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-1 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 2 UNITED STATES V. LOZOYA

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 of any of these issues, given all of these considerations, the untimely motion does not present the exceptional circumstances that would justify the recall of the mandate in order to protect the integrity of the court’s processes.

Dissenting, Judge Collins wrote that this case meets the very high standard for recalling the mandate in light of the confluence of six unique factors: the en banc court committed a clear error by failing to realize, after rejecting the defendant’s venue challenge, that the issue regarding the standard of proof was no longer moot and should have been remanded back to the three-judge panel; counsel’s failure to call the omission to this court’s attention in a timely petition for rehearing itself raises a substantial issue of ineffective

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. LOZOYA 3 assistance of counsel; the overlooked standard-of-proof issue raises a substantial question on the merits; granting the motion to recall the mandate is the only possible way to consider or redress the substantial question of ineffective assistance that is apparent on the record; the motion is not untimely; and the fact that this is a joint motion eliminates any concerns that the moving party may be engaged in procedural gamesmanship or that important interests in finality are not being adequately respected.

COUNSEL Cuahtemoc Ortega, Federal Public Defender; James H. Locklin, Deputy Federal Public Defender; Office of the Federal Public Defender, Los Angeles, California; for Defendant-Appellant. Tracy L. Wilkison, Acting United States Attorney; Bram M. Alden, Chief, Criminal Appeals Section; Karen E. Escalante, Assistant United States Attorney, Major Frauds Section; United States Attorney’s Office, Los Angeles, California; for Plaintiff-Appellee. 4 UNITED STATES V. LOZOYA

ORDER

The joint motion to recall the mandate is denied. “We have the inherent power to recall our mandate in order to protect the integrity of our processes, but should only do so in exceptional circumstances.” Carrington v. United States, 503 F.3d 888, 891 (9th Cir. 2007).

Federal Rule of Appellate Procedure 40(a) permits a party to file a petition for rehearing within fourteen days after the entry of judgment to bring to the court’s attention any point of law or fact the party contends the court overlooked in deciding the case. Fed. R.