Sunday, March 02, 2014

Case o' The Week: Tagging Sandbagging - Ninth, Maloney and Improper Rebuttal Argument

Sometimes a (video) is worth a thousand words . . . .
United States v. Maloney, No. 11-40311 (9th Cir. Feb. 28, 2014) (en banc) (Ord.) , decision available here.

Players: En banc order by Judge Wardlaw, joined by: CJ Kozinski, Judges Pregerson, Thomas, McKeown, Fletcher, Paez, Rawlinson, Clifton, N.R. Smith, and Hurwitz (with Judge Smith concurring in the result only).

Facts: In Nov. 2012, the Ninth issued an opinion upholding a refusal to allow a trial surrebuttal for the defense, when the government raised new factual arguments for the first time in rebuttal. Maloney, 699 F.3d 1130, 1143-45 (9th Cir. 2012); see also blog here
   Visiting Circuit Judge Gilman wrote a terrific dissent, where he quotes from the oral argument with AUSA admitting that he was sandbagging. Id. at 1149 

Judge Gilman: Alright, then why didn't you raise this [lack-of-luggage] argument in your first argument on summation? 
Assistant U.S. Attorney, Steve Miller: Because I don't believe that I needed to. 
Judge Gilman: Aren't you sandbagging a bit—to wait for rebuttal? 
Miller: Yes I was.”


   The Ninth voted to take the case en banc: it was argued in Sept. 2013. United States v. Maloney, No. 11-40311 (9th Cir. Feb. 28, 2014) (Ord.), at 4. 
   How did the argument go? Suffice it to say that Chief Judge Kozinski advised the AUSA to take the video of the oral argument back to the San Diego United States Attorney’s office, watch it with the United States Attorney, and “see whether this is something that you want to be teaching your line attorneys, your Assistant AUSAs, that this is proper conduct . . . . sometimes the right thing to do is to confess error.” See Maloney En Banc Argument here at 59:00.      

Issue(s): What happened after the San Diego United States Attorney watched the video of the oral argument?

Held:On October 7, 2013, the United States Attorney for the Southern District of California, Laura Duffy, filed a Motion to Summarily Reverse the Conviction, Vacate the Sentence and Remand to the District Court. In that motion, the United States Attorney represented that she and several senior attorneys in her office had reviewed the video of the en banc oral argument and reconsidered the closing arguments made in the district court. They thereafter concluded that ‘no reference should have been made to luggage in rebuttal argument.’ The United States Attorney’s Office also stated that it planned to ‘use the video of the [en banc] argument as a training tool to reinforce the principle that all Assistant U.S. Attorneys must be aware of the rules pertaining to closing argument and must make every effort to stay well within these rules.’” Maloney, (Ord.), at 4-5.... “Accordingly, we GRANT the motion to reverse the conviction, vacate the sentence, and remand to the district court.Id. at *5.
Of Note: As has been noted by many, the Maloney en banc argument is one of the remarkable arguments heard in the Ninth. It has too many bon mots to fully recount here. A staid account of the exchange can be found here. A less deferential summary can be found here
    The single best line? When AUSA Castetter complains to the Court that he didn’t know he’d be arguing prosecutorial misconduct, Judge McKeown dryly observes: “Not great to be sandbagged is what you’re saying.” See video here at 1:01:18     
How to Use: Buried among the barbs is law of import. Judge Gilman’s dissent in the original Maloney case beautifully describes out what is off-limits in a rebuttal argument. Maloney, 699 F.3d at 1151-52 (Gilman, J. dissenting). Combine his dissent, with Judge Wardlaw’s Maloney order, when sandbagged on rebuttal.
For Further Reading: A San Diego AUSA steps over the line during closing argument in a drug case, and Judge Pregerson – one of the panel’s members – calls the government out on the error. 
   Maloney? Yes – but it is also Sanchez, a case with the same facts – and decided just three years ago. 
    Déjà vu, all over again. See Sanchez blog entry here.

Image of Maloney family crest from

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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