U.S. v. Begay, No. 07-10487 (1-12-11) (en banc majority opinion by Clifton; dissent by Reinhardt, Thomas and Berzon).

[Ed. note: This case came from the FPD Arizona office]

Defendant was convicted of two counts of first-degree murder and two gun counts. The panel had vacated the first-degree murder convictions for insufficient evidence of premeditation and had affirmed the gun counts. Taking the case en banc, the 9th now reverses the panel, and affirms the first-degree murder convictions as having sufficient evidence. The facts involve the defendant shooting two individuals after they had stopped their cars early in the morning of March 28, 2002. The prosecution argued sufficient evidence for premeditation through the acts of the defendant turning around from an initial conversation, walking to his car, getting a rifle, and then shooting. There was no evidence of agitation or being rushed. Using the Nevils two-prong test for sufficiency, see 598 F.3d at 1164, the acts have to be viewed in the light most favorable to the government, and whether such facts adequately support the decision by any rational jury. The majority found that the facts here did. The dissent argued that the decision to go en banc was flawed because it was not to address national importance, circuit conflict, or intra-circuit conflict, but to reconsider a few specific case-bound facts. The panel found that the government failed to prove premeditation and so the murder was second as opposed to first degree. The conclusion is that en banc was to reconsider the interpretation of these facts, which is improper. The dissent argues that the government never proved premeditation but only intent. Premeditation is specific intent. The government did not present any of the evidence usually presented for premeditation, such as motive, demeanor, prior relationship, or whether the means was calculated. The record is silent on such facts. There is no support for premeditation.