U.S. v. Wiggan, No. 10-50114 (11-20-12) (Fernandez with Berzon; dissent by Ebel, Sr CJ 10th)

Do you think having a grand jury foreman testify that a defendant lied in testimony might be a tad bit prejudicial? The 9th did, although a dissent from a designated 10th Circuit judge argued otherwise. This case arose from the high profile prosecution of a Hollywood investigator who wire-tapped. The defendant here had contact with some of the players, but she seemed to have had second thoughts, and a supposed recantation. The first trial saw acquittal on many perjury counts, but a hung jury on one count. This count was then retried for grand jury perjury with a superseding indictment alleging a false statement and perjury at trial. At trial, the prosecutor called, and the court allowed, testimony by the foreperson of the grand jury that the defendant's demeanor was untrustworthy and the grand jury did not believe her. On appeal, the 9th reverses all counts. The testimony was too prejudicial. The 9th looked to analogous testimony by judges, which is fraught with deference. It is the same with the testimony of a grand juror, especially the foreperson. The danger the jury would defer to the opinion. Not many courts have dealt with this, but the 9th did look to the 2nd Circuit, where, in upholding the discretion of a court to preclude such testimony, opined as to the danger of having grand jurors testify as to truthfulness. The 9th did reject the defense that she recanted. Indeed, the 9th found that recantation is a legal issue decided by the court. The 9th also rejected the argument there was insufficient evidence. Dissenting, Judge Ebel of the 10th argued that the district court did not abuse its discretion. The testimony was relevant, and went to truthfulness. The testimony was corralled by the district court. Even if it was error, it was not plain error, and it was not prejudicial.

U.S. v. Manning, No. 11-30150 (11-21-12)(per curiam with Kozinski, Tallman and Ikuta).

It is not wise for a defendant, on pretrial release to lie to his probation office, blow off a revocation hearing, and then flee to Mexico. It is especially unwise if the defendant had already been sentenced (11 years for child porn),and was awaiting self surrender. This combination of "don'ts" led to a new charge of felon in possession, and a longer sentence, with obstruction of justice as an enhancement. Wait, the defendant argues, the obstruction went to the child porn sentence, and not to the present charge of felon in possession. The 9th found this was obstructive, because the defendant knew the investigation was underway, lied to the officer, and fled. All of this obstructed the present felon in possession case. This interpretation may be in conflict with the 8th Cir (circuit conflict alert! Get the cert petitions ready) where a subsequent recantation or correction renders the misstatement immaterial. The argument made here was that the defendant admitted his wrongdoing. The 9th responded that it just wasn't backward looking, but that he knew of the present investigation and obstructed it.