United States v. James, No. 13-10543 (1-14-16)(Tallman with Piersol; Kozinski dissenting)(Note: This is an Arizona FPD case).  The 9th reverses a district court's granting of a motion of acquittal after a jury returned a verdict of guilt on two counts of sexual abuse under  18 USC 2242(2)(B). The case concerned charges of sexual abuse against a severely disabled woman.  The victim was disabled by cerebral palsy.  The defendant was caught having sex with her and the government charged the defendant as sexually abusing someone who was physically incapable of declining participation or unwillingness in a sexual act.  At the conclusion of trial, the defendant argued that the government failed to present any evidence that the victim declined participation.  There was evidence that the victim could communicate likes and dislikes.  The district court granted the acquittal motion.

In a case of first impression, the 9th examined the meaning of "physically incapable." It rejected the district court's narrow definition of being "physically helpless," a definition used in a number of states, and instead used a broad definition.  The 9th examined the evidence of incapability in the light most favorable to the government under Jackson, and reversed the district court. The 9th stressed that when there is a factual dispute of consent, the jury is the appropriate fact finder.

Kozinski, dissenting, berates the majority for broadening the definition beyond the clear language that the victim was unable to say no: physically helpless.  Kozinski argues that the majority forces the defendant to prove consent under this subsection, when the burden is on the prosecution to show that the victim could not communicate at all.  Here, the evidence was she could; and the prosecution failed to show any evidence that she could not.

United States v. Spangler, No. 14-30042 (1-15-16)(Lefkow, Sr D.J., with McKeown and Tallman).  The 9th affirms numerous counts wire fraud, money laundering, and investment advisor. The criminal conduct arose when the defendant, running an investment group, transferred and borrowed assets from one fund to cover another.  This violated the understanding of the investors, the memos of investments, and the structure of the funds.  At trial, defendant argued that the investors were aware of the risks. 

In affirming the convictions, the 9th found no error in the district court's precluding a defense expert.  The expert would have testified about volatility of stock, risks, and the veracity of the statements received.  The 9th agreed with the district court that the testimony was irrelevant because the investors were told one thing while different things were being done "behind the scenes." The fact that the prospectus said there was risk is different from the risk being an unauthorized and fraudulent shuffling, borrowing, and covering up of assets (all occurring during the plunge in 2008).  The 9th also held no error in admitting testimony about the defendant's fiduciary responsibilities. Lastly, no fifth amendment violations occurred in the count of investment advisor fraud where "willful"" was not directly stated.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/01/15/14-30042.pdf

Fue v. Biter, No. 12-55307 (1-15-16)(Rawlinson with O'Scannlain; Bybee dissenting).  The 9th held that the petition was untimely and would not be saved by equitable tolling.  The district court concluded, and the 9th agreed, that, despite the state court's failure to notify the petitioner of the denial of his state petition, the petitioner was not diligent.  The petitioner waited 14 months before checking.  Dissenting, Bybee argues that the fault lay in the California Supreme Court, which never notified the petitioner.  Yet, it had decided the petition six months after submission.  Bybee says that 14 months is not that long; and instead, the majority invites a steady stream of correspondence to the courts asking about status.  Bybee's dissent hopefully will get en banc attention.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/01/15/12-55307.pdf