Wednesday, March 17, 2021

1. US v. Lucero, No. 19-10074 (3-4-21)(Bumatay w/Bade & Marquez; partial dissent by Bade). The 9th deals with the Clean Water Act. The 9th remands for a new trial. The winning issue concerns jury instructions and the definition of knowingly discharging pollutants “into water.” The complex statutes and definitions can define water as being dry land, provided it meets the definition of wetlands or tributaries. The jury instructions fail to make clear that the defendant had the mens rea necessary when he put dirt on land that can be considered “in water.” The 9th also held that the requirement of “into waters of the United States” is jurisdictional. Bade’s dissent would require mens rea to attach to “into waters of the United States.”

The decision is here:

2.  US v. Rundo, No. 19-50189 (3-4-21)(per curium w/Fernandez, Paez, & Tigar; partial concurrence and dissent by Fernandez). Is the Anti-Riot Act unconstitutional? Ah, not the January 6th insurrection but in charges brought against the “Rise Above Movement” (RAM). RAM is a white supremacy nationalist militia group that engaged in violent acts at political rallies in the spring of 2017. The district court dismissed the charges as unconstitutionally broad under Brandenburg v. Ohio, 395 US 444 (1969), which gives First Amendment protection to advocacy of force except where it is directed to inciting or producing imminent lawless action and likely to incite such action. The 9th reverses the dismissal, finding most of the Act not unconstitutionally overbroad. The actions unconstitutionally overbroad — organizing and urging —can be severed. Fernandez, dissenting, would not find those two acts overbroad.

The decision is here:


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