Case o' The Week: No Shades of Grey, for Search Astray - Grey, Fourth Amendment, and Motives for Administrative Inspection Searches

  Black & Whites’ motives, not Grey . . . .

  United States v. Grey, 2020 WL 2745322 (9th Cir. May 27, 2020), decision available here.

Players: Decision by Judge Tashima, joined by visiting DJ Harpool. Dissent by Judge Bybee.

  Admirable win for AFPD Sonam Henderson, C.D. Cal. FPD.  

Facts: Grey lived in a rental house in Lancaster, California. He obscured his home with tarps, erected too-high fences, and was suspected of having an unlawful car-repair business. Id. at *1-*3. Code-enforcement inspectors looked into Grey, and law enforcement began a criminal investigation. Id. at *3.

  Deputy sheriffs learned Grey had felony priors, that neighbors alleged he had guns and meth, and had fired guns into the air. Id. Id. at *4. The deputies nonetheless conceded that they did not have probable cause for a search. Id. at *4.

  Code enforcement then obtained an administrative inspection warrant: nine deputy sheriffs tagged along when it was executed. Id. The deputies arrested Grey outside his home, then poked around the house for twenty minutes. They found drugs and guns. Id. (See picture of evidence above).

  Grey was charged in federal court, the district court suppressed, and the government took an interlocutory appeal. Id. at *7-*8.

Issue(s): “In the case before us, the district court applied Alexander [v. City & County of San Francisco, 29 F.3d 1355 (9th Cir. 1994)], holding that [the Sheriff’s] execution of the warrant was unreasonable under the Fourth Amendment because [the Sheriff’s] primary purpose in executing the warrant was to gather evidence in support of its criminal investigation rather than to assist the inspectors. . . . On appeal, the government argues that the district court should have applied [United States v. Orozco, 858 F.3d 1204 (9th Cir. 2017)], instead, and that [the Sheriff’s] actions were lawful under Orozco because [the Sheriff’s] impermissible motive was not the but-for cause of the search, because the sweep of Grey's dwelling would have occurred regardless of the deputies' motivation to uncover criminal evidence.” Id. at *10 (citations and internal quotations omitted).

Held: “[W]e conclude that the district court properly applied Alexander's primary purpose test, rather than Orozco, to the [Sheriff’s] conduct at issue in this case. Where, as here, law enforcement officers are called upon to assist in the execution of an administrative warrant providing for the inspection of a private residence, the execution of the warrant is consistent with the Fourth Amendment only so long as the officers’ primary purpose in executing the warrant is to assist in the inspection. If the person challenging the execution of the warrant shows that the officers’ primary purpose was to gather evidence in support of an ongoing criminal investigation, the conduct does not satisfy the Fourth Amendment.” Id. at *13.

Of Note: Alexander focuses on the “primary purpose” of the cops involved in the execution of an administrative warrant for the inspection of a private residence. If that primary purpose was to make a criminal arrest, instead of aiding inspectors, the search violates the Fourth. Id. at *9. Orozco requires the defendant to show that the stop would not have occurred in the absence of the impermissible reason. Id.

  What’s the difference?

  Well, actually, “there appears to be little practical difference between Alexander’s primary purpose test and the Orozco test,” explains Judge Tashima. Id. at *10.

How to Use: Administrative searches, and “special needs” cases, are two Fourth Amendment exceptions where officers’ subjective intent matters. Judge Tashima provides a valuable overview of this line, and reconciles the approaches. Id. at *9. 

  Grey is a must-read for administrative search cases (including the oft-abused “inventory” search).

                                               

For Further Reading: Santa Rita Jail became the target of yet another class action suit, last week.

 NorCal ACLU filed in Alameda County Superior Court, demanding the release of inmates vulnerable to COVID-19. See press release here. 

Image of evidence seized in Grey case, from http://theavtimes.com/2018/05/09/guns-drugs-100k-seized-in-lancaster-raid/

Image of Santa Rita Jail from https://www.mercurynews.com/2020/03/18/east-bay-jail-looks-to-reduce-jail-population-by-keeping-only-violent-criminals/

Steven Kalar, Federal Public Defender, N.D. Cal. Website available at www.ndcalfpd.org

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Smith v. Baker, No. 14-99003 (5-21-20)(Christen w/Murguia; N. Smith concurring).  This is an affirmance of a capital petition dismissal. The 9^th finds ineffective mitigation and an error in a jury instruction, but concludes that both were harmless. Concurring, Smith would find no sentencing IAC.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/05/21/14-99003.pdf

Benson v. Chappell, No. 13-99004 (5-1-20)(Callahan w/Bea; partial concurrence and dissent by Murguia). The 9^th affirmed denial of petitioner’s capital habeas. Applying AEDPA deference, the 9^th found the statements were admissible and counsel was not IAC.  Murguia, dissenting, would find IAC regarding the penalty phase.  Evidence of petitioner’s grotesque physical and sexual abuse  was readily available but was never discovered and obviously not introduced to the jury. This failure is fundamentally unreasonable.

