*1
890
testified,
particular
to advance
as Jackson
circumstances
consider
That
members
band
—
compensation
ations of
and deterrence.
claims,
that their memories
not mean
does
at
U.S. at - n.
S.Ct.
1033 n. 19.
that relevant evidence has
have not faded or
keep
purposes
in
Courts should
mind
of
That Jackson feels he can
not
lost.
been
(to
Copyright
promote creativity
Act
for
great difficulty
prove
case without
his own
public
apply
good)
and
the factors in an
Appellees
not been
does not mean that
have
plaintiffs
prevailing
evenhanded manner
Moreover, numerous business
harmed.
Id.;
alike.
prevailing
and
defendants
id. at
in
made
transactions have been
reliance on
-,
Axton’s sole attorney’s Appellees’ We remand fee claim. That to have Axton knew Jackson claimed greater Fogerty gives court the district dis- Song if helped is irrelevant. Even write the Cooling Systems. cretion than did See id. at music, help compose the a fact Jackson did -, 114 at 1033. The district court S.Ct. established, yet might Axton have be that should able to exercise discretion merеly thought efforts that Jackson’s were present under the standard. Id. re- On hire, may work for or Axton have been mis- mand the district court should also consider thought taken did actual and Jackson little granted Appellees whether should be attor- composition. Axton’s refusal credit Jack- ney’s § pursuant fees 505 for work done gave grounds, any, if son to sue. Jackson appeal. on this suing delay preju- in is what Jackson’s has Appellees, diced not Axton’s actions with re- IV. gard disputed to a claim. reasons, foregoing For judgment court’s AFFIRMED. view of
III. disposition, our not аnd do we need not de- Appellees The district court denied attor by is also cide whether Jackson’s suit barred fees, ney’s requested pursuant to 17 U.S.C. the statute of limitations or whether Jack- § 505.5 the district court Song, any, When refused if son’s contribution to the was fees, grant controlling authority attorney’s Appellees’ request in work for for hire. attor- attorney’s ney’s this fees is circuit held fees were REMANDED consideration light of Fogerty. § to a defendant under 505 un unavailable plaintiffs was less the action frivolous or Flexibles, Cooling Systems &
bad faith. Inc. Inc., Radiator, 485,
v. Stuart
(9th Cir.1985). time, Cooling Systems has
Since America, UNITED Inc., STATES Fogerty Fаntasy, been - v. overruled. Plaintiff-Appellee, 1023, -, 114 S.Ct. 127 L.Ed.2d Fogerty, Under courts determin attorney’s ing grant whether to fees are to WARREN, Johnnie T. Defendant- ... “equitable light discretion ‘in exercise Appellant. previously] has [the considerations Court No. 93-10384. ” at -, Id. at 1033 identified.’ Eckerhart, Hensley (quoting Appeals, United States Court 436-37, 103 S.Ct. L.Ed.2d 40 Circuit. Ninth (1983)). include, considerations Such but Argued May 1994. Submitted to, might degree not be limited of success 7, 1994. Decided June obtained, at Hensley, 461 U.S. frivolousness; 1941; motivation; objective (both in the unreasonableness factual and ease);
legal arguments in the the need provides: "Except attorney's party prevailing 5. The reasonable to the statute as otherwise fee title, provided part § the court ... award a the costs.” 17 U.S.C.
892 *3 Barbee,
Rustam A. Asst. Federal Public Defender, Honolulu, HI, defendant-appel- for lant. Kubo, Jr., Atty.,
Edward H. Asst. U.S. Honolulu, HI, plaintiff-appellee. FARRIS, BEEZER, Before: RYMER, Judges. Circuit *4 FARRIS; Opinion by Judge Concurrence by Judge RYMER.
FARRIS, Judge: Circuit appeals Johnnie T. his Warren conviction degree § for first murder. 18 1111. U.S.C. argues by He that the district court erred employing jury the blind strike method of selection, admitting prejudicial irrelevant and evidence, refusing theory to submit his instruction; improperly defense and instruct- ing that it could infer malice afore- thought through his use of a knife. We affirm.
