Unpublished Disposition, 859 F.2d 924 (9th Cir. 1988)

MEMORANDUM^* 

The merits of the case involve the question of whether federal constitutional error was committed when the court instructed the jury that the transactions involved in the case were securities. In a decision rendered after this case was tried, the California Supreme Court disapproved an instruction informing the jury that as a matter of law an instrument involved in a financial transaction was a "security." People v. Figueroa, 41 Cal. 3d 714 (1986). This issue of whether a particular instrument qualifies as a security was held to be a question of fact to be decided by the jury. Stewart appealed to the California Court of Appeal which, in applying the Figueroa case, held that the instruction in this case was federal constitutional error; however, the court considered the error to be harmless and declined to reverse. The California Supreme Court denied the petitioner's petition for review.

The issue in this appeal involves the illusive question of whether a determination is a question of fact or whether it is a conclusion of law. When it is a question of fact it is, of course, a matter to be decided by the jury. The California Supreme Court in Figueroa has decided that the determination of whether a particular instrument involved in a financial transaction is a security is a question of fact for the jury, regardless of the strength of the prosecutor's evidence.

The authority in this circuit is to the contrary. We have held in numerous cases that when the facts are undisputed, and as a matter of law those facts establish the element of the crime, it is appropriate for the judge to instruct the jury on the legal significance of those facts. United States v. Eden, 659 F.2d 1376, 1380 (9th Cir. 1981); United States v. Jackson, 436 F.2d 39, 41-42 (9th Cir. 1970), cert. denied, 403 U.S. 906 (1971); Brown v. United States, 334 F.2d 488, 491-92 (9th Cir. 1964) (en banc), aff'd, 381 U.S. 437 (1965); id. at 497-501 (Duniway, J., concurring). This principle has been applied in this circuit in the particular circumstances of a trial in which an issue was whether a "security" was involved. United States v. Fishbein, 446 F.2d 1201, 1207 (9th Cir. 1971), cert. denied, 404 U.S. 1019 (1972).

In the case at hand, the facts were undisputed, and it is clear under California law the instruments sold were securities. Thus, under Ninth Circuit authority, no federal constitutional error was committed in giving the instruction. Furthermore, we agree with the California Court of Appeal that, even under the Figueroa view of error, the error was harmless.

AFFIRMED.