Case o' The Week: The Defense defends -- Surprise! Hernandez-Meza, Rule 16 Discovery, and Re-Opening Government Case
“[A] criminal defendant, unlike the government, needn't have a good faith belief in the factual validity of a defense. So long as the defendant
doesn't perjure himself or present
evidence he knows to be false . . . he’s
entitled to exploit weaknesses in the prosecution's case, even though he may
believe himself to be guilty.”
|Hon. Chief Judge Alex Kozinski|
Your parents don’t understand this about your job, your AUSAs are often offended by this very concept, and sometimes it feels like even your district court has forgotten this truth.
Take heart. The Chief gets it. United States v. Hernandez-Meza, 2013 WL 3112562, *3 (9th Cir. June 21, 2013), decision available here.
Players: Decision by CJ Kozinski, joined by Judges Wardlaw and Gould. Big win for Federal Defenders of San Diego AFD Harini Raghupathi.
Facts: Through cross-examination, Hernandez-Meza fought illegal reentry charges at trial on a derivative citizenship theory. Id. at *1. After both sides had rested, the defense submitted proposed jury instructions supporting that theory. Id. In response, and arguing it was “surprised,” the government moved to reopen its case-in-chief and introduce the naturalization certificate of Hernandez-Meza’s mother. That certificate bore a citizenship date that destroyed the defendant’s derivative citizenship argument. Id. Over repeated defense objections the district court allowed the government to reopen the case; the defendant convicted. Id.
Issue(s): “Hernandez–Meza [argues that]: (a) the government was not surprised and could have proffered the naturalization certificate before it rested its case; and (b) the government was, in any event, not entitled to introduce the naturalization certificate because it had failed to produce it during discovery.” Id. at *2.
Held: “We vacate the conviction and remand for an evidentiary hearing into whether the prosecution's failure to disclose the certificate in discovery or at any point before the proofs had closed was willful. If it was willful, the district court shall impose appropriate sanctions. The district court shall, in any event, dismiss the illegal reentry count of the indictment on account of the STA violation, with or without prejudice, depending on its weighing of the relevant factors. . . . We are perturbed by the district court’s handling of the reopening issue. The court persisted in giving a reason for allowing the government to reopen that was contradicted by the record, despite defense counsel's repeated attempts to point out the error. The court also ignored defendant's twice raised Rule 16 objection and made a questionable ruling regarding defendant's Speedy Trial Act claim. [W]e conclude reassignment is appropriate, and we so order.” Id. at *8 (internal citations and quotations omitted).
Of Note: CJ Kozinski lampoons the government’s claim of “surprise” when Hernandez-Meza pursued a defense – through impeachment – that he knew wasn’t true. The Chief explains, “[A] criminal defendant needn't have a good faith belief in the factual validity of a defense. So long as the defendant doesn't perjure himself or present evidence he knows to be false—and Hernandez–Meza presented no evidence at all—he's entitled to exploit weaknesses in the prosecution’s case, even though he may believe himself to be guilty.” Id. at *3.
Warms the heart to read an affirmation of what we all know is true: the “pursuit of truth” isn't part of defense counsel's job description.
How to Use: Gutsy move, right? Brave to mount a derivative citizenship attack when defense counsel knew that the government had the mother’s citizenship certificate and was ready to blow the theory out of the water?
Gutsy, yes – except defense counsel didn’t know about the certificate. Although the AUSA had it, the government remarkably did not disclose the certificate during Rule 16 discovery, and didn’t reveal it until it moved to reopen the case.
Fair to say our Chief was unimpressed with the government’s gambit: “The record suggests that the government may have deliberately withheld the naturalization certificate from Hernandez-Meza . . . . If the government willfully withheld the certificate, then it should be precluded from introducing the document at any retrial of Hernandez-Meza.” Id. at *7.
This little illegal reentry opinion is a wonderful and important discovery decision: CJ Kozinski explains what real Rule 16 discovery means, and puts real teeth into the remedy for a violation. Id. at *6-*7. Milke, W.R. Grace, Stever -- Hernandez-Meza now joins this proud line of thoughtful Ninth discovery jurisprudence.
For Further Reading: Alleyne, Descamps, and Davila: three recent Supreme Court cases that profoundly and immediately affect federal practice. To untangle this imposing trio, start with the great summaries and links available here.
Image of the Honorable Chief Judge Alex Kozinski from http://azatty.files.wordpress.com/2012/03/kozinski-4-lo.jpg
Steven Kalar, Federal Public Defender ND Cal. Website at www.ndcalfpd.org