[*Ed. note -- I filed an amicus brief in support of en banc rehearing after the three-judge panel opinion came out against the petitioner in the first summarized case.]

1.  Frost v. Gilbert, No. 11-35114 (en banc) (Kozinski with Thomas, Reinhardt, Wardlaw, Paez, and Nguyen; dissent by Tallman, joined by Rawlinson, Bybee, Callahan, and M. Smith) --- On remand from the Supreme Court, see  135 S. Ct. 429 (2014) (per curiam), the en banc panel unanimously affirmed the denial of habeas relief to a Washington state prisoner, holding that the trial judge's limitation on the scope of closing argument was harmless.  The panel also unanimously affirmed the district court's denial of the petitioner's Bradyand Napue claims, although a bare majority of the panel found that the prosecution's withholding of a cooperating witness's plea agreements constituted cause to excuse the procedural default of this claim.

The petitioner was convicted of a "string of armed robberies" that took place in 2003.  At trial, he argued alternative theories of defense -- that the prosecution hadn't met its burden, and that he acted under duress.  The trial judge prevented him from arguing both of these theories in closing argument; he chose the duress theory, which the jury didn't believe.  The Washington Supreme Court held that limiting the scope of closing argument was error, but that the error was harmless.  A three-judge panel of the Ninth Circuit agreed, but then the case went en banc, and a 6-5 en banc panel held that the error was structural and thus granted relief.  The Supreme Court reversed in a per curiam opinion, leaving the Ninth Circuit to consider the harmlessness question.  In light of the "overwhelming evidence" that the petitioner had committed the charged offenses, "any argument that the prosecution failed to meet its burden of proof would have fallen on deaf ears."  Thus the en banc panel unanimously affirmed the denial of relief on the claim involving the restricted scope of closing argument. 

So much for the first two paragraphs of the opinion.

The remainder of the opinion -- and the bulk of Judge Tallman's dissent -- concerns the petitioner's claims under Brady v. Maryland, 373 U.S. 83 (1963), and Napue v. Illinois, 360 U.S. 264 (1959).  These claims related to the testimony of a key prosecution witness, who had testified against the petitioner pursuant to plea agreements in two cases of his own.  The prosecution presented inaccurate testimony to the jury about the scope of these agreements, particularly failing to disclose that the witness had settled more than one pending case against him.  Without knowledge of these agreements, the petitioner failed to raise his Brady and Napue challenges both on direct appeal and in his first round of state habeas proceedings.

After his direct appeal was over, the petitioner asked the county attorney for public records about the witness and his use as a police informant.  He was told that there were about 1000 pages of responsive material, and it would cost $195 for him to obtain it.  He responded that he didn't want the entire file, just "any documents that could show any special treatment" that the witness received from the King County Attorney.  The petitioner was then told that there was no such responsive material.  He responded that he knew the witness had given statements in a particular case, and was given documents in the one case that was mentioned during his trial.  It was only after the Federal Public Defender in Seattle was appointed to his case that he received the documents.  He filed a second round of state habeas proceedings, which were dismissed as untimely, and then the federal court held the Brady and Napue claims procedurally defaulted pursuant to an adequate and independent state procedural rule.

Because a meritorious Brady claim can essentially be used to excuse its own procedural default, the en banc panel then turned to the merits of the claim.  Six judges on the en banc panel found cause to excuse the procedural default stemming from the prosecution's withholding of the necessary documents.  The fact that the petitioner was investigating his case on his own helped -- he did not have access to the public court file (unlike his appointed federal counsel), and could not be faulted for limiting the scope of his public records search when it proved too expensive for an incarcerated prisoner.  The prosecutors assigned to the witness's case should have turned over the documents to the prosecutor in the petitioner's case, who should then have turned the documents over to the petitioner.  Thus the petitioner's failure to file his Brady and Napue claims in a timely manner under state law was not his fault.

On the question of prejudice, the en banc panel unanimously found none.  The withheld information wouldn't have changed the picture of the witness's testimony before the jury, because they already knew that he had struck some kind of deal with the prosecution.

Then Judge Kozinski called out by name the state actors involved in suppressing the information relating to the witness's plea deals.  (Judge Nguyen did not join this part of the opinion, so it speaks only for a five-judge plurality.) 

Judge Tallman disagreed with the decision to examine the Brady and Napue claims at all.  Despite the fact that the petitioner's federal counsel doggedly pressed the claims at each stage of the appeal, Judge Tallman complained that the petitioner did not petition for certiorari on the issues and that the Supreme Court had not specifically remanded them for further consideration.  He also strongly disagreed with the decision to name the state actors involved.

Kudos to former Seattle AFPD Erik Levin for fighting the good fight.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/03/21/11-35114.pdf

2.  United States v. Nickle, Nos. 14-30204, 14-30229 (Kozinski with Fletcher and Fisher) --- The Ninth Circuit vacated a conviction on drug charges where the district judge refused to accept a guilty plea because the defendant did not volunteer enough information about his criminal activity, over and above what was necessary to establish a factual basis for the plea, to the district judge's satisfaction.  The court also held that a defendant must be permitted to cross-examine cooperating witnesses about the benefits they received for their cooperation.  Finally, the court held that a judge may not direct that forfeited monies be used to fund an indigent defendant's representation under the Criminal Justice Act.  In light of all these errors, the court directed that the case be reassigned to a different district judge on remand.

The defendant was charged with drug possession and other more serious crimes.  The government offered him a plea bargain -- in exchange for his guilty plea, the government would drop the more severe charges and make favorable sentencing recommendations.  But the district judge refused to accept the defendant's guilty plea because the defendant did not "admit enough information for the judge to make a reasonable decision about his drug activity."  So the defendant went to trial, where the judge prevented him from cross-examining cooperating witnesses about the benefits they received for their cooperation.

The Ninth Circuit held that the judge had no right to refuse to accept the defendant's guilty plea under these circumstances.  The defendant did what he was required to do -- admitted to the elements of the crime.  "There is no requirement in Rule 11(b) that the defendant himself give an in-depth account of his crime or confirm that everything in the government's offer of proof is untrue."  The judge is only allowed to reject the guilty plea if he had doubts about whether the defendant understood the charges or was disputing his guilt -- and then he must explain why he is rejecting the plea.  And the judge's refusal to accept the guilty plea made the defendant worse off in this case, because he went to trial and was convicted on more serious charges.

The Ninth Circuit also held that the terms of the cooperating witnesses' deals with the government were relevant, and the district judge erred by concluding that because the government had not yet bestowed those benefits (here, by filing a motion under Rule 35 for a sentence reduction), the terms of the deals weren't relevant.  The judge further erred by failing to identify a proper basis under Rule 403 for excluding this relevant evidence.  The Ninth Circuit specifically called out the district judge here for not heeding its opinion in United States v. Larson, 495 F.3d 1094 (9th Cir. 2007) (en banc), chastizing the district judge for threatening defense counsel with sanctions for pursuing a line of inquiry that the Ninth Circuit had previously held was proper. 

These two errors, along with the district judge's order directing that forfeited monies go to pay for the defense, led the Ninth Circuit to direct that the case be reassigned.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/03/21/14-30204.pdf

* Keith Hilzendeger, AFPD, District of Arizona, writing for Jon M. Sands who is out of district this week.