United States v. Michelle Osborn
20-30092
| 9th Cir. | Oct 14, 2021Background
- Michelle Madona Osborn was convicted in Washington state court of residential burglary, theft (third degree), and possession of stolen property for items taken in Olympic National Park; she appealed her conviction and sentence to the Ninth Circuit.
- During jury selection the district court excused prospective Juror 31 for hardship; he worked in cannabis compliance and said he could not step away from responsibilities.
- Osborn sought a special unanimity instruction for aggregated theft and possession counts (multiple items under single counts); the district court denied the request based on Washington law permitting aggregation of items from the same owner/place.
- The district court gave an aiding-and-abetting instruction after Osborn argued she may not have personally removed certain heavy items (e.g., a safe) and suggested others assisted.
- Osborn received a four-month custodial sentence followed by three years supervised release; the district court commented on public-health concerns during COVID; she challenged the sentence as substantively unreasonable on appeal.
- The Ninth Circuit affirmed, rejecting challenges to juror dismissal, jury instructions, and sentence (reviewing sentence for plain error because Osborn failed to object below).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Juror dismissal for hardship | Juror 31's removal denied Osborn an impartial jury / violated Sixth Amendment fair-representation | District court permissibly excused juror for hardship under 28 U.S.C. § 1866(c); no showing of partiality among seated jurors | Affirmed — excusal for hardship not an abuse of discretion; no Sixth Amendment violation shown |
| Special unanimity instruction for aggregated theft/possession counts | Jury needed a unanimity instruction to specify which discrete acts/items formed the basis of conviction | Washington law permits aggregation of multiple items/acts under a single theft or possession count; jury could identify charged items | Affirmed — denial of special unanimity instruction was not an abuse of discretion |
| Aiding-and-abetting instruction | (Osborn implied) She may not have personally taken some items, so instruction unnecessary | Defense theory made the instruction appropriate; aiding-and-abetting can be implied for federal offenses | Affirmed — giving the instruction was proper and not an abuse of discretion |
| Sentence substantively unreasonable (COVID comment) | District court’s concern about Osborn as a COVID risk ("Typhoid Mary") rendered sentence unreasonable | Review for plain error; sentence was low within state guideline range, well below federal guideline range, and supported by criminal history, bond violations, pending charges | Affirmed — no plain error; sentence reasonable and supported by 18 U.S.C. § 3553(a) factors |
Key Cases Cited
- United States v. Milner, 962 F.2d 908 (9th Cir. 1992) (abuse-of-discretion review for juror removals)
- Duren v. Missouri, 439 U.S. 357 (1979) (fair-representation standard for jury composition)
- United States v. Calhoun, 542 F.2d 1094 (9th Cir. 1976) (broad trial-court discretion in jury selection)
- United States v. Garcia, 768 F.3d 822 (9th Cir. 2014) (abuse-of-discretion review for jury instructions)
- State v. Vining, 472 P.2d 564 (Wash. 1970) (aggregation of property stolen from same owner/place under a single crime)
- State v. McReynolds, 71 P.3d 663 (Wash. 2003) (aggregation of discrete possessions into a single possession count)
- United States v. Vaandering, 50 F.3d 696 (9th Cir. 1995) (aiding-and-abetting may be implied in federal offenses)
- United States v. Chen Chiang Liu, 631 F.3d 993 (9th Cir. 2011) (jury confusion/unanimity standards)
- United States v. Echeverry, 719 F.2d 974 (9th Cir. 1983) (jury note and unanimity considerations)
- United States v. Valencia-Barragan, 608 F.3d 1103 (9th Cir. 2010) (plain-error review for unpreserved sentencing objections)