Editorial note: The horrific physical, sexual, and mental abuse is some of the worse I have ever read. See pages 77-81.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/05/01/13-99004.pdf

US v. Yang, No. 18-10341 (5-4-20)(Piersol w/Lee; Bea concurs). This is an interesting 4th Amendment issue involving rental cars and data searches. The 9th affirms the denial of defendant’s suppression motion challenging how he was found by Postal Inspectors. When it comes to stolen mail, neither rain, nor snow, nor rental cars driven past the rental period stops an inspector.

A person driving a Yukon was on surveillance video “fishing” for mail. The person could not be identified, but the license plate could. The postal inspector used Vigilant Solutions to run the license plate. This company has a private database of billions of license plates, captured through cameras mounted on tow trucks, repo company vehicles, and law enforcement vehicles. The cameras capture the image of the license plates through public everyday contact.  Law enforcement has access through subscription to the database.

The postal inspector used a search to discover whose car it was, and where he might be. But the photo that captured the license plate was taken six days after the rented Yukon was supposed to be returned.

The 9th majority sidestepped Carpenter by focusing on standing. The opinion acknowledges that sometimes, if a renter or lessee overstays a term (as in a hotel), or fails to return a car in time, they may still expect privacy because of “forgiveness” or grace periods, or customs. Here, though, the defendant presented no evidence that the rental company had such a leeway or grace period. While the company’s rental agreement did say that an over extension would cause additional charges, it required notification. The company tried to digitally disable the vehicle after it was not returned but the disabling device had been disabled by a third party. Thus, because the rental car was beyond its term, the defendant had no expectation of privacy and, most important, no standing.  It is a narrow holding.

Bea, concurring, finds that the defendant has standing. He concurs in the judgment because there was no expectation of privacy. The photo was snapped on the open road; it was not in a private residence; it did not track the physical movements. It was a snapshot.

Hard fought issue, the core of which is preserved for another day, by Cristen Thayer, AFPD, Nevada (Las Vegas).

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/05/04/18-10341.pdf

Mitchell v. US, No. 18-17031 (4-30-20)(Ikuta w/ concurrence by Christen & concurrence by Hurwitz). Editorial note: FPD Az was trial counsel on this capital matter.

How can one learn of juror racial bias under Pena-Rodriguez v. Colorado, 137 S. Ct 855 (2017) unless one can approach jurors? “Not our problem,” opines the 9th, in affirming the denial of petitioner’s request to interview jurors. The 9th  acknowledges that while Pena-Rodriguez creates a new exception to Fed R. Evid 606(b), allowing jurors to testify as to their deliberations when it comes to racial bias, the case did not change the law of investigating or interviewing jurors absent “extraordinary circumstances.” No such extraordinary circumstances were presented here.

This was not for want of trying by counsel. This case is a capital conviction for carjacking resulting in murder on the Navajo Reservation. Counsel raised juror issues related to representation of Native Americans on the jury and other issues. Habeas counsel was prevented from interviewing jurors due to the local rule that barred interviewing jurors. Jurors could approach counsel; but not counsel approaching jurors.

The panel did allow this issue to be raised under Rule 60(b). It was procedural as opposed to a second successive claim.  A small victory there.

Christen concurred. She acknowledged the jurisdiction for the offense, but raises concerns that this was the first death case for an Indian upon Indian crime, not under 18 USC 1153 (Major Crimes), but by jurisdiction through carjacking resulting in death.

Hurwitz concurred. He wrote to urge the current Administration to take a “fresh look” at the “wisdom” of imposing death on a crime committed by a Navajo on Navajo, entirely within the Navajo nation, when the Navajo nation opposed seeking the death penalty, the members of the victims’ family opposed the death penalty, and the US Attorney at the time of the offense opposed seeking the death penalty. Seeking such a penalty betrays the respect the federal government must afford tribal sovereignty.