I.
background
We summarized the
facts in
Warren,
A
convicted Warren of first
murder,
murder,
attempted
and assault with
deadly weapon.
a
“The court sentenced
parole for the murder
Warren to life without
challenges
peremptory
available
attempted mur-
number of
years for the
Canady, 20
side,
prescribe
system
Watson,
does not
years for assault with
to еach
but
and five
der
Nonetheless,
appealed.
striking jurors.
the method
weapon.” Id. Warren
for
deadly
responded
court
court must not undu-
selected
the district
Holding that
challenges.
from the
questions
ly
use of their
inadequately to
restrict defendants’
degree
Turner,
mur-
second
F.2d at 538.
premeditation
about
murder,
for
der,
conviction
we reversed
and a
Even when
for
and sentences
upheld
but
the convictions
juror,
challenge the same
the blind
defendant
Id. at 329-
and assault.
attempted murder
impair
does not
a defendant’s
strike method
challenges.
peremptory
or her
full use
his
charge,
on the murder
trial
After
second
States,
Hanson
United
degree
first
guilty of
jury found Warren
States,
(9th Cir.1959);
v. United
Carbo
War-
court sentenced
murder. The district
Cir.1963),
to run concurrent
parole
ren to life without
202, 219,
895
correctly
the district court
con
Whether
Whether evidence is “other crimes”
hearsay
question
404(b)
strued the
rule is a
of law evidence within
meaning
of Rule
is
Layton,
question
de
reviewed
novo. United States
of law that is reviewed de novo.
(9th Cir.1988) (constru
1388,
Soliman,
United
855 F.2d
States v.
813 F.2d
(9th Cir.1987).
801(d)(2)(E)),
ing Fed.R.Evid.
489 U.S.
109 S.Ct.
103 L.Ed.2d
The district court properly allowed
to introduce evidence re
The statements were admissable under
garding
stabbing
of Watson. “Evidence
801(d)(2)(A)
Federal Rule of Evidence
as ad-
should not be treated as ‘other crimes’ evi
him,
party opponent,
missions
984 dence when ‘the
concerning
evidence
801(d)(2)(A)provides
F.2d at 336. Rule
act
concerning
[“other”]
and the evidence
”
hearsay
a statement is not
if
“[i]t
offered
charged
inextricably
crime
are
intertwined.’
against
party
party’s
and is ...
own Id. at
(quoting
Aleman,
United States v.
statement....”
Cir.1979) (alteration
original)).
stabbing
The
of Watson is “inex
Warren maintains that
the state
tricably intertwined” with
stаbbing
probative
fight
ments were as
of an intent to
Canady.
part
Both were
single
course
they
objec
were of an intent to kill. This
of action and occurred within moments of
statements,
goes
weight
tion
to the
each other.
single
Offenses committed in a
admissibility.
their
A defendant’s “own out-
episode
criminal
do not become inadmissible
objec
of-court
...
admissions
surmount all
being
because the defendant is
only
tried for
hearsay
tions based on the
...
rule
and [are]
Soliman,
some of his acts.
de novo United States v.
IV.
(9th
636,
Cir.1992);
957 F.2d
642
United
Mason,
States v.
902 F.2d
1438
trial,
At
the second
Warren was
Cir.1990). We review the instructions as a
charged only
murdering Canady.
with
The
whole and consider how the
would have
permitted
district court
to
reasonably understood them in the context of
introduce evidence that Warren stabbed
Mason,
the entire trial.
may reject portions of a
merely
explanations
acting.
of time
rephrase
of
The amount
needed
defense
depends
adequately
premeditation
killing
elsewhere in the
of a
on the
law
covered
Lopez-Alva
person
United States
and the circumstances.
It must be
instructions.
Cir.),
rez,
long enough,
forming
to
after
the intent
-
-,
kill,
fully
to
been
con-
for the killer
have
Hall,
(1992);
L.Ed.2d 440
of the intent and to have considered
scious
(9th Cir.1977).
killing.
requested the court to instruct the
Warren
The instructions as a whole more than
theory
follows:
jury on his
of defense as
adequately covered the issues addressed
theory
in this case is
The
theory
proposed
of defense and
Warren’s
of
defense
did not act with the
that Johnnie Warren
premeditation instructions. The court’s the-
deliberately
specific
take the
intent
ory
retained
of defense instruction
Warren’s
life
killing
Cаnady, and that
Willie
language
an
about the distinction between
heat
the moment with-
occurred in the
injure
specific
intent to
and a
intent to kill.
