Case o' The Week: The Grinch Who Stole Remand - Newhoff and Jury Readbacks

The Ninth is Santa, gifting a defendant with a finding of plain error on a transcript readback before a Montana jury. United States v. Newhoff, 2010 WL 5128262 (9th Cir. Dec. 16, 2010), decision available here.

The Ninth is The Grinch, taking back its holiday gift with a finding that the error didn't affect Newhoff's "substantial rights," and refusing to remand for retrial. Id.

Players: Decision by Judge Kleinfeld.

Facts: The Montana Office of Tourism will not be linking to Newhoff on its web page. Newhoff was arrested while driving. Id. at *1. The officer who stopped the car said Newhoff passed something to a woman in the back seat. Id. A search of her purse revealed a small pistol. Id. Newhoff was tried federally of being a felon in possession and of possession of a stolen gun. Id. In a separate state case, he was convicted of burglarizing a trailer from which the gun was stolen. Id.

There was a charming cast of characters who testified in the federal trial: Newhoff’s “friends” testified that he had been trying to sell the pistol at “Deano’s casino.” Id. The woman in the back seat, though, conceded that she was drunk when her fiancé and Newhoff had robbed the trailer. Id. at *2. Her fiancé, by contrast, denied robbing the trailer, though he conceded that he had been “tweaking” on meth. Id. None of this motley crew were prosecuted for their various and sundry crimes, which “could suggest an inference that they lied about Newhoff to benefit themselves.” Id.

During deliberations the jury asked for a transcript of all the testimony, and then narrowed their request to one witness: Officer Cochran. Id. With the consent of counsel, the judge agreed to the reading of that one’s witness’s testimony and explained he would give a limiting admonition. Id. The transcript was read, the admonition wasn’t, and no one objected to that omission. Id. at *3. Newhoff was convicted. Id.

Issue(s): “Newhoff argues for a new trial on the ground that by reading back Officer Cochran’s testimony without admonishing the jury not to give it undue emphasis, the district court caused undue emphasis to be given.” Id. at *3.

Held: “[P]lainly the general rule is that if the jury wants a readback, and the court exercises its discretion to allow it, the court should make the jury hear the entirety of the witness’s testimony in open court (except where excessive length makes that impractical and fairness can be assured by using an excerpt preferably agreed upon by counsel), with counsel for both sides and the defendant present, and with an adequate admonition. . . . As to whether the error of reading back Officer Cochran’s testimony without an admonition was plain, we conclude that it was.” Id. at *4.

Of Note: As is too often the case, Newhoff won the error battle and lost the Olano plain error war. Id. at *5. Judge Kleinfeld’s analysis of whether this affected the defendant’s “substantial rights” is not particularly satisfying. After all, “the jury returned a verdict immediately after the readback.” Id. (emphasis added). Judge Kleinfeld assures us that there was no structural error on the case because the witness whose testimony was read back “provided the jury with the strongest evidence for the defense.” Id. And although the government’s witnesses were drunkards and tweakers, “their testimony was plausible and coherent enough so that they might have be believed.” Id. Newhoff – and the insurmountable hurdle of Olano plain error – is another reminder for trial counsel to object, object, object.

How to Use: Newhoff is a good primer on the procedure to be used for jury readbacks. Judge Kleinfeld provides a clean, concise catalog of five points that a readback admonition must cover:

1. that readbacks risk distorting the trial because of overemphasis on one witnesses’ testimony; 2. that both direct and cross examination of the witness will be heard; 3. that the transcript is not evidence – a jury must rely on its recollection of the testimony is; 4. a transcript does not reflect demeanor, tone of voice, and other aspects of credibility only found in live testimony; and 5. the testimony read cannot be considered in isolation, but must be considered in the context of all other testimony and exhibits.

Id. at *4. Keep this Newhoff list handy in the trial binder and make sure readback admonitions hit all these points.

For Further Reading: Judge Kleinfeld explains that Newhoff’s counsel made an “Occam’s razor” defense in closing argument. Id. at *2. The Razor posits, “‘Pluralitas non est ponenda sine neccesitate’ or ‘plurality should not be posited without necessity.’” See explanation here.

Put differently, the theory argues that the simplest explanation is the best – in this case, that the little pistol really belonged to the female passenger because it was in her purse (the simplest explanation for the event). Sadly, that razor doesn’t cut it in Montana.


Image of the Grinch from http://www.laprensatoledo.com/Stories/2007/121207/Grinch.jpg Image of Occam's razor from http://static.neatoshop.com/images/product/68/468/Occams-Razor_1896-l.jpg


Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

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