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9th Circuit: Rehearing denied in case barring sentencing judge from overriding affirmative jury finding of drug quantity; district court erred in barring defendant from arguing that statute did not apply to his postings on child porn bulletin board; jury instruction in firearms-transportation case erroneously failed to require intent to commit particular crime charged

United States v. Pimentel-Lopez, — F.3d —, 2016 WL 9076502 (9th Cir. June 1, 2017): Rehearing denied in case barring sentencing judge from overriding jury’s affirmative finding of drug quantity

A blog entry posted in this space on July 30, 2016 covered the original panel opinion in United States v. Pimentel-Lopez. In a nutshell, the panel held that when a jury makes an affirmative finding that the defendant possessed less than a specified amount of narcotics, the sentencing court cannot later find that he actually possessed more than that amount. The government filed for en banc rehearing. The court voted against rehearing, but the panel amended its opinion and six judges dissented from the denial of rehearing. In response (presumably) to the views of the dissenting judges, the panel added language to the opinion illustrating how the verdict form could have been structured to prevent the problem, and noted that the government “can easily avoid this pitfall in future cases.” The dissenters argued that the panel misread the verdict form, and that the jury did not find beyond a reasonable doubt that the amount of drugs involved was not more than the specified amount. The dissenters asserted that the panel opinion creates a circuit split “with this circuit alone on an island.” They also warned that the panel opinion had “serious practical consequences” because the jury form in question is “substantially similar” to the court’s model form, meaning that similar forms may have been used in many cases.

(Repeat congratulations to Timothy M. Bechtold, Bechtold Law Firm, PLLC, Missoula, Montana.)
United States v. Brown, — F.3d —, 2017 WL 2509230 (9th Cir. June 12, 2017): District court committed structural error by barring defendant from arguing to the jury that his posts on child porn bulletin board were not “notices” or “advertisements”

You know those out-of-place-looking, inappropriately-dressed people sitting in a little enclosure on the side of the courtroom, like they were visiting one of those immersion-style aquariums? They’re actually supposed to make all the crucial factual findings in the trial. It’s weird. Weird enough, in fact, that trial judges sometimes seem to forget it – or at least the Ninth Circuit concluded that the trial judge seemed to forget it in the trial of Daniel Brown.

Mr. Brown was a member of an online bulletin board called Dark Moon, on which he and others shared child pornography. The government charged him under 18 U.S.C. 2251(d)(1), which applies to people who publish a “notice” or “advertisement” for transactions involving child pornography. His attorney planned to argue in his closing that a posting on Dark Moon does not amount to a “notice” or “advertisement” of the sort covered by the statute, because the site was inaccessible to the public, required a username and password for entry, required all users to encrypt and password-protect everything they uploaded, had relatively few users, and prohibited members from disseminating its URL to the general public. But the district judge barred him from doing so, explaining that “to me” his posts met the statutory definition of “notice” or “advertising.” The Ninth Circuit held that this deprived Mr. Brown of his Fifth and Sixth Amendment right to present a complete defense, because “that determination was the jury’s to make.” And because “preventing a defendant from arguing a legitimate defense theory constitutes structural error,” reversal of Mr. Brown’s conviction was mandatory. Judge Bybee dissented, objecting that Mr. Brown’s defense was barred as a matter of law by a prior Ninth Circuit opinion.

(Congratulations to Chad Wright, Wright Legal P.C., Helena, Montana.)
United States v. Hernandez, — F.3d —, 2017 WL 2587979 (9th Cir. June 15, 2017): Firearm-transportation conviction reversed because jury instruction failed to require intent to commit particular crime charged

Remember your first-year criminal law class? Remember hypotheticals like this: Smith drives to meet Jones in a deserted lot, with the intention of killing him. Before Jones shows up Smith changes his mind, deciding that the better course is to extort money from Jones, and starts driving home. On the way, he accidentally runs Jones over, killing him. Is Smith guilty of murder? The class gunner’s hand shot up, and he pronounced — a little smugly, you thought: “It is a longstanding precept of the common law that a person cannot be convicted of one crime on the basis of an intent to commit another.” The whole scenario seemed highly abstract then, and it still does – but not to Lucio Salvador Hernandez.

Mr. Hernandez purchased several firearms in Arizona and drove them back to his home state of California. The government charged him with illegal transportation of firearms into his state of residence, in violation of 18 U.S.C. 922(a)(3). The government requested and got a jury instruction stating that it only had to prove that Mr. Hernandez did what he did with the intent to do “something the law forbids.” The government then told the jury it could convict Mr. Hernandez even it did not find that he knew it was illegal to transport the guns from Arizona to California, as long as it found that he intended to use the guns in connection with “some later crime” – such as unlawfully selling them in California, of which there was some evidence. The Ninth Circuit found constitutional error, in view of the “substantial likelihood” that Mr. Hernandez “was convicted for the act of transporting guns with the intent to commit a later crime rather than the one with which he was charged.” Because this error was constitutional and not harmless beyond a reasonable doubt, the court reversed Mr. Hernandez’s conviction.

(Congratulations to Alexandra W. Yates and Hilary Potashner, Office of the Federal Public Defender, Los Angeles, California.)

(Dan Kaplan is an Assistant Federal Public Defender in Phoenix, Arizona.)

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