premeditation.
or
out
I,
proposed premeditation, instruction on which If it is shown that the defendant used a , stated: deadly weapon in the commission aof find,
Premeditation,
homicide,
required
you may
from the use
which is
addi-
then
weapon,
explana-
aforethought
to malice
in order to
of such
in the absence of
tion
circumstances,
tory mitigating
exis-
establish the offense of Murder
in the
typically
is an
Degree,
First
associated with
tence of thе malice which
essential
requires
period
a
element of the offense. You are not
murder
cold blood and
find,
obliged
may
coolly
of time in
the accused
deliber-
so to
however. You
not
which
you
guilty
unless
are
be either
find the defendant
conclusive or rebuttable. A
government
has estab-
presumption
satisfied that
conclusive
removes the element
every
element of the of-
from
prov-
lished
essential
the case once the
has
fense,
charge, beyond
explained
predicate
in this
pre-
en the
facts. A rebuttable
sumption requires
jury
reasonable doubt.
pre-
to find the
per-
sumed element unless the defendant
knife,
law,
deadly
A
as a matter of
is a
jury
finding
suades the
that such a
is not
weapon.2
justified.
process
An instruction violates due
Warren contends the court violated his due
“if
mandatory presumption,
it creates a
ei-
by instructing
process rights
that malice
rebuttable,
ther conclusive or
which shifts
aforethought could be inferred from his use
prosecution
from the
proving
burden of
of a knife. In addition to his claim of consti-
beyond a reasonable doubt an essеntial ele-
error,
in-
tutional
contends that the
ment of a criminal
Washington,
offense.”
misleading, unduly
struction was
intruded on
225; Francis,
review for whether an instruction violates
specified
government proves
conclusion if the
process
creating
due
an unconstitutional
predicate
Although
certain
facts.
such an
presumption
Dickey
or inference. But in
(9th Cir.1988)
proоf,
instruction does not
Lewis,
shift the burden of
859 F.2d
1368-70
process
suggested
it
due
“if
violates
con
Washington,
and United States v.
819 F.2d
clusion is not one that reason and
Cir.1987),
common
we reviewed infer
justify
light
proven
sense
facts
giving
ence
instructions
deference
Francis,
jury.”
before the
We first
in
consider whether the
rebuttable
mandatory
proving
struction created a
burden of
presumption
the absence of malice
permissive
mandatory pre
aforethought
Washing
or a
inference. A
on
the defense.
ton,
sumption
instruction tells the
it
we held that an almost identical instruc
presume
only permissive
must
that an element of a crime has
tion created
inference. 819
*8
proven
government proves
been
if the
certain
at
in
F.2d
225-226. The district court Wash
“
predicate
Mandatory presumptions
ington
jury
facts.
instructed the
that
of a
‘[u]se
previously
jury
permissive presumption
2. The court
had instructed the
this
leaves the trier of
aforethought
reject
that "malice
means to kill either
fact
to credit or
and
free
the inference
purposely
intentionally
recklessly
proof,
and
with
or
does not shift the burden of
it affects the
disregard
extreme
for human life."
application
"beyond
of the
a reasonable
if,
only
doubt" standard
under the facts of the
510,
Montana,
3.
case,
See also Sandstrom v.
442 U.S.
way
is no rational
thе trier could
there
516-17,
2450, 2455-56,
99 S.Ct.
Further,
challenged
considering
when
“A
instruction need not be
in-
for us
find it
instruction
the context of the other
unconstitutional
defective.”
Rubio-Villareal,
trial,
given
structions
Warren’s second
United States v.
Cir.1992) (en banc).
When,
juror
reasonable
could not
concluded
have
here,
objects
the instruction shifted the burden of
to an instruction at
defendant
trial,
proof
proximity
to the defendant.
we review the district court’s formula
close
instruction,
permissive
inference
tion of the instructions for an abuse of discre
jurors
court admonished the
to consider all
tion. We consider whether
the instruc
malice,
regarding the
in con
the evidence
issue
tions —taken as whole
viewed
*9
they
obliged
misleading
reminded them that
were “not
text оf the entire trial —were
or
inference,
emphasized
confusing, inadequately guided
jury’s
to”
the
de
draw the
and
the
liberations,
government’s
proving every
improperly
burden of
ele-
or
intruded on the
Id.;
beyond
finding process.
v.
ment of the offense
a reasonable
fact
United States
(9th
Kessi,
Cir.1989);
requiring
doubt.
than
F.2d
1101
Rather
868
James,
evidence,
227
exculpatory
come forward with
the United States v.
