In an opinion today in United States v. Collazo, a limited en banc panel of the Ninth Circuit ruled by a 6-to-5 vote that a conviction for conspiracy to distribute drugs does not require proof of a level of criminal intent greater than that required for the underlying drug-distribution offense. The court divided along ideological lines: all of the members of the majority were appointed by Republican presidents, and all the dissenters were appointed by Democratic presidents.
The case nicely illustrates how the Ninth Circuit’s use of a limited en banc panel of 11 judges—the chief judge and ten other judges selected randomly—can result in draws that give Republican appointees a majority on the en banc panel. As I have pointed out before, the odds of such a draw are much higher than four years ago, as President Trump’s ten appointments to the Ninth Circuit have had the net effect of moving that court from a whopping 18-7 Democratic majority to a much tighter 16-13 majority.
