Rarely is a case heard initially en banc. But today, that is what the Ninth Circuit ordered.
In United States v. Collazo, et. al., --- F.3d ---, No. 15-50509 (9th Cir. 2019), the Court issued an order for the case to be heard initially en banc. The issue will be "the proper jury instruction under 21 U.S.C. § 841(b) for determining the drug type and quantity involved in a conspiracy offense."
More specifically, based on the briefing, it appears the Court will consider whether the district court is required to instruct the jury that a drug quantity attributable to an individual defendant must be both jointly undertaken in furtherance of that defendant’s agreement and reasonably foreseeable to that defendant. Or, whether the instruction should be in the disjunctive regarding --whether certain drug types and quantities were either “reasonably foreseeable” to an individual defendant or “fell within the scope of his particular agreement.”
