United States v. Way Quoe Long

301 F.3d 1095 UNITED STATES of America, Plaintiff-Appellee, v. Way Quoe LONG, Defendant-Appellant. No. 98-10136. United States Court of Appeals, Ninth Circuit. Argued and Submitted October 17, 2001. Filed August 26, 2002. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Ann McClintock, Assistant Federal Defender, Sacramento, CA, for the defendant-appellant. Kathleen A. Servatius, Assistant U.S. Attorney, Fresno, CA, for the plaintiff-appellee. Appeal from the United States District Court for the Eastern District of California; Oliver W. Wanger, District Judge, Presiding. D.C. No. CR-96-05135-OWW. Before: RONEY, * HUG and THOMAS, Circuit Judges. PER CURIAM Opinion; Dissent by Judge THOMAS. PER CURIAM: 1 This case involves growing marijuana, conspiracy, and firearms. Appellant Way Quoe Long (Long) was convicted of engaging in a continuing criminal enterprise (CCE), 21 U.S.C. § 848 (count 1); conspiracy to manufacture, distribute, and to possess with the intent to distribute marijuana, 21 U.S.C. §§ 841 (a)(1), 846 (count 2); two counts of manufacture of marijuana and aiding and abetting, 21 U.S.C. § 841 (a)(1) and 18 U.S.C. § 2 (counts 3 and 5); using or…

dissenting.

I respectfully dissent from the holding that Long lacked standing to challenge the search at the East Clay property. The dispositive question is whether Long is entitled to rely upon evidence presented by the government to establish standing.

Prosecutors do not have unbounded authority to “charge possession but dispute expectation of privacy regardless of the underlying facts.” United States v. Issacs, 708 F.2d 1365, 1367 (9th Cir.1983). Here, the government presented contradictory theories as to whether Long resided at the East Clay property — arguing at the bail hearing that he did, but contending at the suppression hearing that he did not.

Of course, Long cannot rely solely upon the arguments or theories advanced by the government to support an expectation of privacy. See United States v. Singleton, 987 F.2d 1444, 1449 (9th Cir.1993). Nor can he rely upon “the government’s allegations in the pleadings, or positions the government has taken in the case, to establish standing.” United States v. Zermeno, 66 F.3d 1058, 1062 (9th Cir.1995). Instead, it is Long’s obligation to “present evidence of his standing, or at least to point to specific evidence in the record…

PER CURIAM Opinion; Dissent by Judge THOMAS.

This case involves growing marijuana, conspiracy, and firearms. Appellant Way Quoe Long (Long) was convicted of engaging in a continuing criminal enterprise (CCE), 21 U.S.C. § 848 (count 1); conspiracy to manufacture, distribute, and to possess with the intent to distribute marijuana, 21 U.S.C. §§ 841 (a)(1), 846 (count 2); two counts of manufacture of marijuana and aiding and abetting, 21 U.S.C. § 841 (a)(1) and 18 U.S.C. § 2 (counts 3 and 5); using or carrying a firearm during and in relation to a drug trafficking offense, 18 U.S.C. § 924 (c)(1) (count 6); possessing a firearm silencer, 26 U.S.C. § 5842 , 5861(i), 5871 (count 7); two counts of possessing a machine gun, 18 U.S.C. § 922 (o) (counts 8 and 9); and four counts of criminal forfeiture, 21 U.S.C. § 853 (counts 11-14). Long was acquitted of a manufacturing charge (count 4) and one piece of real property was found not to be forfeitable (count 10). Long appeals. We affirm.

Long presents ten issues on appeal: (1) whether Long had standing to challenge the evidence seized from 3515 East Clay Avenue, Fresno, California (“East Clay”); (2) whether the evidence seized from 29211…