US v. Heredia, No. 03-10585 (10-24-05). This is an important Jewell (deliberate ignorance) instruction case. The defendant was a passenger, with her children, mother and another, who was driving across the border into Arizona. The car reeked of detergent, which came from dryer sheets used to mask the smell of marijuana. The defendant thought the smell was strange, and was given various explanations for it. She also thought that the behavior of her mother was odd, and she suspected that some criminal activity was afoot. The gov't got a Jewell (deliberate ignorance) instruction and the defendant was convicted. On appeal, the 9th (Bybee!) stressed that the Jewell instruction was "rarely appropriate." It should only be given when the gov't presents specific evidence that defendant (1) actually suspected that she was involved in criminal activity; (2) deliberately avoided taking steps to confirm or deny those suspicions; and (3) did so to provide herself a defense. The 9th further emphasizes that the gov't can't request an instruction to fill in gaps in its case. The danger is that the jury may convict on suspicion or negligence. The 9th then discusses various cases that a Jewell instruction is inappropriate. If you need to oppose a Jewell instruction, this is the case. Kozinski, in dissent, scoffs st the holding, arguing that if any case had a sufficient basis for Jewell, this was it. He would also find harmlessness.

US v. Vidal, No. 04-50185 (10-24-05). The 9th (Rymer) holds that a California conviction for unlawful taking of a vehicle under Calif. Vehicle Code 10851(a) is a theft and constitutes an agg felony under 2L1.2(b)(1)(C) and so the eight level increase in the offense level is affirmed. The 9th rejects the argument that the state code is overly broad in that the state code is for a temporary taking (joy-riding) while the 9th has adopted a Model penal Code definition in Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002)(en banc); and the 9th rejects that the code is overinclusive. The 9th states that the definition in Corona-Sanchez was from the 7th Cir., and encompasses even temporary takings. The overinclusiveness would go to such acts as promoting or instigating. The 9th believes this fits within the generic definition. The majority also believes that a modified categorical approach also make sit an agg felony. In dissent, browning argues that the state code includes accessories, and this is outside the ambit of aiders and abettors, and so is overinclusive because it brings in others than the principals. he also does not believe that the charging papers show that it was a theft.