U.S. v. Bonds, No. 09-10079 (6-11-10) (Schroeder joined by Reinhardt; dissent by Bea). The 9th calls the government out in the appeal of the district court's decision from the Bonds steroids/perjury case. The district court had precluded statements under hearsay that supposedly linked Bonds with steroids use. The statements were from the trainer, who delivered samples to a lab employee, saying that the samples came from Bonds. The 9th agreed with the district court, calling a strike on the government, because the residual exception under Fed. R. Evid. 807 was only for exceptional circumstances, and this was not exceptional. It was routine like a fly out. Moreover, the testimony of the trainer about the source may not have been trustworthy. Strike two on the government was that the statements made by the trainer were not authorized by Bonds, and hence were authorized under Fed. R. Evid. 801(d)(2)(C). Finally, strike three against the government was called because the statements were not made within the scope of employment. The trainer was not an agent, so to speak, by being an independent contractor. Bea, dissenting, balks. He argues the call, stating that the trainer was an agent of Bonds, and the statements were of a party opponent nature. He concludes that the district court made bad calls on legal curves and sliders that were still in the evidentiary strike zone.

U.S. v. Navarro, No. 08-50365 (6-11-10) (Kleinfeld joined by Tallman and Trager, D.J.). This appeal from a conviction for importing and possession with intent of drugs involves a duress issue and a grand jury charge. Both are interesting. The defendant argued at trial that he acted under duress. He was being tested by the cartel, and was threatened. The defendant has the burden with duress. In closing, the government argued that there was no evidence of threat. The objection was that the government was requiring an express threat, when the law allows an implied threat. The 9th agreed that duress, and indeed all threats, can be both express and implied (for the latter, "Do this. I have a bomb."). However, it was unclear whether the government was actually arguing express; moreover, and importantly, the court instructed the jury to follow the instruction, which stated that there needs to be an immediate threat. As for the grand jury, the district court charged the grand jury with an instruction that stated that the government had to provide exculpatory evidence and that the prosecutor was credible and trustworthy. The 9th stressed that the exculpatory charge was wrong. The government may have a DOJ policy to present such evidence, but policies may change; there is no legal requirement (isn't that reassuring?). As for the credible instruction, the 9th was troubled, but it was in the benchbook. The 9th turned to the remedy for such an error. Surveying the few grand jury cases, the 9th holds that when there is a verdict of guilty, errors regarding probable cause disappear. Thus, no harm despite a charging foul. (Reasonable doubt vs. probable cause). However, if presented before a verdict, and ruled upon, the court has to consider, under Bank of Nova Scotia, whether such error had substantially led to an improper indictment. Here, though, the verdict was affirmed.

U.S. v. Gamboa, No. 09-30217 (6-11-10) (Alarcon joined by W. Fletcher and Rawlison). The writ of audita querela, which goes to procedural errors, cannot be used to attack a sentence under Booker. The challenge to a sentence must come under 2255.