Sunday, August 24, 2014

Case o' The Week: Can you Hear Me Now? - Gadson and Cop "Lay Witness" Testimony under FRE 701

  “This case illustrates the pitfalls of a regime in which officers are permitted to testify as lay witnesses on the basis of information derived from the investigation as a whole, not all of which is before the jury, using specialized equipment and methodologies not available to the jury.” United States v. Gadson, 2014 WL 4067203, *31 (9th Cir. Aug. 19, 2014) (Berzon, J., dissenting), decision available here

  Judge Berzon is right: a case ripe for en banc review.

Players: Decision by Judge Ikuta, joined by Chief Judge Kozinski. Joined in part by Judge Berzon, who dissented in part. 

Facts: Gadson and Wilson were convicted after trial of a conspiracy to distribute cocaine, and firearm offenses. Id. at *1. They were arrested after agents investigated a drug conspiracy in Fairbanks. Id. A search of a hub house revealed drugs, guns and money. Id. at *2. Gadson was later surveilled and tied in with the main conspiracy: a search of Gadson’s house revealed a ballistic vest and lots of cash. Id. at *2. Wilson, arrested as part of the conspiracy, talked to a cousin on jail phones, complained about snitches, and beat a suspected CI in the jail. Id. at *3. At trial, the content of the tapes of the jail calls were interpreted and summarized by a cop “familiar with the prison telephone system.” Id. at *10. There was no defense objection at trial. 

Issue(s): “Wilson asserts that the district court erred in allowing Officer Thompson to testify concerning the content of the telephone calls . . .  According the Wilson, Officer Thompson’s testimony was inadmissible under [FRE 701] because Officer Thompson was not a percipient witness to the conversations, his testimony was based on the investigation as a whole, [and] his interpretation of vague testimony usurped the jury’s role as trier of fact . . . .” Id. at *10.

Held: “Because we rejected this precise argument [regarding FRE 701 and percipient witnesses] in Kevin Freeman, 498 F.3d at 904-05, the district court did not plainly err in not striking Officer Thompson’s testimony on this ground.”  

Of Note: In a compelling dissent, Judge Berzon waves the en banc flag while dissecting the shortcomings of the Ninth’s decision in Freeman. Id. at *27 (Berzon, J., dissenting). You’ll recall the government dodged the reversal bullet on the use of an “expert” to interpret coded calls, because it was harmless error review. See blog on the 2007 Freeman case here.  
  Freeman, observes Judge Freeman, runs afoul of three other circuits that have “severely restricted the ability of officers to testify on the basis of information not before the jury.” Id. at *29 (discussing Sixth, D.C., and Second Circuit decisions). As a result, the Ninth’s case law has “sanctioned a major breakdown in the limits properly placed on lay opinion testimony.” Id. “Kevin Freeman allows the jury’s critical fact-finding role to be usurped by law enforcement testimony based on evidence not presented at trial. As other circuits have held, this procedure has no basis in the Federal Rules of Evidence, undermines trial by jury, and cannot be allowed.” Id. at *34. 

 Judge Berzon correctly argues that “Kevin Freeman should be revisited by an en banc court, perhaps in this case.” Id. at *27. Knock wood her Ninth colleagues agree. 

How to Use: If you’re trying to get in the helpful statements of a witness who has now taken the Fifth, read the disappointing analysis of the decision at *4-*6. Judge Ikuta rejects Gadson’s attempts to admit his brother’s inculpatory statements (when his brother later took the Fifth). Id. The case is a frustrating limitation on the due process right to present a defense by presenting (self-inculpatory) hearsay from a witness who has invoked.                                                

For Further Reading: Cops “interpreting” recorded calls for the jury as lay witnesses under FRE 701: a big problem, and a big evidentiary dispute. For a very interesting summary of the deep Circuit split on this issue, see Sixth Circuit Joins Five Other Circuits in Limiting Agent Lay Testimony Interpreting Recorded Conversations, available here.  
  This is a fuzzy corner of evidence (with rules developed in the context of harmless error litigation). This abuse of "cop lay witness" testimony under FRE 701 has important ramifications: the Ninth’s should heed Judge Berzon's call to revisit Kevin Freeman en banc in the context of Gadson.

Image of inmates call on jail phones from the excellent article “Stupid and Unjust: The Highway Robbery of Prison Phone Rates, at  .

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


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Sunday, August 17, 2014

Case o' The Week: Do The Right Thing - Mageno, Waiver, and Prosecutorial Misstatements During Closing Argument

 In Maloney, the government acknowledged error – but only during an en banc argument, and only when pinned down after a truly excruciating exchange with the Court.
   Far better, it appears, for the government to Do The Right Thing and flag error when it sees it. United States v. Mageno, 2014 WL 3893792 (9th Cir. Aug. 11, 2014), decision available here.

Players: Decision by Judge Berzon, joined by Judge Fisher. Dissent by Judge Wallace.

