United States v. Fries, No. 13-10654 (8-10-15)(Rawlinson with Tallman and Garbis, Sr. D.J.).  This a criminal history appeal.  The 9th affirms the calculation of criminal history when charges for use of chemical weapon and false statement were counted.  The convictions resulted from charges that earlier had been severed from the present charge and conviction of possession of unregistered destructive devices.  The severance was proper as the charges were separated by time (21 months) and types of explosives and were unrelated.  Thus, when convicted first of the severed charges, they could be counted as separate convictions for a later conviction of possession of an unregistered deters give device.

United States v. Montoya-Gaxiola, No. 14-10255 (8-10-15)(Kobayashi, D.J., with Paez and Clifton).  The 9th reverses a conviction of an unregistered sawed-off shotgun, 26 USC 5845(a), due to an error in the jury instruction.  The court failed to instruct on the mens rea required in the 9th model instruction 9.3.  The instruction focuses on the description of an illegal weapon, in terms of length, and not the fact that defendant had to know that the shotgun's barrel was less than 18". The model instruction states that the defendant knowingly received the weapon, but does not specify that the defendants knew it was less than 18".  The error was not harmless as the barrel here was 14.5 inches and therefore not recognizably illegal.

Cummings v. Martel, No. 11-99011 (8-11-15))McKeown with a partial dissent by Thomas and a partial dissent by Scannlain). The 9th affirms the denial of a habeas challenges to the conviction and death sentence for the shooting of a police officer.  AEDPA deference again weights the balance against the petitioner in the Batson challenge and IAC sentencing claim.  The 9th does find that the California Supreme Court was unreasonable in finding no error when the state called a deputy, who had served as a bailiff to the jury, to testify that the petitioner had confessed.  Under Turner v. Louisiana, 379 US 466 (1965), the 9th held that under Turner's first prong, the bailiff was indeed a key witness.  However, under the second prong, the state court was not unreasonable in finding that the bailiff was not in continuous and intimate contact with the jury.  Thomas dissented from the conclusion that the bailiff was not in continuous or initiate contact.  O'Scannlain dissented from the finding that the bailiff was a key witness.  He would hold that under AEDPA, it was not an unreasonable state court interpretation under the facts.