Some issues to consider: (1) Counsel should seek to change such local rules that bar counsel approaching jurors to afford a “bias exception.” (2) Counsel should object to the juror instruction at the discharge of the jury, stating that counsel cannot approach them, but they can approach counsel. Counsel should ask that jurors be specifically instructed to approach the Court or counsel as to any bias in deliberations.  (3) In the alternative, counsel can ask about bias. (4) Can Pena-Rodriguez be used as a separate instruction prior to deliberations as an admonition against prejudice and a duty to report such statements. (5) Can/should counsel specifically argue Pena-Rodriguez to the jury against bias. (6) Can Pena-Rodriguez be used as a way for expanded jury voir dire, or even counsel voir dire, because the court will tell the jurors they can approach counsel, at the end of the case.

Deputy FPDs Jonathan Aminoff and Celeste Bacchi, FPD Cal Central (Los Angeles) fought hard on this issue and appeal.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/04/30/18-17031.pdf

US v. Ray, No. 18-50115 and Bacon, No. 18-50120 (4-28-20)(Per Curiam; concurrence by Wardlaw). Insanity. Daubert. Expert opinion. Relevancy.  Defendant’s right to a defense. Prison stabbing.  This case has all those things. The takeaway is that (1) an expert in an insanity case does not have to state an ultimate opinion as to whether a defendant is legally insane because the jury decides that; but (2) the opinion still has to meet the Daubert requirements of being founded on science and is reliable; and (3) because the court used the wrong legal standard – abuse of discretion – in assessing the ultimate medical opinion (insanity) rather than whether it was reliable and relevant, a new trial is required rather than a limited remand to see if the expert’s opinion meets the reliability and Daubert gatekeeper standards.

As alluded to above, this was a prison stabbing. The co-defendant (Bacon) wanted to mount an insanity defense. His expert opined about the defendant’s myriad of severe mental health issues, and that on the day of the incident it was reasonable that he was suffering from a dissociative state and lacked an ability to differentiate his actions. The prosecution moved to preclude because the conclusion of a “dissociative” state was unsupported in the literature. The court precluded because the expert failed to state an ultimate opinion, and may not be relevant.

The 9th vacated and remanded, grudgingly, because of the wrong legal standard. The 9th held that the opinion was relevant and that the expert did not have to state an ultimate opinion. However -- nudge nudge – the district court still has a Daubert gatekeeper role and should determine whether the opinion can be deemed reliable, considering all the factors of Daubert and FRE 702.

The concurrence wishes the panel did not have to grant a new trial, but instead issue a limited remand to the district court to see, under the correct standard, whether Daubert was satisfied.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/04/28/18-50115.pdf

Case o' The Week: What COVID Crisis? - Dade and Bail Pending Appeal, in COVID-19 Era

  The Lompoc-elephant in the room? 

  Merits no mention, in troubling Ninth order.

United States v. Dade, 2020 WL 2570354 (9th Cir. May 21, 2020) (Ord.), decision available here.

Players: Order by Judge Collins and visiting “Judge for the United States Court of International Trade” Choe-Groves. 

  Courageous and compelling dissent by Judge Berzon.

  Righteous and hard-fought motion for bail pending appeal by AFDs Melissa Winberg and Miles Pope, Federal Defender Services of Idaho. (Note: the Order erroneously lists a different Defender office).

Facts: Dade, an elderly man with respiratory problems, has served 18 of his 28-year federal sentence – and is now incarcerated in Lompoc. Id. at *3 (Berzon, J., dissenting).

  Dade appealed a denial of his § 2255 federal habeas, and moved for release pending appeal. Id.

Issue(s): “[ ] Dade . . . moves for release on bail pending his appeal of the district court’s denial of his motion to vacate his sentence under 28 U.S.C. § 2255.” Id. at *1. “[I]n addition to showing a likelihood of success on the merits, Dade must make a further showing of exceptional circumstances that go beyond what would be required to justify his release if this were a direct appeal rather than a § 2255 collateral attack.” Id. at *2.

Held: “We express no view of the merits of Dade’s appeal, which has not yet been argued. Even assuming arguendo that Dade has established a likelihood of success on appeal, he has not made the further showing required to warrant his release pending appeal. We therefore deny the motion.” Id. at *1. “Although the Bail Reform Act does not apply on collateral review, . . . it cannot be the case that a prisoner whose detention would be required under that Act pending direct appeal can obtain release pending appeal on collateral review. We agree with the Seventh Circuit that, because the standards applicable to collateral review are stricter than on direct appeal, a federal defendant who would not be entitled to bail pending direct appeal under the terms of § 3143(b) is, for that reason alone, not entitled to bail pending resolution of his or her § 2255 proceedings.” Id. at *2 (citations omitted). 

