US v. Hernandez, No. 14-50214 (6-15-17)(Per Curiam  by Schroeder, Bybee & Smith).  Interesting opinion reversing a conviction, but not for the usual reasons.  The 9th affirmed that "willfully" in this gun case was not specific intent and there was sufficient evidence to support the verdict.  However, the introduction of evidence of other crimes made it likely that the jury convicted on other acts rather than the one at issue, thus a vacation of the conviction.

This was a 22(a)(3) case, Illegal Transportation of Firearms.  The defendant bought firearms in Arizona, took them to California, and sold them.  There were a lot of weapons.  The defendant argued that "willfully" in the statute required specific intent.  The 9th held that the term here "is not subject to the heightened awareness used in some tax and antistructuring laws." (9). Just as with the gun licensing requirement in Bryan v. US, 524 US 184 (1998), the defendant knew his act, here transporting guns into California, was somehow unlawful.  There was sufficient evidence to support the verdict and the instruction was not error.  The defendant could not have been doing innocent acts that were somehow a snare for illegality.

Yet, the conviction was reversed.  The government, in its zeal to prove state of mind, and knowledge of illegality, introduced all sorts of evidence about other gun transportation and future crimes.  The jury instruction given about knowledge was broad about knowledge of illegal acts.  The 9th held that "the broad jury instruction, combined with the evidence of the commission of later crimes and the government's argument to the jury, resulted in significant prejudice to [the defendant]." (15)  This is a good case to check the government's use of all sorts of bad act evidence to try to prove knowledge.

Congrats to Alexandra Yates of the FPD Ofc, Cal Central (L.A.).

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/15/14-50214.pdf
 

US v. Kleinman, No. 14-50585 (6-16-17)(M. Smith w/Ebel & N. Smith).  The 9th affirms the convictions of defendant charged with various marijuana trafficking offenses.  The defendant lives in a state that has medical marijuana law.  He argued that the congressional appropriations rider for medical marijuana should bar prosecution.  The 9th said "no" because various counts were outside of the medical marijuana protection.  For example, two counts involved trafficking with individuals outside of the state.  This preserves the conviction.

Of note is the 9th stating that though the prosecution began before the rider passed, it could be considered because the case was on appeal.

Interesting issue as to an instruction related to jury nullification.  The 9th found error in the court's jury instruction stating that there was no such thing as "valid jury nullification." The court gave the instruction because of the protests outside the courthouse during the trial.  The jury instruction was error because it implied that the jury would be punished if it nullified.  The jury can be told to follow the law; it cannot be chastised for nullification because the acquittal would be valid.  Alas, although it was erroneous, it does not get a reversal because there is no prejudice as there is no right to nullification.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/16/14-50585.pdf