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USCA9 on Premeditation

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The Ninth Circuit is not quite the "Ninth Circus" that it was previously, as a result of appointments during the Bush Administration.  Panel decisions in favor of criminal defendants are now sometimes corrected en banc, rather than going up to the Supreme Court to add to the Ninth's notorious reversal rate.

One such decision was a fairly standard case on premeditation, United States v. Begay.  Murder is a federal offense in certain places under federal jurisdiction, including "Indian Country," 18 U.S.C. §1153, and the degrees of murder are pretty standard.  See §1111.  The case involves a confrontation between young people that turns violent is an all-too-familiar way. 
After about a minute of standing by the driver's side of the car, Begay walked back to his truck. He reached under the driver's seat, pulled out a .30 caliber rifle, and walked back to the passenger's side of the car. Begay shot eight or nine times through the passenger-side front window, shattering the glass. Six of the bullets hit J.T., while some of the shots missed, hitting the driver's side door. One of the bullets that struck J.T. passed through him and hit O.C.

Is that sufficient to establish premeditation?  On a sufficiency-of-the-evidence challenge on appeal, the question is not whether the appellate court is convinced, but only whether rational jurors could have been convinced.  A panel of Judges Reinhardt, Hug, and Bright (visiting) said no, but the en banc court today said yes, 8-3.

Judge Reinhardt is not only upset that his opinion was overturned, he is upset that the case was taken en banc at all.  "This is a case in which there is no conflict among circuits, no intra-circuit conflict, and no issue of national importance. The court went en banc not over any legal issue, but only to decide whether a few specific facts identified in the majority opinion were sufficient to warrant a finding of premeditation."

Well, Judge Reinhardt, would you care to apply the same standard to rehearing petitions in capital cases affirmed by the panel, when there is no question of guilt?  The Ninth Circuit regularly sits on these rehearing petitions far longer than it does the state's petition when the sentence is reversed, and they are granted too often.  Such a tilt would be understandable if the execution of a possibly innocent person were involved, but not when the only question is whether a person will receive a punishment within the authorized range for a crime he chose to commit.

There was a time when some prosecutors considered rehearing petitions in the Ninth to be an exercise in futility and just went straight for certiorari to the Supreme Court.  It is good to see some improvement.  It would be better to see the improvement survive the current Administration.

4 Comments

Judge Reinhardt complains, "This is a case in which there is no conflict among circuits, no intra-circuit conflict, and no issue of national importance. The court went en banc not over any legal issue, but only to decide whether a few specific facts identified in the majority opinion were sufficient to warrant a finding of premeditation."

Perhaps, Judge, but when your conclusion based on those "few specific facts" is so obviously, boneheadedly wrong, and when that obviously erroneous conclusion leads to an injustice, why would you not expect the entire court to correct that injustice en banc?

Last I checked, premeditation only requires premeditating upon the intent to kill "for more than a moment in point of time." Walking to and from your vehicle to arm yourself with the murder weapon certainly seems to qualify.

There is nothing new under the sun:

"The law fixes upon no length of time as necessary to form the intention to kill, but leaves the existence of a fully formed intent as a fact to be determined by the jury, from all the facts and circumstances in the evidence."

Com. v. Drum 58 Pa. 6 (1868).

Notablogger, I actually disagree with your conclusion that Reinhardt is "boneheadedly" wrong. The real answer is far worse--Reinhardt is a dishonest judge, and as such, is a disgrace to the bench.

Could it be that the panel opinion was tailored to avoid grounds for en banc review? Could a results-oriented panel fudge a few facts to make the outcome appear to be in accordance with established law? Could a results-oriented panel concoct such a new and unique view of the law that there is guaranteed to be no circuit split? On the other hand, why be upset if the en banc court decides to spend its time looking over a case brought to the court for review? To whom does the case belong, the panel or the court?

Well, we already know that Reinhardt plays fast and loose with the record, see Wong v. Belmontes.

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