  “Because Dade’s request for release would fail under § 3143(b), [the Bail Reform Act],if this were a direct appeal, he can fare no better on an appeal in a collateral challenge under § 2255, where he must satisfy a more demanding standard. Accordingly, Dade’s motion for release on bail pending appeal under Rule 23(b) is DENIED.” Id. at *3.

Of Note: Nearly a thousand Lompoc inmates are COVID-19 positive – the federal prison is such a hot spot that it jeopardizes the re-opening of an entire county. See article here. 

   Remarkably, however, Dade’s incarceration at Lompoc merits no mention in the Order. 

 

The Hon. Judge Marsha Berzon

Fortunately, Judge Berzon makes clear what is really at stake, in a pointed dissent that lays bare the COVID-19 dangers faced by this elderly inmate. See id. at *3 (Berzon, J., dissenting) (“[The government] asserts that the BOP has policies in place to ensure the safety of inmates, but those policies have been appallingly ineffective in FCI Lompoc where Dade is incarcerated.”) Beyond its COVID-19 shortcomings, the Order also inexplicably requires an Appellant seeking release to also satisfy the Bail Reform Act, in addition to FRAP 23. As Judge Berzon explains, this requirement “plainly violates this circuit’s precedent.” Id. This brief Order is deeply troubling on many fronts -- will the Ninth take a second look?     

How to Use: The majority complains that Dade did not first seek release in the district court, and intimates that missing step affects the analysis of the “equitable principles that govern” these “discretionary requests.” Id. at *1 & n.2. 

  If seeking release in the Ninth under FRAP 23, make sure to check that “district court motion” box first.

                                               

For Further Reading: The BOP is resuming moves of inmates out of local detention facilities and into federal prisons. See New York Times article here. 

   Here in NorCal, our clients may finally escape the Santa Rita frying pan – but god help them as they’re now shoved into the BOP fire. See USA Today Op Ed here. 

Image of “Elephant in the Room” from https://blog.ncqa.org/the-election-and-what-it-means-for-ncqa-and-health-care-policy/out-of-frying-pan-into-the-fire/

Image of the Hon. Judge Marsha Berzon from https://www.law.com/therecorder/almID/1202733565420/

Image of “Out of the Frying Pan and Into the Fire” from https://www.forbes.com/sites/rodgerdeanduncan/2014/10/14/is-there-an-elephant-in-the-room-name-it-and-tame-it/#7264aaf334dd

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

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Case o' The Week: Needing Neo in the Ninth - Costanzo, bitcoin, and interstate commerce

  Morpheus versus the Agents, again.

  (Spoiler alert: not a happy ending, this time).

United States v. Costanzo, 956 F.3d 1088 (9th Cir. Apr. 17, 2020), decision available here.

Players: Decision by Judge Hawkins, joined by Judges Owens and Bennett. Hard-fought appeal by D. Arizona AFPD Dan Kaplan.  

Facts: Costanzo’s (a.k.a. “Morpheus Titania”) enthusiastic bitcoin sales drew the Feds’ attention. Id. at 1089. Over five meetings, undercover agents used cash to purchase over $100k in bitcoin. Id. at 1090. Agents explained the cash came from drug sales. Id. 

  Costanzo was charged with, among other things, money laundering and went to trial. Id. at 1091. At trial, the government presented evidence about the “verification process,” as bitcoin was transferred from Costanzo to the agents. Id. One such verification took place in Germany. Id. 

  The Court denied Costazno’s motion for acquittal, and he was convicted. Id.

Issue(s): “Appellant contends that the transfer did not have the requisite effect on interstate commerce, an element of each of the charged offenses.” Id. at 1089. (footnote omitted). 

  “Costanzo [argues] that the government failed to prove that the transactions affected interstate commerce in any way.” Id. at 1091.

Held: “Because we conclude that the transfer in question, which involved the use of an Internet or cellular network connected Personal Computer Device (PCD) to transfer bitcoin (together with the digital code necessary to unlock the bitcoin) to the digital wallet of another Internet or cellular network connected PCD, had the necessary effect on interstate commerce, we affirm.” Id. (footnote omitted). “Here, the government presented evidence regarding Costanzo's business; his use of global platforms; and the transfer of bitcoin through a digital wallet, which by its nature invokes a wide and international network. Costanzo advertised his business through localbitcoins.com—a website based outside of the United States. He encouraged the undercover agents to download applications from the Apple Store or other similar platforms to facilitate their communications and transactions. He then utilized those applications to engage in encrypted communications with the agents to arrange the transfers. Then, in each transaction, Costanzo and the agent used those applications on their smartphones to transfer bitcoin from one digital wallet to another. Each transaction was complete only after it was verified on the blockchain. Viewing all of this evidence in the light most favorable to the government, we are satisfied that the evidence is sufficient for some trier of fact to find the ‘minimal’ interstate commerce nexus required under § 1956.” Id. at 1092-93.

