Judge Noonan: Could you please modify this opinion to change the ninth paragraph? There are two problems with it; one substantive, one technical.
The substantive (and more important) one first. The ninth paragraph purports to address a difficult venue problem. But I don't really find the paragraph very responsive at all. The indictment charged the defendant with conspiracy to distribute methamphetamine and cocaine "in the District of Idaho or elsewhere," and various witnesses testifies to drug purchases by defendant in both Idaho and Washington. But the Venue Clause of Article III ("The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed. . . .") doesn't permit a conviction in Idaho for conduct in another venue (e.g., Washington). And the jury instructions told the jury only that they needed to find that defendant performed one of the offenses specified in the indictment, not that this offense had to occur in Idaho. Which seems like a constitutional venue problem with both the indictment as well as the trial.
Here's Judge Noonan's sole response to this argument (i.e., the entirety of paragraph nine):
"Casch contends that the indictment charging him with offenses committed 'in the District of Idaho or elsewhere' permitted the jury, uninstructed as to venue, to convict him on crimes committed in Washington. Casch characterizes this result as a constructive amendment of the indictment. But there was no 'complex of facts' presented at trial 'distinctly different from those in the indictment.' United States v. Adamson, 291 F.3d 606, 615 (9th Cir. 2006). Nor was there a fatal variance. Id."
Huh? First, at a minimum, don't you need support for those final two sentences, not merely a conclusion? Second, I'm not sure that this is really a response at all (or, for that matter, even a very good explication of defendant's argument). Adamson reversed a conviction. This case doesn't. Don't you need to explain why? Third -- and this is admittedly a minor point, but as long as you're changing things -- Adamson was a 2002 case, not a 2006 case. So go ahead and change the citation: replace "(9th Cir. 2006)" with "(9th Cir. 2002).
There's some more stuff in here that's a little troubling; for example, the remaining harmless error analysis (e.g., the typical "Yeah, we violated the Constitution, but I think you're guilty anyway."). Not that I'm saying that Judge Noonan is wrong. He may well be right here; indeed, I think he probably is. But the opinion needs a little better analysis that it presently contains. Particularly paragraph nine.
We'll see if he changes it a bit. Hopefully more than merely correcting the miscitation.