Thursday, January 31, 2013

U.S. v. Doe, No. 11-10067 (1-31-13)(Smith (DJ DRI) with Fernandez and Berzon)
This is an interesting opinion, explaining Dixon v. U.S., 548 US 1 (2006) which concerns the burden of proof in an affirmative defense case, and extending it to the public authority defense, and by inference to other affirmative defenses. The 9th upholds the district court's denial of the defense argument that the government, not the defendant, bears the burden of proof beyond a reasonable doubt. The 9th, however, vacates the conviction and remands to see if discovery requests, focused on FBI meetings with the defendant concerning drug cases, yielded any information. The district court had denied the request as "over-broad," which it was not, given the proffered defense. If the error is deemed harmless, then the conviction is reinstated. The remand also covers whether any information would be Brady.  Finally, regarding sentencing, the 9th vacates and remands for a slew of procedural errors: miscalculation of the guidelines, failure to rule on objections, and not giving the parties an opportunity to advocate for a sentence. The court's error was plain.

Returning to the affirmative defense, the 9th explains that Dixon relates to whether an affirmative defense negates an element of the offense, or whether the defendant committed the offense knowingly, but has an explanation.  In Dixon, the defense was duress over the purchase of a firearm. Here, with a public authority defense, the defendant argued that he acted to set up a drug sale so he could act as an informant. He did so because he believed the government (FBI) wanted him too. He was apparently wrong. At trial, he argued the gov't bore the burden. The 9th held he did. His actions were knowingly, and he knew he was committing an offense, although he believed he had reasons. The 9th explains the cases at length and provides a good overview. This case is the starting point for further affirmative defense analyses.

Congratulations to AFPD Carolyn Wiggin, FPD ED Calif (Sacramento).
U.S. v. Jesus-Casteneda, No. 11-10397 (1-30-13)(Bea with Wallace and Restani)
The drama that is trial is driven home when a witness appears in disguise. Does it violate the Confrontation Clause? The 9th holds that it does not, affirming a drug conviction. The witness in this case was a CI. Deep undercover in the Sinaloa Cartel, he testified as to defendant's actions wearing a wig and a fake mustache. He did so because the government stated that he was at risk. The defense objected, arguing that the court could be sealed, and the witness protected by other means. The district court said this was not a "close question." The 9th pondered the disguise, and the need under the Confrontation Clause to assess credibility. The 9th concluded that confrontation was not violated because (1) the gov't showed that it had a state interest (safety); and (2) the witness was (a) physically present; (b) under oath; (c) cross examined; and (4) the jury could hear his voice, see his eyes, and observe his body and partial face. The 9th acknowledged that there might be a due process violation given the impression conveyed that the defendant was dangerous. The 9th sidestepped ruling on due process issue because, even if there was error, it was harmless beyond a reasonable doubt.


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