576 F.2d
(9th Cir.1978).
challenged language
circum-
limited the
effect,
explained,
way
in
permissive
jury
A
inference instruction
the one
that the
upon
jury’s
“Thus,
ex
impermissibly intrude
could find that element оf the
can
crime.
by suggesting that
role as fact finder
equivalent
telling
clusive
the instruction was the
is sufficient evidence
judge believes there
jury
judge
the
the
that the
had denied a defense
Rubio-Villareal, 967 F.2d at
to convict.
explaining
motion for a directed
and
verdict
jury
when the
understands
contrast,
299-300. Even
why.” Id. at 299. In
there
at
were
conclusion,
its
that it is free to reach
own
important
least two
issues at
trial:
Warren’s
“disclosing
judge’s
opinion
own
neverthe
the
aforethought
premeditation.
malice
and
jury [will]
the risk that
the
create[s]
less
Moreover, as therе was sufficient evidence
the
responsibility
abdicate its
to evaluate
evi
knife,
jury
aside from the
the
need not have
judge.”
Id. at 299.
dence
deference to the
on
relied
the inference instruction to find
problem
if
instruc
This
can be avoided other
that Warren acted with malice.
qualify
permissive
the
tions condition and
Viewing the instructions
as whole
the
instruction, so as to make clear
inference
evidence,
jury
context of the record
the
was
implying
jury
judge
that the
is not
the
should
to reach
free
its own conclusions.
Rubio-Villareal,
guilty
return a
verdict.
(citing
County, 442
F.2d at 300 n. 9
Ulster
Rubio-Villareal, we
an
identified
160-62,
2226-27;
99 S.Ct. at
Barnes
U.S.
potential problem
permissive
other
in
with
States,
837, 839-40,
United
By focusing
ference instructions.
on a few
(1973)).
2357, 2360,
ing negate infer circumstances” could government’s burden ence and reiterated ques- us Our fact-intensive review makes beyond proof a reasonable doubt. permissive tion inference the effectiveness They considering In addition to instructions. are most effective when instructions, sup- particular apрropriate: facts least where the evidence we examine the determining porting sparse and the infer- case when whether a inference each government’s case. permissive instruction intruded ence is most crucial to the inference background support upon finding process. fact Id at 300. In extensive facts Where Rubio-Villareal, court the inference and reduce the likelihood instructed tainted, instruction is if the defendant was found to be the the verdict will be likely play significant in the driver of a vehicle with cocaine hidden in far less role its jury’s Perhaps empha- body, the could infer he knew the co deliberations. we are spectrum; Knowledge sizing opposite ends of a there caine was there. Id. at ground permissive only disputed in Rubio-Villare be a middle where was the issue al, assists the permissive inference instruction inference instruction *10 Still, misleading. being overly intrusive or government TARVER,
closing argument Plaintiff-Appellant, affords the Laverne ample opportunity counsel and defense may argue be drawn from which inferences America, UNITED STATES of By inviting the district court еvidence. Defendant-Appellee. join process, risks in this error, gaining much introducing No. 93-1388. tangible benefit. Appeals, United States Court of AFFIRMED. Tenth Circuit. May 18, 1994. RYMER, Judge, concurring: Circuit agree it was not reversible While I permissive inference in- give
error to case, say I
struction malice in this must on general are a
that inference instructions normally no
bad idea. There is need pick
court to out one several inferences circumstantial evi- be drawn from possible for that inference to
dence order by jury. Inferences can
be considered instruction; argued of an
be without benefit
indeed, appropriately are more ar- inferences
gued by than accentuated counsel Further, they are a detour
court. because case, applies
from to the infer- the law which away to take the focus
ence instructions tend proved.
from the elements that must be way they goal a disservice to the do
clear, comprehensible concise and statements laypersons jury. on the Bal- law for
anced inference are also difficult instructions And, demonstrates,
to craft. as this case
inference instructions create a minefield on reasons,
appeal. practical For all these as a unnecessary
matter it seems to me both
unwise for inference instructions to be re-
quested, given.