Sunday, April 01, 2018

Case o' The Week: Ninth Psh-Shaw after SCOTUS Remand - Shaw and Bank Fraud Jury Instructions

 The good news, Mr. Shaw, is you won a remand from the Supreme Court of the United States.
  The bad news . . . 
United States v. Shaw, 2018 WL 1473599 (9th Cir. Mar. 27, 2018), decision available here.

Players: Decision by Judge Schroeder, joined by Judges Nguyen and Hurwitz. Hard-fought appeal by CD Cal AFPD James Locklin.

Facts: Shaw ran a scheme that siphoned off funds of a bank depositor, through online payment and PayPal. Id. at *1. The losses were borne by the victim and by Pay Pal – not the bank. Id. Shaw was convicted of bank fraud, and on appeal argued that he had not defrauded the bank within the meaning of the statute. Id. The Ninth affirmed the conviction, and the Supreme Court agreed on that issue. Id.
  SCOTUS remanded on a different issue, however, that the Ninth had not considered: the disjunctive form of the “scheme to defraud” instruction. Id. The instruction given during trial allowed a conviction if Shaw had intended to “deceive, cheat, or deprive,” but the parties in the Supreme Court agreed the instruction should be in the conjunctive. Id.

Issue(s): “The [Supreme] Court remanded to us to consider whether this argument was fairly presented below, and, if so, whether the instruction is lawful and, if not, whether any error was harmless in this case.” Id.

Held: “We have carefully reviewed the record. It shows that Shaw did object to the instruction given by the district court. But the objection was not on the ground that he urged in the Supreme Court . . . Accordingly, we conclude that the argument the Supreme Court identified for consideration on remand was not fairly presented to us or to the district court.” Id. at *2.

Of Note: Judge Hurwitz was a sub, on this case. The case was originally submitted to a panel that included the Honorable Judge Harry Pregerson. Id. at *1. When Judge Pregerson passed away, Judge Hurwitz was drawn by lot. As discussed in “For Further Reading” below, we’ll tragically be seeing more of these footnotes soon.

How to Use: This outcome is a tough break for Mr. Shaw, though the Ninth does tip a hat to defense counsel’s statutory interpretation argument that was “creative and consistent with the record.” Id. at *2. Nonetheless, the good holding from the Supreme Court remains: this jury instruction should be in the conjunctive. A flag of note for future bank fraud cases under 18 USC § 1344(1). Id.
For Further Reading: For those who care about the rights of the poor and the powerless, decades of vigilance by three remarkable jurists helped make the Ninth great: Judge Betty Fletcher, Judge Harry Pregerson, and the “Lion of the Left,” Judge Stephen Reinhardt. We’ve bid our sad farewells to Judges Fletcher and Pregerson -- we now mourn the passing of Judge Reinhardt.
The Honorable Judge Stephen Reinhardt
  There will be tributes a-plenty to a Judge who left a remarkable legacy in many fields: marriage equality, civil rights, the First Amendment, immigration law, and making sure our indigent clients got a fair shake when facing draconian criminal statutes and sentencing guidelines. Less well known is Judge Reinhardt’s many quiet contributions to protecting the Criminal Justice Act – like Judges Betty Fletcher and Harry Pregerson, he served many years on the Ninth’s Federal Defender Standing Committee.
  For those who have the privilege to have argued before Judge Reinhardt, you’ll remember the experience: either a great witticism that got everyone laughing and broke the tension during an uncomfortable argument, or the dogged and insightful questioning that had counsel wishing that podium clock would tick down a little faster.
  For a taste of the Judge, the scholar, and the man of passionate convictions, revisit Judge Reinhardt's (still correct) explanation of the unconstitutionality of AEDPA. Crater v. Galaza, 508 F.3d 1261, 1262 (9th Cir. 2007) (Reinhardt, J., dissenting from denial of rehearing en banc) (“Such a congressional breach of the federal judiciary's integrity and independence, of its duty to maintain the supremacy of the Constitution, and, indeed, of the constitutional structure itself, should not go unchecked by this court.”)
  Dean Erwin Chemerinsky has written a brief and thoughtful piece on Stephen Reinhardt, the jurist and the man, available here. Former clerk Joanne Mariner has penned a more personal, and moving, memory of the Judge, available here.
  Farewell to another legend and, in some respects, to a great era in our Circuit’s history.

Image of the Honorable Judge Stephen Reinhardt from

Steven Kalar, Federal Public Defender, N.D. Cal. Website at


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