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Last week, an 11-judge Ninth Circuit U.S. Court of Appeals panel ruled that a federal criminal defendant could still raise a defense that had been unsuccessfully argued in another federal prosecution. But how the court got to that ruling is an odd story. Two weeks before oral argument in a case pending for eight years, the government conceded it shouldn’t have prevailed before a three-judge panel. The panel, the government decided, got it wrong. Timothy Wayne Arnett’s appeal of a bank robbery conviction was supposed to be argued before 11 judges earlier this month. Instead, the case was submitted on the briefs. On Christmas Eve, the en banc court issued a terse order vacating the earlier 3-0 panel decision that upheld Arnett’s convictions on several counts relating to the use of a firearm during a crime of violence. Clearly miffed, the order explained that “only two weeks before these 8-year-old cases were scheduled for oral argument before this en banc court, the United States filed a supplemental brief in which it confessed error.” That brief, filed Nov. 25, noted that “in federal criminal trials, the United States may not use collateral estoppel to establish, as a matter of law, an element of an offense or to conclusively rebut an affirmative defense on which the government bears the burden of proof beyond a reasonable doubt.” That’s the opposite of what Judges Richard Tallman, Stephen Trott and Pamela Rymer had decided back on April 24. Writing for the conservative panel, Tallman acknowledged that other circuits had gone the other way. But he wrote that “common-sense judicial administration supports the application of collateral estoppel in criminal cases.” Part of the problem may have been that Arnett represented himself. After the court appointed Sacramento Assistant Federal Public Defender David Porter to represent Arnett before the en banc (Arnett later asked that Porter be removed from the case, then rescinded the request), the direction of the case changed. “It took about five minutes” to locate a controlling Supreme Court case, Porter said. There is some question about whether the case changes Ninth Circuit law, which Porter said has recognized collateral estoppel against criminal defendants through a 30-year-old decision that had incorporated a district court ruling dating to 1959. Even though the decision comes in short order without discussion of the issues, Porter said the law is now clear in the Ninth Circuit. “I think the government is now judicially estopped from arguing the contrary,” Porter said. Which could mean a change for state criminal trials as well. California law recognizes collateral estoppel. Arnett was caught robbing a bank in Oregon. He later confessed to seven more robberies in California. In addition to bank robbery, the government charged him with using a firearm during a crime. But the statute doesn’t apply to antique firearms produced before 1898, and Arnett argued that his gun fit that description. A federal judge in Oregon rejected the claim, and Arnett was convicted on those counts. During his trial for the California robberies, Arnett asserted the same defense. But the judge said the issue had already been decided and barred Arnett from asserting the defense. The three-judge Ninth Circuit panel decided the case without oral argument. It appears Arnett was a pro se litigant at the time . Dawrence Rice Jr., the assistant U.S. attorney in Fresno who handled the case, was unavailable. The Ninth Circuit let the Oregon convictions stand.

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