                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                 No. 13-50215
            Plaintiff-Appellee,
                                          D.C. No.
               v.                   2:12-cr-00510-PSG-1

DEONDRAE JACKSON,
        Defendant-Appellant.               OPINION


      Appeal from the United States District Court
          for the Central District of California
      Philip S. Gutierrez, District Judge, Presiding

                Argued and Submitted
          June 4, 2014—Pasadena, California

                    Filed June 18, 2014

      Before: Stephen Reinhardt, John T. Noonan,
         and Mary H. Murguia, Circuit Judges.

             Opinion by Judge Reinhardt;
            Concurrence by Judge Murguia
2                  UNITED STATES V. JACKSON

                           SUMMARY*


                          Criminal Law

    Reversing a misdemeanor conviction for violating 18
U.S.C. § 701, the panel held that no rational finder of fact
could have concluded beyond a reasonable doubt that an
identification card the defendant was accused of unlawfully
manufacturing or possessing was, as § 701 requires, “of the
design prescribed by the head of any department or agency of
the United States.”

    The defendant was a maintenance worker at the
Maintenance Center on the Marine Corps Logistics Base in
Barstow, California. The panel wrote that although this is not
one of the more significant criminal cases to reach this court
in recent years, the defendant had little choice but to make
every effort to have his conviction set aside because the
United States succeeded in obtaining the conviction without
proving its case.

    Judge Murguia concurred in the opinion’s description of
the evidence and its determination that no rational finder of
fact could have found beyond a reasonable doubt that the
defendant’s identification card was “of the design prescribed
by the head” of the Maintenance Center or the Marine Corps
Logistics Base.




  *
    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. JACKSON                    3

                        COUNSEL

Davina T. Chen (argued), Glendale, California, for
Defendant-Appellant.

Sharon McCaslin (argued), Assistant United States Attorney;
André Birotte Jr., United States Attorney; and Robert E.
Dugdale, Assistant United States Attorney, Los Angeles,
California, for Plaintiff-Appellee.


                         OPINION

REINHARDT, Circuit Judge:

I. BACKGROUND

    This is not one of the more significant criminal cases to
reach this court in recent years. Yet, because the United
States succeeded in obtaining the conviction of Deondrae
Jackson without proving its case, Mr. Jackson had little
choice but to make every effort to have his conviction set
aside. Fortunately, for him and the justice system, Mr.
Jackson had the benefit of the Federal Public Defender
system, which effectively exposed the obvious holes in the
government’s case. The fine imposed on Mr. Jackson was
only $150, which may seem insufficient cause for invoking
the might and authority of the United States District Court
and the United States Court of Appeals for the Ninth Circuit,
but to Mr. Jackson this case is as important as, if not more
important than, Apple Inc. v. Samsung Electronics Co., Ltd.,
695 F.3d 1370 (Fed. Cir. 2012), rev’g 877 F. Supp. 2d 838
(N.D. Cal. 2012), is to those parties. Given the United States
4               UNITED STATES V. JACKSON

Attorney’s Office’s insistence on prosecuting his case, Mr.
Jackson may well be right, at least from his standpoint.

    Mr. Jackson was a maintenance worker at the Marine
Corps Logistics Base in Barstow, California. To enter the
base, all employees needed a “CAC Card,” which a naval
police officer called to testify described as the “government
card.” An additional, yellow card was issued to employees of
the Maintenance Center, for the purposes of “quick
identification.” There was apparently no secret activity
undertaken at the Maintenance Center, and the yellow card
was required primarily for administrative purposes.

    Mr. Jackson apparently had difficulty keeping track of his
yellow card. Two or three times, he misplaced or lost it and
was required to obtain a new one. The last time Mr. Jackson
lost his card, there appears to have been some confusion as to
why he was not given a new one. The United States says that
it was because he did not have his CAC Card with him, but he
had just been issued a new CAC Card that day, after the
Base’s Chief of Police told the functionary in charge of
dispensing cards to give him one. Then the story goes murky;
it appears that Mr. Jackson himself may have created a new
yellow card, although he insists that it was another
functionary who did so.

    Now come the weighty legal issues. The United States
charged Mr. Jackson with committing the misdemeanor of
“manufactur[ing], sell[ing], or possess[ing] any badge,
identification card, or other insignia, of the design prescribed
by the head of any department or agency of the United States
for use by any officer or employee thereof, or any colorable
imitation thereof, . . . except as authorized under regulations
made pursuant to law . . . .” 18 U.S.C. § 701 (emphasis
                   UNITED STATES V. JACKSON                           5

added). Mr. Jackson appeals his conviction, arguing that there
was insufficient evidence that (1) the yellow card was “of the
design prescribed by the head of any department or agency of
the United States,” and (2) he in fact manufactured or
possessed an unauthorized yellow card.

    Because the evidence introduced at trial does not support
the conclusion that the yellow card Mr. Jackson was
convicted of manufacturing or possessing was “of the design
prescribed by the head of any department or agency of the
United States,” we reverse without reaching his second claim.

II. ANALYSIS

    At trial, the only evidence introduced as to who, if
anyone, had prescribed the design of the yellow card came in
the form of testimony by two Base employees.

    Clarence Sanchez, a radar technician and the president of
the employee union, testified that “when [the badge] first
came in or was first introduced, . . . we [the union] discussed
this with – you know, with management of what this was
supposed to be for.” He did not, however, specify whether
“management” meant that of the Base or the Maintenance
Center,1 or whether it meant the officer or officers in charge
of labor relations, security, or some other Base or
Maintenance Center function. He said nothing whatsoever
about who, if anyone, “prescribed” the design of the yellow
card; in fact, his testimony suggested that the design of the
badge was constantly in flux, seemingly “on a day-to-day”


  1
    While we do not reach the issue, we doubt whether the Maintenance
Center – which counsel for the United States stated at argument was the
relevant issuing “agency” – is an “agency,” as defined in 18 U.S.C. § 6.
6               UNITED STATES V. JACKSON

basis. The only other testimony even tangentially relevant to
who had prescribed the design of the yellow card was the
statement of Jose Rafael Amador, a naval police officer
responsible for checking identification cards, that “the
Maintenance Center came up with” the badge for its
employees. This testimony, too, provided no evidence
whatsoever that “the head of any department or agency”
“prescribed . . . the design” of the yellow card.

    The district court clearly erred in finding that the
testimony adequately supported the charge. Based on the
evidence presented at trial, no rational finder of fact could
have concluded beyond a reasonable doubt that the yellow
card Mr. Jackson was accused of manufacturing or possessing
was, as 18 U.S.C. § 701 requires, “of the design prescribed by
the head of any department or agency of the United States.”

    Mr. Jackson’s conviction is reversed, and he need not pay
the $150 fine.

    REVERSED.



MURGUIA, Circuit Judge, concurring:

    I concur in the opinion’s description of the evidence in the
record and its determination that no rational finder of fact
could have found beyond a reasonable doubt that Mr.
Jackson’s yellow card was “of the design prescribed by the
head” of the Maintenance Center or the Marine Corps
Logistics Base. See 18 U.S.C. § 701. Accordingly, I concur
in reversing Mr. Jackson’s conviction.
