Dalibor Kabov and Berry Kabov v. United States

After the Petitioners were convicted of drug trafficking under 21 U.S.C. § 841, this Court held that Section 841 requires a defendant to “knowingly or intentionally” act in a manner unauthorized by law. The jury instructions for their convictions conflict with Ruan’s holding, reflecting an earlier and nowoverturned view of Section 841’s state of mind requirement. The Ninth Circuit, recognizing this, vacated the Petitioners’ convictions on the drug importation counts. But it left intact the Petitioners’ drug distribution conviction—despite Ruan—because it held that the Petitioners had “invited error” on this point, even though the disputed instruction was

1. based on the state of the law before Ruan,

2. proposed by the government, and (3) objected to by Petitioners. That was not the Ninth Circuit’s only error. It also concluded, despite material falsehoods in the testimony of the government’s star witness and other evidentiary errors violating Brady and Napue, that the outcome of the Kabovs’ trial would not have been different. The questions presented are:

3. Whether this Court should grant, vacate, and remand as to Petitioners’ drug distribution convictions in light of Ruan, or in the alternative, grant review to resolve a conflict over the invited error doctrine.

4. Whether this Court should hold this case pending Glossip v. Oklahoma, or in the alternative, determine whether the Ninth Circuit’s treatment of the Brady and Napue violations was error.