One of the slightly bad things about having old(er) people around is that they might be stuck in the traditional way of doing things and unjustly resistant to new ideas.
But one of the relatively good things about having old(er) people around is that they might recall things from the past that might potentially be relevant to a current issue.
I say this as someone who's in his late 50's and considers himself somewhat old(er), and although I hope and attempt to avoid the downsides of the first observation, I simultaneously hope and attempt to add value on occasion through the second.
Those were the thoughts that I had on reading this opinion by Judge Gould.
I can't disagree with virtually anything of substance that Judge Gould says. The procedural history of the case is somewhat detailed, but nonetheless relatively straightforward. Back in 2017, Helaman Hansen gets convicted of aiding and abetting unlawful immigration. In 2022, the Ninth Circuit reversed his conviction on these counts because it found the statute unconstitutionally overbroad because it didn't have a specific mens rea requirement. The Ninth Circuit refused to take the case en banc (over some dissent), but last year, the Supreme Court granted certiorari and (over some dissent) narrowed the statute to require a specific mens rea requirement and thus remanded the case back to the Ninth Circuit.
Now, in 2024, the Ninth Circuit reverses the convictions because the jury instructions in the 2017 trial were inaccurate, since they didn't anticipate -- or accurately reflect -- the Supreme Court's subsequent narrowing of the statute in 2023. So we need a retrial with accurate instructions.
Seems right to me.
With one caveat. (This being the point about the value of "old(er)" people above.)
In footnote 2, Judge Gould says: "Hansen also argues that, in light of the Supreme Court opinion, the evidence was insufficient to support these two convictions, and that this subsection of the statute is void for vagueness or otherwise unconstitutional as applied to him. We do not reach these issues and express no opinion on them."
Which, ordinarily, I'd understand. The Ninth Circuit is reversing Mr. Hansen's convictions on these counts anyway, so why bother deciding the (unnecessary) issue of whether these convictions should also be reversed because the evidence was insufficient. No point, right?
But when I read that footnote, I distinctly recalled writing something back when I was a law clerk some 33 years ago. (My goodness; it's been a third of a century. Maybe I should just say "old" at this point.) A little follow-up research revealed the following quote, which (to be clear) is most definitely not from an opinion on which I worked but which nonetheless accurately states the law as I believed it to be not only at the time, but also now:
"Even though we reverse for error in the Jewell instruction, double jeopardy concerns require us to reach Sanchez-Robles's contention of insufficient evidence. See United States v. McKoy, 771 F.2d 1027, 1215 (9th Cir. 1985). 'Because an appellate reversal of a conviction on the basis of insufficiency has the same effect as a judgment of acquittal, the Double Jeopardy Clause would preclude retrial. Therefore, 'the existence of other grounds for reversal does not avoid the necessity of reviewing the sufficiency of the evidence.' Id. (quoting United States v. Bibbero, 749 F.2d. 581, 586 (9th Cir. 1984)."
United States v. Sanchez-Robles, 927 F.2d 1070, 1076 (9th Cir. 1991).
If the law in the Ninth Circuit now is the same as it was back then -- which it seems like it should be -- doesn't this mean that the panel must, in fact, resolve the insufficiency claim, and thus replace footnote two with a resolution of the merits?
