Metropolitan News-Enterprise


Monday, October 6, 2003


Page 3


Ninth Circuit to Review Ruling Precluding Claim Gun Was ‘Antique’


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals Friday granted en banc review of a panel’s ruling that a defendant could not claim that a gun used in a series of robberies was an “antique” after a previous jury ruled against him on the issue.

In a brief order signed by Chief Judge Mary M. Schroeder, the court said a majority of its unrecused active judge had agreed to have an en banc panel reconsider the April 24 decision in United States v. Arnett, 00-30189.

Timothy W. Arnett was arrested in 1995 after an Oregon bank robbery. While in custody, he admitted to several California robberies as well, and was charged in the Eastern District of California and in the Southern District of Oregon with a total of seven bank robberies, all involving the use of a firearm.

He was tried first in Oregon, and—representing himself—claimed that he could not be convicted of using a firearm because the short-barreled shotgun used in the robbery was an “antique,” defined by statute as one having been manufactured before 1898. Prosecutors argued otherwise, however, and the jury found Arnett guilty.

The Ninth Circuit affirmed in an unpublished memorandum.

Prior to his California trial, U.S. District Judge Robert E. Coyle ruled that Arnett was collaterally estopped from claiming that the same gun was an antique. He was convicted on all counts.

Judge Richard Tallman, writing for the panel, agreed with the district judge.

“Collateral estoppel is not applied in criminal cases ‘with the hypertechnical and archaic approach of a 19th century pleading book,’ but rather with ‘realism and rationality,’” Tallman explained, citing Ashe v. Swenson, 397 U.S. 436 (1970).

Here, the judge said, application of the doctrine is appropriate. The factual issue raised in the second trial is identical to that raised in the first—the defendant having admitted that he used the same gun in all of the robberies—and the issue was fully litigated in the first trial and necessarily resolved against the defendant, Tallman said.

Application of the doctrine to bar a defense in a criminal case does not violate constitutional due process under Ninth Circuit precedent, the judge went on to say, citing United States v. Bejar-Matrecios, 618 F.2d 81 (9th Cir. 1980), and United States v. Colacurcio, 514 F.2d 1 (9th Cir. 1975).

The Bejar-Matrecios court held that a defendant who pled guilty to an earlier charge of illegal reentry following deportation could be estopped from relitigating the legality of his reentry in a later case. In Colacurcio, a defendant previously convicted of a gambling violation on the basis of evidence he received “protection payments” was precluded from denying receipt of those payments in his later prosecution for tax evasion.

“We follow our court’s precedent and hold that the district court did not err in applying collateral estoppel to bar Arnett from relitigating the Oregon jury’s determination that the shotgun he used in all of his robberies was not an antique,” Tallman wrote. “On the facts of this case, we see nothing unfair in applying the doctrine to bar Arnett’s defense. This is a classic example of the proper application of collateral estoppel.”

Tallman distinguished cases in other circuits barring the use of collateral estoppel to relieve the prosecution of its burden to prove every element of the charged offense. Arnett’s claim that his gun was an antique is an affirmative defense, the judge noted, adding that the Ninth Circuit precedents are controlling in any event.

Judges Stephen S. Trott and Pamela Ann Rymer concurred.

The Ninth Circuit also granted en banc review Friday in United States v. Doe, 02-10170.

The issue in the case is whether failure to bring a juvenile to trial within 30 days after certification for federal juvenile proceedings violated the speedy trial rule. The three-judge panel said it did.


Copyright 2003, Metropolitan News Company