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USCA9 Corrects Itself, Unanimously

Now here is something refreshingly different. First, a Ninth Circuit panel issues a very wrong decision, taking a U.S. Supreme Court precedent vastly further in the defendant's favor than its language warrants. Nothing unusual to this point.

Next, the Ninth Circuit grants rehearing en banc. At one point, the Ninth so rarely granted en banc to correct pro-defendant errors that some AG offices had largely given up asking and went straight to a certiorari petition to U.S. Supreme. More recently, though, the Ninth has taken up a few rogue pro-defendant decisions.

Now here is the unique part. The 11-judge pseudo en banc panel decides contrary to the original 3-judge panel unanimously. Wow.
A felon is found in an apartment alone, asleep, and with a Tec-9 semiautomatic on his lap and a handgun leaning against his leg. Is that evidence sufficient to convict of being a felon in possession of a firearm? Of course.

But this is the Ninth Circuit, so defendant draws a panel with two judges willing to say this is constitutionally insufficient evidence. When the case goes pseudo-en-banc, neither of the two is one the larger panel. Meanwhile, the Supreme Court unanimously reverses the Ninth in another sufficiency of evidence case, McDaniel v. Brown. In that case, the Ninth had failed to follow the clear direction of Jackson v. Virginia on how to evaluate the evidence. Today, the en banc court, citing Brown and applying Jackson correctly, reinstated the conviction.


Nice to see Judge Paez eat another unanimous reversal. Looks like the GOP was right about this activist judge.

The other nice point about the en banc opinion is that it goes through the Ninth's lousy history on sufficiency of the evidence review. Shades of United States v. Jimenez Recio.

Looking a little deeper, the only extreme liberal (for the Ninth Circuit) on the panel seems to be Judge Thomas. Once the tossing of the panel result had a majority, the game was up. Judge Paez got to a result that was thoroughly indefensible. (Had Judge Paez been a high school teacher instead of a federal judge, he probably would have swallowed "the dog ate my homework" excuse from students.) Judge Thomas probably thought that being a lone dissenter just wasn't worth it in this case.

Oh, and one more thing, Judge Paez is no stranger to his opinions being unanimously tossed by the en banc Ninth Circuit. He authored the opinion putting a stop to the California recall of Gray Davis. He also has the dubious distinction of authoring an opinion that was summarily reversed by PC opinion by SCOTUS (Middleton v. McNeil).

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