                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              APR 13 2012

                                                                           MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 11-50002

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00751-R-1

  v.
                                                 MEMORANDUM*
DANIEL WILLIAM,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding

                       Argued and Submitted March 9, 2012
                              Pasadena, California

Before: WARDLAW and BERZON, Circuit Judges, and WHYTE, Senior District
Judge.**

       Daniel William appeals his conviction after a jury trial for mail theft and

possession of stolen mail under 18 U.S.C. § 1708, for which he was sentenced to



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Ronald M. Whyte, Senior District Judge for the U.S.
District Court for Northern California, sitting by designation.
five years of probation and three months of imprisonment. We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we reverse.

      1. The district court improperly instructed the jury in a manner that

permitted the inference that an element of the crime, which the government was

required to prove beyond a reasonable doubt, had been fulfilled. “When, as here, a

defendant objects to an instruction at trial, we review the district court's

formulation of the instructions for an abuse of discretion.” United States v. Warren,

25 F.3d 890, 898 (9th Cir. 1994).

      To establish mail theft under 18 U.S.C. § 1708, the government was required

to prove beyond a reasonable doubt that it was William’s intent to “deprive the

owner temporarily or permanently of [the letter’s] use and benefit.” The district

court’s instruction that the jury may infer that William stole the letter if it was

“properly addressed and recently mailed,” “never received by the addressee,” and

“found in [his] possession,” relieved the government of its burden to prove that

William intended to deprive the recipients, temporarily or permanently of the

letter. Here, although William “possessed” the letters, they could not have been

received by the addressees—regardless of whether William had stolen them—as

they had only recently been placed in the mailbox. William’s testimony was that

he intended to return the letters to the postal box for delivery. Thus, by permitting


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the jury to rely on the fact of possession while disregarding the timing of the

possession, the instruction relieved the government of its burden to prove intent.

“[W]here intent is a necessary element of the crime, it is error for the court to

instruct the jury that it may, but is not required to, infer the requisite intent from an

isolated fact. There can be no presumption as to intention which would permit the

jury to make an assumption which all the evidence considered together does not

logically establish.” United States v. Rubio–Villareal, 967 F.2d 294, 298-99 (9th

Cir.1992) (en banc) (quoting Baker v. United States, 310 F.2d 924, 930-31 (9th

Cir.1962), cert. denied, 372 U.S. 954 (1963)).

      “A jury instruction need not be unconstitutional for us to find it defective.”

Warren, 25 F.3d at 898 (citations omitted). The jury instruction at issue in this

appeal was “misleading,” “inadequately guided the jury’s deliberation,” and

“improperly intruded on the fact finding process.” Id. Because the jury instruction

undermined the basis for William’s defense, we find that there was a reasonable

probability that it affected the verdict. Rubio-Villareal, 967 F.2d at 296 n.3. We

thus reverse William’s conviction.

      2. Because we reverse William’s conviction, we need not address his

sentence. Nevertheless, we note that the district court’s sentence, which required a




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term of both imprisonment and probation for the same offense, is prohibited under

18 U.S.C. § 3561. See United States v. Forbes, 172 F.3d 675, 676 (9th Cir. 1999).

       3. William requests that we reassign this case to a different district judge,

and the government does not object. We have the “supervisory power under 28

U.S.C. § 2106 to reassign [a] case to a different district court judge on remand.”

Living Designs, Inc. v. E.I. Dupont de Nemours & Co., 431 F.3d 353, 372 (9th Cir.

2005). We choose to exercise that power here and order that the case be assigned

to a different district court judge.

       4. Because we reverse the district court on the jury instruction issue, we do

not reach William’s claim that he was deprived of a fair trial by the district court’s

erroneous grant of the government’s challenge under Batson v. Kentucky, 476 U.S.

79 (1986).

       REVERSED and REMANDED.




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