Cottrell

ORDER

The memorandum disposition filed on February 25, 2009, 312 Fed.Appx. 979 , is amended. An amended memorandum disposition will be filed concurrently with this order. With these amendments, the panel has voted to deny the petition for rehearing and petition for rehearing en banc.

The full court has been advised of the petition for rehearing en banc, and no judge of the court has requested a vote on it. Fed. R.App. P. 35.

The petition for rehearing and petition for rehearing en banc, filed on March 11, 2009, are DENIED.

Subsequent petitions for rehearing and for rehearing en banc may be filed.

AMENDED MEMORANDUM *

William Jensen Cottrell appeals his convictions for conspiracy to commit arson in violation of 18 U.S.C. § 844 (n) and for seven counts of arson in violation of 18 U.S.C. § 844 (i). He also appeals his 100-month sentence. We affirm the conspiracy conviction, vacate the arson convictions and the sentence, and remand for further proceedings.

A. Sufficiency of the evidence

In considering Cottrell’s challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the prosecution. United States v. Daychild, 357 F.3d 1082 , 1096 & n.…

affirming in part and dissenting in part:

I concur in the majority’s conclusion that we vacate the 100-month sentence imposed on all counts. I agree that we reverse the convictions for arson based on the improper exclusion of evidence that the defendant was afflicted with Asperger’s Syndrome. Evidence of Asperger’s Syndrome could have assisted the jury to determine whether Cottrell had the specific intent required for aiding and abetting the commission of arson.

I disagree, however, that evidence that Cottrell was suffering from Asperger’s Syndrome was irrelevant to assisting the jury to determine whether Cottrell participated in a conspiracy to commit arson. I agree with the majority that we use an objective standard to determine whether the criminal acts that fell -within the ambit of the conspiracy were reasonably foreseeable and were carried out in furtherance of the conspiracy, absent a showing that the defendant suffers from a disability that is “both gross and verifiable.” United States v. Johnson, 956 F.2d 894, 898 (9th Cir.1992). But I submit that Asperger’s Syndrome meets these two requirements. Cottrell’s perception of what is reasonably foreseeable could be impaired…