She was squeezed until she cracked.
(But her pretrial IDs are still admissible . . . .)
United States v. Carr, 2014 WL 3805588 (9th Cir. Aug. 4, 2014), decision
Players: Decision by Judge Christen, joined
by Judges Pregerson and Berzon.
Facts: Lanita Fields was a cooperating
witness in a bank robbery trial. Id.
at *1-*3. Fields testified that on the morning of the robbery, an old boyfriend
called and asked her to meet him. Id.
at *1. She did, and was introduced to a number of other men. Id. She drove with the group to a “Vons
Credit Union”, which the men then robbed. Id.
at *2. Guns were used, and fired. Id.
Eighteen months later, a
federal agent interviewed Fields and showed her pictures of suspected robbers. Id. at *7. The interview was audio
recorded, but not videotaped. Id. at
*4-*5. Conflicting evidence suggested the agent showed Fields twelve photos, or
ten photos, or three photos (of three suspects). Id. at *4.
cried, there was pressure to cooperate, and she then identified three robbers
out of the pictures. Id. The co-defendants
jointly moved to exclude this pretrial identification at trial: the motion was
denied. Id. at *4. The defendants were
convicted after a jury trial.
Issue(s): “All three defendants submit that
[the district court’s denial of a motion to exclude Fields’s pretrial
identification] was error, arguing that the pretrial identification procedure
was impermissibly suggestive and unreliable.” Id. at *4.
Held: “We conclude that
the district court did not deny defendants due process by ruling that [the
agent’s] interrogation technique was not impermissibly suggestive; the technique
he used did not present a substantial likelihood of irreparable
misidentification.” Id. at *7. “We
agree that the eighteen-month delay gave the jury a powerful reason to discount
Field’s testimony. But because we conclude that procedure used to interrogate
Fields was not impermissibly suggestive, we find no error in the trial court’s
decision to allow the jury to weigh this testimony.” Id.
Of Note: Is an agent’s pressure to cooperate,
alone, enough to render an out-of-court identification inadmissible? Not here,
concludes Judge Christen. Id. at *6.
She compares the agent’s pressure to cooperate against other factors – like deprivation
of food, friends, and counsel, extended interrogation, or subjecting a mentally
disabled witness to misleading questioning. Id.
Pressure to snitch doesn’t measure up, she concludes.
It is a disappointing
ruling – those in the trenches know that the pressure to snitch is often overwhelming,
and can create huge incentives for (mis)identifications intended to appease a threatening
Use: The good news (such as it is) comes
for one of the co-Ds who wasn’t there during the robbery. There was no evidence
he had a gun, or knew of his co-defendants’ use of guns. Id. at *11. The district court granted his motion for judgment of
acquittal for a (heavy) Section 924(c) charge, and the Ninth affirmed against
the government’s cross-appeal. Id.
Not enough, Judge Christen explains, that this was a “takeover” type robbery –
more evidence that guns will be in the mix is required. Id. at *11-*12.
Further Reading: Three hundred and thirty-six ND Cal drug
offenders may be eligible for relief, from the retroactive application of the
-2 drug amendment. See USSG Commission analysis here , at pg 10 (Table 2).
Ninety-five or so of those inmates may be eligible for
release at the earliest possible date: Nov. 1, 2015. Id. at Appendix, Table 8. The FPD is on it: lists are being created,
motions drafted, proposed orders are underway. When the names of the first eligible
inmates are known, we’ll offer training to CJA counsel who wish to represent
their own clients.
Interestingly, NorCal has less than half the inmates eligible
for relief than that of any other California federal district. Id. We must be particularly law-abiding folk, up here among the
redwoods . . . .
Image of the NorCal flag from http://www.coolchaser.com/graphics/tag/nor%20cal
Labels: Christen, Evidence, Pretrial Identifications, Section 924(c), Suggestive Identifications