U.S. v. Nevils, No. 06-50485 (3-19-10) (en banc) (Ikuta). In an en banc opinion, the 9th affirmed the conviction and sentence of a prohibited possessor defendant found sleeping with guns on and near his body. A panel had reversed, finding insufficient evidence because the evidence was that the defendant had passed out on the couch, and when he did, there were no guns around. In this unanimous opinion, the 9th emphasized the two-part test of Jackson v. Virginia, 443 U.S. 307 (1979), which requires an appellate court to determine whether "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 319. The en banc opinion chides the 9th for straying from the "in the light most favorable" in the sense that it cannot re-weigh facts. All facts and conflicts must be considered in the most advantageous light for the government. It is only after all facts are resolved in favor of the government, does an appellate court consider whether any rational trier of fact could have found the elements met. In construing the evidence here, given the actual weight of the weapons, the officer saying that the defendnat reached for the weapon upon awakening, and the circumstantial evidence, a jury could have found the defendant guilty of being a prohibited possessor. The opinion does cite a line of cases where being just near or around weapons or drugs without a tie has been deemed insufficient. The 9th also found that the sentence was not unreasonable.

U.S. v. Hofus, No. 09-10076 (3-19-10) (Hawkins joined by M. Smith; dissent by Noonan). The defendant was using texts to supposedly entice an underage girl to have sexual activity with him. The girl had "sexted" some photos to a friend, and the defendant had somehow learned this and was threatening exposure unless sexual activity took place. The FBI became involved, and the defendant was eventually arrested on a park bench while waiting to rendezvous with the girl. On appeal, the defendant argued that the court erred in its "substantial step" instruction. The court used the model instruction; the defendant wanted an instruction that formulated the substantial step as being an action of such substantiality that, unless frustrated, the crime would have been committed. The 9th found no error; nor did the 9th find error in the failure of the court to require a unanimity instruction for the substantial step. The 9th fractured though on the issue of the defense expert. The defendant called an expert that testified that the acts of the defendant were not grooming; about fantasy based communications; and that he did not have abnormal interest in youthful women with some secondary sexual characteristics. The court barred, and the 9th affirmed, testimony about the actual intent of the defendant at the time or whether he would have engaged in a sexual act. The 9th reasoned that the testimony would have been irrelevant, because the statute only required an intent to persuade the minor under 2422. Noonan, dissenting, would have found the testimony relevant and would have permitted it.

U.S. v. Rocha, No. 08-50175 (3-18-10) (Bybee with T. Nelson and M. Smith). Defendant assaulted another inmate at FCI-Victorville during a prison brawl. As caught on videotape, the defendant grabbed the ankles of the victim, pulled them, causing the victim to fall to the concrete fall. The victim later died from knife wounds. The defendant was charged with assault to commit murder, assault with a dangerous weapon, and with an assimilated crime of assault by means of force to cause great bodily injury. He was acquitted of assault to commit murder, but convicted of the other two charges. The 9th reverses the conviction. The 9th holds that the defendant could not be tried under the Assimilative Crime Act, because Congress had defined assault, and had pretty much precluded application of state law by its comprehensiveness. The 9th examined the structure of the federal assault statute, 18 U.S.C. 113, and determined that it had a graduate degree of seriousness, and that Congress had seemingly covered the acts. The fact that a state offense might have a different focus, or formulation, does not permit it to wedge its way into a scheme structured by Congress. The 9th also, importantly, holds that hands cannot be considered a dangerous weapon. The 9th looked at previous decisions, that recognized that objects of seemingly innocuous use could have latent danger when put to bad use. However, the dividing line is that they are objects. The 9th considered other circuits' decisions, dealing with teeth, and HIV, as well as state precedents. The majority of states hold that a dangerous weapon must be some object. The 9th reasoned that if the weapon could be hands, or a body part, then basically all assaults would be with a dangerous weapon. The 9th also was not willing to let the jury decide the issue on a case-by-case basis. The requirement is an object for it to be a dangerous weapon.