United States v. Monique Lozoya

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-50336 Plaintiff-Appellee, D.C. No. v. 2:16-cr-00598-AB-

MONIQUE A. LOZOYA,

Defendant-Appellant. ORDER

Filed December 13, 2021

Before: 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, Daniel P. Collins and Kenneth K. Lee, Circuit Judges.

Order; Dissent by Judge Collins SUMMARY *

Criminal

The en banc court denied a joint motion to recall the mandate in a criminal case, which presented an issue concerning whether the magistrate judge imposed an improper burden of proof on the defendant.

The en banc court wrote that the motion, which was filed more than 300 days after the filing of the opinion, was untimely; that the record supports the district court’s conclusion that the magistrate judge did not improperly shift the burden to the defendant, despite stray comments; and that any error was harmless beyond a reasonable doubt. The en banc court concluded that although it does not reach the merits…