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Ninth Circuit Dissenter Says En Banc Panel Erred, Should Exercise Power to Rectify
By a MetNews Staff Writer
Daniel P. Collins was the lone dissenter yesterday from the decision of an en banc panel of Ninth U.S. Circuit Court of Appeals judges who denied an untimely motion to recall the mandate in a criminal case, with Collins arguing the court plainly botched its handling of the case and should exercise its inherent power to go back and do it right.
The majority—comprised of active Judges Sidney R. Thomas, M. Margaret McKeown, William A. Fletcher, Jay S. Bybee, Sandra S. Ikuta, Jacqueline H. Nguyen, Paul J. Watford, John B. Owens, Mark J. Bennett, and Kenneth K. Lee—did not dispute the dissenter’s proposition that the en banc panel had erred. Rather, it said that “the untimely motion does not present the ‘exceptional circumstances’ that would justify the recall of the mandate in order to protect the integrity of our processes.”
A three-judge panel on April 11, 2019, reversed the conviction of Monique A. Lozoya of assaulting another passenger on a commercial flight from Minneapolis to Los Angeles, who was seated behind her, by whacking him with the back of her hand for repeatedly jostling the seat, precluding her from sleeping. The majority said, in an opinion by Judge Milan Smith:
“Because the parties do not dispute that the assault ended before Flight 2321 entered the airspace of the Central District of California, venue in that district was improper.”
Issue Deemed Moot
In light of the conclusion that venue was improper (a point on which Judge John B. Owens dissented), Smith did not discuss Lozoya’s contention that a magistrate judge imposed an incorrect burden on her.
The Ninth Circuit reheard the case en banc and on Dec. 3, 2020, it affirmed the conviction. Bennett wrote:
“We hold that venue for in-flight federal offenses is proper in the district where a plane lands, and affirm Lozoya’s conviction.”
Lozoya had 14 days from entry of judgment within which to seek a rehearing based on something the panel overlooked. It had, in fact, overlooked her claim that a burden was improperly placed on her, which was no longer moot. The mandate was issued on Dec. 28, 2020; a motion to recall the mandate to permit a petition for rehearing was filed last Oct. 7.
“[T]he motion was filed over 300 days after the filing of the opinion, and is untimely,” the majority said in yesterday’s order.
Collins’s Dissent
Collins said in his dissent that although the U.S. Supreme Court has cautioned that the power to recall a mandate is a “last resort, to be held in reserve against grave, unforeseen contingencies,” he believes “that this case meets that very high standard.”
He argued that “the en banc court committed a clear, if understandable, error in overlooking one of the grounds for reversal that Lozoya had raised on appeal,” and that the case should have been remanded to the District Court to consider the ground. The fact that Lozoya’s lawyer did not point out the error in a timely petition “raises a substantial issue of ineffective assistance of counsel,” the judge pointed out, saying that recalling the mandate is the only means by which this issue can be addressed.
Whether the magistrate’s handling of the issue of self-defense was faulty was a significant issue, Collins wrote, rejecting the majority’s view that any error was harmless.
Not Untimely
He added that the motion was not actually untimely, explaining that the en banc court’s decision had not become final until the U.S. Supreme Court denied certiorari.
“Given that the motion was filed within three days of the decision in this appeal becoming final,” Collins said, “its filing was not unduly delayed.”
The dissenter noted that the United States was joining in the motion, remarking:
“That important fact eliminates any concerns—often present in motions to recall the mandate—that the moving party may be engaged in procedural gamesmanship or that important interests in finality are not being adequately respected.”
The case is United States v. Lozoya, 17-50336.
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