was released on his own recognizance during the pendency of his appeal. 7 DeLeon appeals…