Sunday, August 17, 2014

Case o' The Week: Do The Right Thing - Mageno, Waiver, and Prosecutorial Misstatements During Closing Argument

 In Maloney, the government acknowledged error – but only during an en banc argument, and only when pinned down after a truly excruciating exchange with the Court.
   Far better, it appears, for the government to Do The Right Thing and flag error when it sees it. United States v. Mageno, 2014 WL 3893792 (9th Cir. Aug. 11, 2014), decision available here.

Players: Decision by Judge Berzon, joined by Judge Fisher. Dissent by Judge Wallace.

Hon. Marsha Berzon
Facts: Nancy Mageno’s godson dealt drugs, and Mageno translated for him. Id. at *1. A DEA agent heard her on a half-dozen calls, of suspicious nature – but not expressly mentioning meth. Id. at *1-*2. She testified at trial that she did not know her godson dealt drugs, and her godson testified on her behalf. Id. at *3. Over defense objection, the government was limited to one specific question of the godson regarding his prior deportation: he was asked if he was deported for trafficking meth. Id. at *4. From that sole question, the government argued (repeatedly) at closing that Nancy Mageno knew her godson had been previously deported for meth. Id. at *3-*4. No facts in evidence supported that argument. The defense did not object at trial or on appeal after Mageno was convicted. Id. at *4. The first flag was when the government raised this error in its appellate briefing. Id.

Issue(s): “[T]he government raises, as separate error, the prosecutors’ repeated misstatements during closing argument that [the godson] had testified to [the godson’s] deportation for dealing drugs. Mageno did not object to the government’s misstatement of [her godson’s] testimony at trial, did not raise this argument in her opening brief, and did not adopt it as a ground for reversal until oral argument. Should we consider the government’s error under these circumstances?” Id. at *4.

Held: “We conclude that we should.” Id.

Of Note: The ultimate holding – that the prosecutor’s arguments rose to plain error – is great. What is particularly interesting, however, is Judge Berzon’s thoughtful discussion of waiver. Over Judge Wallace’s dissent, Judge Berzon carefully works through the practical impact, and the historical background, of Rule 52. Id. at *5-*7. Waiver is an important appellate principle, and Mageno’s analysis is worth a careful defense read (particularly the Court’s emphasis on the nature of this criminal case, and the fact that a government representative erred). Id. at *7.

How to Use: To get to reversal, Judge Berzon must navigate the treacherous shoals of Olano plain error. She does so admirably, and the result is a very useful discussion regarding a prosecutor’s misstatements at closing argument. Id. at *7-*12. Of particular interest is the rejection of the general cautionary jury instructions as a “cure-all.” Id. at *9. Those instructions were never expressly tied to the misstatements, so did not vitiate the error. Id. Judge Berzon also rejects the government’s attempt to salvage the conviction by arguing the prosecutor did not intentionally misstate the evidence. Id. at *11. The prosecutor’s statements may not have been intentional misconduct, but they were “exceedingly reckless.” That, Judge Berzon explains, is enough. Id. at *12. Judge Berzon rightly ends the decision by commending the government for “bringing the missteps in this case to our attention,” but because “the government also created the problem” concludes the Court must “reverse Mageno’s conviction so that she may have an untainted shot at maintaining her innocence without the prosecution’s damaging misstatements.” Id. at *12.
For Further Reading: Seven years ago, the formidable Judge Betty Fletcher wrote a beautiful dissent attacking the use of acquitted conduct as relevant conduct at sentencing – using the Sixth Amendment as the foundation of her argument. See blog on Mercado here. 
  Is the Sentencing Commission finally coming around to Judge Fletcher’s view? In its official list of priorities, the Commission promises a multi-year effort to “simplify the operation of the guidelines,” including the examination of the “use of acquitted conduct in applying the guidelines.” See Notice here.  
   A spark of interest, worth fanning into a flame over the upcoming year. 

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Steven Kalar, Federal Public Defender N.D. Cal. Website at


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Wednesday, August 13, 2014

United States v. Orozco, No. 13-30199 (Goodwin with McKeown and Watford). 

The Ninth Circuit affirms a marijuana manufacturing charge and use of a weapon in a drug trafficking offense.  The court held that a brief mention of the defendant's right to consular access during the testimony of officers who were explaining how the Miranda warnings were read did not require a mistrial.  The mention was fleeting and the testimony conveyed only that the defendant was a citizen of another country, not necessarily that he was present illegally in the United States (a crime for which he was not on trial).  Nor was the district court required to give a curative instruction, because that would have needlessly emphasized this testimony.  The court also held that the district court has discretion not to allow the defendant to testify at trial once the evidence has closed.  Although a defendant generally does have a constitutional right to testify on his own behalf, he may not sit in silence as the government's case unfolds, listen to the prosecutor's closing argument, and only then decide that he wants to take the stand.  Because the request came so late in the trial, the Ninth Circuit upheld the trial judge's decision not to reopen the evidence.  The defendant never explained what his proposed testimony would contain or why he waited so long to decide to testify.

Stanley v. Chappell, No. 13-15987 (Fletcher with Tallman and Bybee). 
In this capital habeas case, the Ninth Circuit held that there is no interlocutory appeal under the collateral-order doctrine from a stay and abeyance order under Rhines v. Weber, 544 U.S. 269 (2005).  And in this case, because it was unclear whether the petitioner was required to exhaust his claims relating to his competency to stand trial, the court declined to construe the appeal as a petition for writ of mandamus.

Sunday, August 10, 2014

Case o' The Week: Pressure (but not enough . . .) - Carr and Suggestive Pretrial Identifications

  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 available here.

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. at *11-*12. 
   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.
  Fields 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 agent.

How to 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.
For 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 . . . . 

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Steven Kalar, Federal Public Defender N.D. Cal. Website at


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