
    UNITED STATES of America, Plaintiff-Appellee, v. Daniel WILLIAM, Defendant-Appellant.
    No. 11-50002.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted March 9, 2012.
    Filed April 13, 2012.
    
    Michael J. Raphael, Esquire, Joshua Robbins, Office of the U.S. Attorney, Los Angeles, CA, for Plaintiff-Appellee.
    Jonathan D. Libby, Esquire, Deputy Federal Public Defender, Federal Public Defender’s Office, Los Angeles, CA, for Defendant-Appellant.
    Before: WARDLAW and BERZON, Circuit Judges, and WHYTE, Senior District Judge.
    
    
      
       Opinion withdrawn and superseded on denial of rehearing. For replacing opinion, see 2012 WL 4911814.
    
    
      
       The Honorable Ronald M. Whyte, Senior District Judge for the U.S. District Court for Northern California, sitting by designation.
    
   MEMORANDUM

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 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 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. “[Wjhere 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, 83 S.Ct. 952, 9 L.Ed.2d 978 (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-Villa-real, 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 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, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

REVERSED and REMANDED. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
     