Monday, June 19, 2017

Case o' The Week: Catch a Tigar by the Tale - Sixth Amendment Structural Error and Limits on Defense Closing Arguments

  There are many rights that can be stomped upon, with convictions
salvaged by that damnable “harmless error.”

  And there are some, that cannot.  
United States v. Brown, 2017 WL 2509230 (9th Cir. June 12, 2017), decision available here.

Players: Important decision by N.D. Cal. District Judge Jon S. Tigar, joined by Judge Paez. 
 "Vigorous" dissenting opinion by Judge Bybee. Id. at *5.

Facts: Daniel Brown was a member of a closed online bulletin board where members shared child porn. Id. at *1. He was charged under 18 USC § 2251(d)(1), which prohibits knowingly advertising or giving notice of the availability of child porn. Id. 
  Before closing arguments, the government moved the court to prohibit the defense from arguing that this particular closed board did not constitute “advertising” or “giving notice.” Id. at *2. Over defense objection, the district court agreed and prohibited that defense argument. Id. Brown was convicted and sentenced to fifteen years. Id. at *1.

Issue(s): “Brown challenges his conviction on the ground that the district court violated his Sixth Amendment right to present his defense to the jury when it precluded him from arguing the government had not met its burden to show that the . . . board involved a “notice” or an “advertisement,” given the closed nature of the bulletin board.” Id.  

Held:By refusing to allow Brown to present his defense in closing argument based on the closed nature of the . . . bulletin board, the district court “violated [Brown's] fundamental right to assistance of counsel and right to present a defense, and it relieved the prosecution of its burden to prove its case beyond a reasonable doubt. . . .  A deficient closing argument lessens the Government’s burden of persuading the jury, and causes the breakdown of our adversarial system . . . . 
  Since preventing a defendant from arguing a legitimate defense theory constitutes structural error, we must reverse Brown's conviction accordingly.” Id. at *5 (internal quotations and citations omitted).

Of Note: What do the majority jurists, Circuit Judge Paez and District Judge Tigar, have in common? 
  Many decades of trial court experience. 
Hon. District Judge Jon S. Tigar
  Both men served on California county courts for years, and both jurists have served as federal district court judges. By contrast, dissenting Judge Bybee’s first judicial post was to the Ninth. 
  It is admittedly too simplistic to attribute the split in votes solely to the jurists’ courtroom experience. Nonetheless, the wisdom of the trenches does flavor the opinion. See, e.g., id. at *4 & n.5 (explaining the “simple” process of permitting a defense factual argument to the jury, then denying a post-conviction Rule 29 against defense challenge. “That is exactly what criminal trial judges have always done.”) 
  Finally, as a practical matter, it won’t exactly be easy for us to argue the factual technicalities of “advertising” and “notice” to a jury horrified by the child porn images that they’ve just viewed in trial. There’s a good chance that courtroom reality occurred to the veteran trial judges.

How to Use: “Structural error:” an increasingly rare, and ever sweet, phrase. How strong was the AUSA’s case in this prosecution? Who cares? It just doesn’t matter -- when counsel is prevented from presenting a legitimate defense in closing argument, the conviction is reversed – period, full stop. Id. at *5. 
  Great stuff for an appeal, but potent medicine for the district court, too. When an AUSA presumes to constrict the scope of your closing argument, remind the Worthy Opposition and the District Court that limits on this core Sixth Amendment right mean a Ninth-mandated “Do Over” should the jury convict.
For Further Reading: The Supreme Court is thinking about Structural Error (rarely good news). Weaver v. Massachusetts involves a defense counsel who whiffed on objecting to a closed courtroom during trial.
  (NB: Closed courtroom + timely defense objection = structural error reversal).
   Circuits are split on whether the defense must first show Strickland ineffectiveness before earning a structural error reversal. For an interesting piece on this intriguing conundrum, see “Supreme Court to Decide if One Structural Error Cancels Out Another, available here.

Image of “Don’t Tread on Me” flag from

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


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