Case o' The Week: Owning Maloney - Sandbagging in Closing Arguments

Hon. Ronald Gilman

Sometimes we complain of the impact that Senior and visiting judges have on our body of Ninth Circuit criminal law.

And sometimes we don’t. United States v. Maloney, 2012 WL 5503664 (9th Cir. Nov. 14, 2012), decision available here.

Players: Decision by Judge N.R. Smith, joined by Judge Tallman. Compelling dissent by visiting Sixth Circuit Judge Ronald Gilman.

Facts: Maloney was arrested at the border and indicted for smuggling marijuana hidden in the cab of a tractor-trailer. Id. at *1. Defense counsel argued in closing that Maloney was set up, explaining that “Hernandez” had hidden the pot in the truck without the defendant’s knowledge. Id. at *8. In rebuttal, the government argued that the defense theory was not credible because Hernandez had done things inconsistent with secretly planting drugs, contended that the timing of the defense version of events was not consistent, and argued that the lack of luggage recovered undercut Maloney’s testimony that he had planned to travel for three days on a legitimate trucking haul. Id. at *11. The defense moved for surrebuttal, arguing that these were new factual theories that were not first made in the government’s closing argument. Id. The district court denied the defense request for surrebuttal; Maloney was convicted. Id.

Issue(s): “Maloney appeals his conviction by arguing that . . . the prosecution raised new arguments in rebuttal and the district court committed reversible error by refusing his request for surrebuttal based on those new arguments.” Id. at *2.

Held: “The district court did not abuse its discretion in denying the defense surrebuttal summation, because the prosecution's statements in rebuttal summation addressed the arguments made in defense counsel's closing argument and were based on permissible inferences from the record. The prosecution only strays from the proper bounds of rebuttal summation when it impermissibly raises new arguments in rebuttal summation . . . The prosecution impermissibly raises new arguments beyond the proper scope of rebuttal summation when the door has not been opened by defense counsel's summation or when the prosecution's arguments are not based on reasonable inferences from the record.” Id. at *1 (internal citations and quotations omitted). “[D]efense counsel opened the door to that information being presented in the prosecutions rebuttal summation by basing its argument on the proposition that the Government had not cast doubt on Maloney’s credibility and had not shown him to be a liar.” Id. at *12.

Of Note: The holding in Maloney ends with this maxim imported (and expanded) from the Eighth Circuit: “The specific content of the prosecution’s arguments are red herrings. Defense counsel opens the door to topics or issues, not specific facts.” Id. This is troubling indeed, and permits prosecutors to sandbag the defense with arguments sprung for the first time on rebuttal. Case in point: in Maloney the AUSA admitted he had intentionally sandbagged by saving factual arguments for rebuttal. 

This concession is detailed in a terrific dissent by visiting Sixth Circuit Judge Ronald Gilman. Id. at *17. Judge Gilman carefully explains how the “luggage” arguments lacked an evidentiary foundation, were intentionally sprung on the defense in rebuttal, and how the Maloney holding would necessarily permit absurd and intolerable sandbagging. Maloney, observes Judge Gilman, breaks with Ninth law on permissible closing arguments. Id. at *18 (citing Gray, 876 F.2d 1411, 1417 (9th Cir. 1989)). 

“En banc petition” should be penned at the top of this compelling dissent.

How to Use: To stave off sharp dissent barbs, Judge N.R. Smith devotes a fair amount of effort of tying this holding to specific facts in the case. Id. at *15. If battling Maloney when sandbagged in closing, hit those limiting facts hard – some defense concessions in the opinion may make it distinguishable from your case.

                                               

For Further Reading: Sr. Judge Gilman is a Clinton appointee. See article here.  Maloney isn’t his first great dissent: he wrote a beautiful dissenting opinion in ACLU v. NSA, where he explained why the Bush administration’s warrantless wiretapping of American citizens was unlawful. See opinion here. 

Here’s hoping the Hon. Gilman visits the West again, and soon.

Image of the Honorable Ronald Gilman from http://www.ourcampaigns.com/CandidateDetail.html?CandidateID=119837

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

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