by United States Court of Appeals for the Ninth Circuit

“ The Supreme Court has held that when a general verdict may be based on a legally inadequate ground, such as because of a statutory time bar, the verdict should be set aside. See Yates v. United States, 354 U.S. 298, 312 (1957) overruled on other grounds, Burks v. United States, 437 U.S. 1 (1978) .1 This is because: Jurors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law — whether, for example, the action in question . . . is time barred . . .. ”

“ The Mendoza court's analysis focused on the fact that the omitted instruction went to an element of the offense. See id. Noting that the prosecution bears the burden of prov- ing every element of a crime, the court concluded that, "when a trial judge omits an element of the offense charged from the jury instructions, it deprives the jury of its fact-finding duty and violates the defendant's due process rights. " Id.; see also Perez, 116 F.3d at 846-47 (concluding that a district court's failure to instruct the jury on an element of the charged offense was plain error) ”

“ On or about July 24, 1992, defendant Fuchs altered an exchange agreement between the Forest Service and an airtanker operator by entering the serial numbers of three C-130A aircraft that had been exchanged with the airtanker operator three years earlier but had not been indicated on the face of the agreement, and substituting the serial number of a P-2V that had been accepted by Fuchs for the exchange of a C-130A aircraft. ”

“ Between on or about April 3, 1989, and February 4, 1991, defendants Reagan and Fuchs "did knowingly and intentionally embezzle, steal, purloin, and convert to their own use or the use of another, property of the United States."
GRABER, Circuit Judge, dissenting: I respectfully dissent. The majority opinion raises an issue that no party raised at any level of these proceedings and then decides that issue incorrectly. The majority opinion misappre- hends this circuit's law on the requirements for a conspiracy indictment; discovers "plain error" where there was none ”

“ FOOTNOTES 1 The dissent contends that the Supreme Court's decision in Yates is inapplicable here. To the contrary, we believe that it directly controls. In Yates, the Supreme Court found that the court's jury instructions improp- erly included an invalid object of the conspiracy. 354 U.S. at 311-12. Theovert acts that were charged in the conspiracy could have just as readily supported a valid ground as an invalid ground. See id. Because it was impossible to discern which overt acts the jury relied upon in their convic- tion, the Supreme Court reversed. ”

“ Fred Albano Fuchs and Roy Reagan appeal their convic- tions and sentences for conspiring to commit offenses against the laws of the United States. We have jurisdiction pursuant to 28 U.S.C. S 1291 and reverse.
I. The United States Forest Service has traditionally relied on contracting with private parties to provide airtanker services for fighting forest fires. In the 1980s, the airtanker fleet con- sisted of C-119 twin engine, propeller-driven aircraft obtained from the military. After several crashes of C-119s due to structural defects, the C-119 fleet was grounded in 1987. ”

“ The Air Force would declare that the aircraft were excess property and transfer the aircraft to GSA, thereby mak- ing the aircraft available to other government agencies. Apparently, Albee stated that the government agencies that received excess aircraft were required to retain ownership of the aircraft.
Fuchs was given responsibility for coordinating the Forest Service's exchange program. He did some research into the regulations and also obtained copies of exchange agreements that Reagan had used in previous transfers involving the mili- tary. ”

“ Mann, 161 F.3d 840, 857 (5th Cir. 1998) . 2 The Olano court stated that a specific showing of prejudice was required " [i] n most cases," but declined to decide whether a showing of prejudice always was required. ”

“ This inaccuracy was contin- ued when the investigator presented time line charts that also indicated that Fuchs had signed for the Forest Service. Addi- tionally, the investigator did not fully explain the timing of Fuchs' retention of an attorney.
The district court's determination of whether alleged pro- secutorial misconduct before the grand jury requires dismissal of an indictment is reviewed de novo. United States v. De Rosa, 783 F.2d 1401, 1404 (9th Cir. 1986) . "Dismissal of an indictment is considered a `drastic step' and is generally dis- favored as a remedy." ”