United States v. Roberto A. Miguel, United States of America v. Bryson Jose

Opinion by Judge T.G. NELSON; Opinion concurring in part and dissenting in part by Judge RYMER.

OPINION

Roberto Miguel appeals his criminal convictions for felony murder, attempted robbery, attempted burglary, and several firearms charges. Miguel’s co-defendant, Bryson Jose, appeals his criminal conviction for felony murder. We hold that the district court committed structural error when it precluded the defendants from arguing their theory of the case and instructed the jury that no evidence supported the defendants’ theory. We further hold that Apprendi v. New Jersey 1 does not apply to transfer proceedings that allow the Government to try a juvenile as an adult. Thus, the transfer proceeding was proper, and the district court had jurisdiction over Miguel.

We will also address two of the other claims Miguel and Jose raise because these claims may arise on retrial. We hold that neither second-degree murder, nor voluntary manslaughter, nor involuntary manslaughter is a lesser included offense to felony murder. Finally, we decline to seek en banc review of our opinion in United States v. LaFleur. 2 Thus, we reverse the defendants’ felony murder convictions, reverse Miguel’s…

concurring in part and dissenting in part.

I concur in all but Part III.A of Judge Nelson’s opinion, and in Part III.A to the extent that it concerns the firearm count. I disagree that precluding argument about who did the shooting is structural error on the felony murder charge, because on that charge it does not matter who pulled the trigger as long as it was reasonably foreseeable that a participant would. It does matter on the firearm charge. Therefore, I would affirm the convictions on felony murder, but reverse as to use of a firearm.

If the district court had precluded closing argument on an element of the offense, the majority would be correct under our precedent because we have held that foreclosing argument on an element is structural error. See Conde v. Henry, 198 F.3d 734 (9th Cir.1999); United States v. Kellington, 217 F.3d 1084 (9th Cir.2000). However, we have never held that it is structural error to preclude argument on a theory that is not on an element of the offense. In both Conde and Kellington the defendant was prohibited from arguing that the elements of the offense had been met. In Conde , which was a state prosecution for kidnapping for the purposes of…

338 F.3d 995 UNITED STATES of America, Plaintiff-Appellee, v. Roberto A. MIGUEL, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Bryson Jose, Defendant-Appellant. No. 01-10538. No. 02-10018. United States Court of Appeals, Ninth Circuit. Submitted May 7, 2003 — Honolulu, Hawaii. Decided July 23, 2003. Peter C. Wolff, Jr., Federal Public Defender, Honolulu, HI, for Defendant-Appellant Miguel. Barry D. Edwards, Honolulu, HI, for Defendant-Appellant. Edward H. Kubo, Jr., Marshall H. Silverberg, and Ronald G. Johnson, United States Attorneys Office, Honolulu, HI, for the Plaintiff-Appellee. Before LEAVY, RYMER, and T.G. NELSON, Circuit Judges. Opinion by Judge T.G. NELSON; Opinion concurring in part and dissenting in part by Judge RYMER. OPINION T.G. NELSON, Circuit Judge. 1 Roberto Miguel appeals his criminal convictions for felony murder, attempted robbery, attempted burglary, and several firearms charges. Miguel's co-defendant, Bryson Jose, appeals his criminal conviction for felony murder. We hold that the district court committed structural error when it precluded the defendants from arguing their theory of the case and instructed the jury that no…