Pellicano

dissenting.

Pellicano contends that probable cause for the search warrant at issue in this case was completely lacking as a matter of law and that the F.B.I. agents who sought and executed it did not do so in good faith. He is correct on both accounts.

In United States v. Panaro, 266 F.3d 939 (9th Cir.2001) (as amended), “we held that the ‘obtaining’ element of [18 U.S.C.] § 1951 required that the victim must not only be deprived of property, but that someone must receive the property as a result of the deprivation.” Maj. op. at 45 (citing Panaro, 266 F.3d at 948 ). Subsequent to that decision and the search at issue, which occurred in 2002, the Supreme Court confirmed in Scheidler v. Nat’l Org. for Women, 537 U.S. 393 , 123 S.Ct. 1057 , 154 L.Ed.2d 991 (2003), that extortion under the Hobbs Act requires both the deprivation of a property right by the defendant and its receipt by him. See id. at 403 , 123 S.Ct. 1057 . Our opinion in Panaro could not have been clearer on this point: “[S]omeone — either the extortioner or a third person — must receive the property of which the victim is deprived.” 266 F.3d at 948 (emphasis added).

Here, the affidavit supporting the warrant states…

MEMORANDUM **

Anthony Pellicano appeals his conviction following a conditional guilty plea to possession of unregistered firearms in violation of 26 U.S.C. § 5861 (d) and possession of plastic explosives in violation of 18 U.S.C. § 842 (n)(l). We affirm.

Pellicano’s primary challenge is to the validity of the first warrant, issued November 19, 2002. It was during the search pursuant to the first warrant that the incriminating items were discovered. That caused the agents to obtain the second warrant, issued November 21, 2002, which authorized the search for and seizure of those items. Pellicano argues that probable cause did not exist for the first warrant because the alleged misconduct (for which the government asserted that it had probable cause) did not, contrary to the government’s assertion, constitute a violation of the Hobbs Act. After the Supreme Court’s subsequent decision in Scheidler v. NOW, Inc., 537 U.S. 393 , 123 S.Ct. 1057 , 154 L.Ed.2d 991 (2003), the government effectively acceded to that position, because it dropped the investigation and dismissed a related indictment. Pellicano argues that even prior to Scheidler,, the government lacked probable cause based on…