Writing for the Ninth, Judge Canby (left) pens a thoughtful decision refusing to require the defense to unilaterally disclose its rebuttal case. United States v. Bahamonde, __ F.3d __, 06 Cal. Daily Op. Serv. 4595 (9th Cir. April 25, 2006), available here. Good for its rejection of federal agency regs that require notice before calling government agents, the opinion is great for its broader endorsement of defense “surprise.”
Players: Notable win by San Diego Ass’t Kurt Hermansen, opinion by Canby.
Facts: Bahamonde was caught on the border with 27 kg of marijuana in his car. 06 Daily Slip Op. 4595, 4600. He protested that he was a blind mule – an acquaintance who sold him the car must have secretly loaded the drugs. Id. At trial, Bahamonde tried to call an ICE agent who had sat through the whole case. Id. The agent hadn’t investigated the car’s original owner, and was relevant to show that the government hadn’t pursued leads as to the real smuggling culprit. Id. The AUSA objected, because the agent hadn’t been informed that he’d be called under 6 CFR § 5.45(a). This reg requires that a defendant set forth, in writing, the “nature and relevance” of the information sought from Homeland Security. Id. The court agreed, and precluded the defense from calling the agent.
Issue(s): Did the district court err “by excluding the testimony of the government’s case agent, called by the defense, on the sole ground that Bahamonde failed to comply with the Department of Homeland Security’s regulations governing testimony by its employees[?]”
Held:. “We reverse for two reasons: (1) the regulation, which required disclosure by Bahamonde without reciprocal disclosure by the government, violated Bahamonde’s due process rights, and (2) the district court abridged Bahamonde’s Sixth Amendment’s rights by imposing the sever sanction of exclusion of the agent’s entire testimony without weighing the countervailing interests, such as Bahamonde’s constitutional rights, prejudice to his defense, or the availability of alternative sanctions.” Id. at 4599.
Of Note: The Ninth finds the regulation violated due process because it doesn’t provide for reciprocal discovery. Id. at 4602 (discussing Wardius v. Oregon, 412 U.S. 470 (1973)). From Wardius, the Ninth quotes: “It is fundamentally unfair to require a defendant to divulge the details of his own case while at the same time subjecting him to the hazard of surprise concerning refutation of the very pieces of evidence which he disclosed to the State.” Id. at 4603. In the present case, the reg was unfair because the defense was forced to disclose its witness and anticipated defense, “but the government was not required at any time to state what evidence it expected to offer in rebuttal, either from [the agent] or anyone else.” Id. at 4603.
This innocuous language captures a Big Idea: our right to mount an effective defense (or, as the government whines, to “sandbag.”) The defense case at trial is really a rebuttal case – we react after the government tries to meet its burden in its opening case. Just as the government needn’t disclose its rebuttal witnesses, the defense needn’t either – even rebuttal witnesses in the defense case. The important principle from this short opinion is the defense right to surprise. As Judges Canby and Kozinski correctly conclude, because there is no reciprocal discovery obligation for the government in its rebuttal case, the defendant’s right to surprise rises to a constitutional (due process) protection. Canby remembers what AUSAs often forget – if prosecutors want full reciprocal discovery, they should go back to their civil firms and take up insurance defense.
How to Use: Bahamonde obviously guts federal regs requiring pretrial disclosure to government-employee witnesses. The Bahamonde rule, however, may go far beyond these CFR requirements. What about the (public) procedure necessary to get federal tax returns? See 26 USC § 6103. Or local standing orders that impose unilateral discovery obligations on the defense? (Such as a new standing order in the N.D. California . . . ?)
For Further Reading: Judge Canby was appointed by Carter in ‘80. In the 1960's, he served five years in the Peace Corps in Ethiopia and Uganda. See Peace Corps Website here.
Now in his 70's, Canby has advised younger colleagues at the Ninth “that when I start agreeing with them on everything, it’s time for me to go.” Id.
Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org.