Hon. Marsha Berzon
Facts: Nancy Mageno’s godson dealt drugs, and Mageno translated for him. Id. at *1. A DEA agent heard her on a half-dozen calls, of suspicious nature – but not expressly mentioning meth. Id. at *1-*2. She testified at trial that she did not know her godson dealt drugs, and her godson testified on her behalf. Id. at *3. Over defense objection, the government was limited to one specific question of the godson regarding his prior deportation: he was asked if he was deported for trafficking meth. Id. at *4. From that sole question, the government argued (repeatedly) at closing that Nancy Mageno knew her godson had been previously deported for meth. Id. at *3-*4. No facts in evidence supported that argument. The defense did not object at trial or on appeal after Mageno was convicted. Id. at *4. The first flag was when the government raised this error in its appellate briefing. Id.

Issue(s): “[T]he government raises, as separate error, the prosecutors’ repeated misstatements during closing argument that [the godson] had testified to [the godson’s] deportation for dealing drugs. Mageno did not object to the government’s misstatement of [her godson’s] testimony at trial, did not raise this argument in her opening brief, and did not adopt it as a ground for reversal until oral argument. Should we consider the government’s error under these circumstances?” Id. at *4.

Held: “We conclude that we should.” Id.

Of Note: The ultimate holding – that the prosecutor’s arguments rose to plain error – is great. What is particularly interesting, however, is Judge Berzon’s thoughtful discussion of waiver. Over Judge Wallace’s dissent, Judge Berzon carefully works through the practical impact, and the historical background, of Rule 52. Id. at *5-*7. Waiver is an important appellate principle, and Mageno’s analysis is worth a careful defense read (particularly the Court’s emphasis on the nature of this criminal case, and the fact that a government representative erred). Id. at *7.

How to Use: To get to reversal, Judge Berzon must navigate the treacherous shoals of Olano plain error. She does so admirably, and the result is a very useful discussion regarding a prosecutor’s misstatements at closing argument. Id. at *7-*12. Of particular interest is the rejection of the general cautionary jury instructions as a “cure-all.” Id. at *9. Those instructions were never expressly tied to the misstatements, so did not vitiate the error. Id. Judge Berzon also rejects the government’s attempt to salvage the conviction by arguing the prosecutor did not intentionally misstate the evidence. Id. at *11. The prosecutor’s statements may not have been intentional misconduct, but they were “exceedingly reckless.” That, Judge Berzon explains, is enough. Id. at *12. Judge Berzon rightly ends the decision by commending the government for “bringing the missteps in this case to our attention,” but because “the government also created the problem” concludes the Court must “reverse Mageno’s conviction so that she may have an untainted shot at maintaining her innocence without the prosecution’s damaging misstatements.” Id. at *12.
For Further Reading: Seven years ago, the formidable Judge Betty Fletcher wrote a beautiful dissent attacking the use of acquitted conduct as relevant conduct at sentencing – using the Sixth Amendment as the foundation of her argument. See blog on Mercado here. 
  Is the Sentencing Commission finally coming around to Judge Fletcher’s view? In its official list of priorities, the Commission promises a multi-year effort to “simplify the operation of the guidelines,” including the examination of the “use of acquitted conduct in applying the guidelines.” See Notice here.  
   A spark of interest, worth fanning into a flame over the upcoming year. 

Image of "Do the Right Thing" from

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


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Wednesday, August 13, 2014

United States v. Orozco, No. 13-30199 (Goodwin with McKeown and Watford). 

The Ninth Circuit affirms a marijuana manufacturing charge and use of a weapon in a drug trafficking offense.  The court held that a brief mention of the defendant's right to consular access during the testimony of officers who were explaining how the Miranda warnings were read did not require a mistrial.  The mention was fleeting and the testimony conveyed only that the defendant was a citizen of another country, not necessarily that he was present illegally in the United States (a crime for which he was not on trial).  Nor was the district court required to give a curative instruction, because that would have needlessly emphasized this testimony.  The court also held that the district court has discretion not to allow the defendant to testify at trial once the evidence has closed.  Although a defendant generally does have a constitutional right to testify on his own behalf, he may not sit in silence as the government's case unfolds, listen to the prosecutor's closing argument, and only then decide that he wants to take the stand.  Because the request came so late in the trial, the Ninth Circuit upheld the trial judge's decision not to reopen the evidence.  The defendant never explained what his proposed testimony would contain or why he waited so long to decide to testify.

Stanley v. Chappell, No. 13-15987 (Fletcher with Tallman and Bybee). 
In this capital habeas case, the Ninth Circuit held that there is no interlocutory appeal under the collateral-order doctrine from a stay and abeyance order under Rhines v. Weber, 544 U.S. 269 (2005).  And in this case, because it was unclear whether the petitioner was required to exhaust his claims relating to his competency to stand trial, the court declined to construe the appeal as a petition for writ of mandamus.