UNITED STATES of America, Plaintiff-Appellee, v. Darlene SPAN; Jerry Span, Defendants-Appellants

Darlene and Jerry Span, sister and brother, were each convicted in federal court of assaulting a federal officer in violation of 18 U.S.C. § 111 . Their convictions were affirmed on direct appeal, United States v. Span, 970 F.2d 573 (9th Cir.1992), cert. denied, 507 U.S. 921 , 113 S.Ct. 1283 , 122 L.Ed.2d 676 (1993), and they now appeal pro se the district court’s denial of their petition for a writ of coram nobis under 28 U.S.C. § 1651 , and their motion to vacate their federal sentences under 28 U.S.C. § 2255 .

We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we reverse the district court’s denial of the Spans’ section 2255 motion. We find that the Spans were denied their Sixth Amendment right to effective assistance of counsel due to their trial counsel’s failure to offer proper jury instructions, and their counsel’s failure to object to misleading instructions.

I.

The Spans own a building supply store in-Phoenix, Arizona. On April 7, 1988, two federal marshals, David Dains and Garry Grotewold, appeared at the Spans’ store in search of a fugitive, Mickey Michael. The Spans have a brother by that name, and the marshals were mistakenly informed that the brother was the…