Of Note: Constanzo’s co-D, Peter Steinmetz, was less blasé about the illegal origins of the cash. Like Constanzo, Steinmetz was charged with money laundering using bitcoin. Transcripts later revealed, however, that Steinmetz refused to sell bitcoin to an agent posing as a Russian heroin buyer. Steinmetz became “a poster child for heavy-handed bitcoin enforcement.” See article here. 

  New currencies: old law-enforcement problems.

How to Use: What is the standard of review, for the sufficiency of evidence for an interstate commerce element? Judge Hawkins uses de novo review, and asked whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 1091-92 (emphasis in original). The government, however, argued that the proper standard of review was, “manifest injustice.” Id. at 1092 & n.3. The panel avoids the issue by explaining the result would be the same under either standard. Id.

  Beware, however, of the government’s more-onerous theory of review for future interstate commerce challenges.

                                   

For Further Reading: The federal Terminal Island and Lompoc facilities are now the subjects of new civil suits, brought by medically-vulnerable inmates facing the COVID-19 pandemic.

For a must-read brace of terrifying Complaints, by Bird Marella and the SoCal ACLU, see here.

Image of Morpheus and Agent Smith from https://scottmanning.com/content/smith-interrogates-morpheus-transcript/

Image of Lompoc from https://www.sfchronicle.com/news/article/574-inmates-test-positive-for-coronavirus-at-15255843.php

Image of Terminal Island from https://www.latimes.com/california/story/2020-04-29/coronavirus-terminal-island-prison-inmates-outbreak

Steven Kalar, Federal Public Defender, N.D. Cal. Website available at www.ndcalfpd.org

Case o' The Week: Carpenter Demur - Yang and Rental Car Standing

  Car that’s late moots plate debate.

United States v. Jay Yang, 2020 WL 2110973 (9th Cir. May 4, 2020), decision available here.

Players: Decision by visiting S. Dakota District Judge Piersol, joined by Judge Lee.

 Concurrence by Judge Bea.

 Hard-fought appeal by D. Nev. AFPD Cristen Thayer, along with an impressive array of amicus counsel from EFF and the ACLU.  

Facts: Yang was seen driving a rented GMC Yukon, and stealing mail. Id. at *1. Postal Inspectors queried a huge license-plate database, called “LEARN.” Id. at *2. The database took shots of the Yukon’s plates after the deadline had passed to return it. Id. The rental car company tried tracking the Yukon when it was overdue, but the GPS unit had been deactivated in the car. Id. at *3. The “LEARN” license data lead the Inspector to a condo unit where the Yukon was discovered: a search warrant followed. Id. A search of the residence revealed stolen mail, “fishing devices” to dig mail out of collection boxes, and a gun. Id. After being charged in federal court, Yang moved to suppress. The district court denied the suppression motion, and Yang took a conditional appeal. Id. at *5.     

Issue(s): “Yang argues that the ALPR technology used by Inspector Steele without a warrant to track and locate Yang at his residence violated his Fourth Amendment right to privacy on the whole of his movements under Carpenter v. United States, ––– U.S. ––––, 138 S.Ct. 2206, 201 L.Ed.2d 507 (2018)—a decision issued by the Supreme Court after Yang’s motion to suppress was denied.” Id. at *2.

Held: “We have jurisdiction under 28 U.S.C. § 1291 and affirm the district court’s decision denying Yang’s motion to suppress. We do not address the potential Fourth Amendment privacy interests that may be implicated by the warrantless use of this ALPR technology because we conclude that Yang does not have a reasonable expectation of privacy in the historical location data of the Yukon under the facts of this case.” Id.

Of Note: Yang is an odd, long opinion. It goes into great depth on the “LEARN” license plate database, describing how the system collects plate hits, the millions of entries that the database maintains, how the database is accessed by law enforcement, and how many hits an average plate generates a year. Id. at *3-*4. The Court then dodges the Carpenter Fourth Amendment issue entirely, effectively holding that Yang had no standing because the Yukon was overdue to the rental company. Id. at *9.

  Judge Bea (correctly) complains in his concurrence that the standing analysis is incorrect for this Carpenter-tracking type claim (particularly for a car that was only 13 hours overdue). Id. at *9 (Bea, J., concurring).

  The majority opinion may be the result of shifting votes, with the long LEARN discussion a legacy of an earlier Carpenter-based decision. Whatever the reason, Yang is ultimately not a decision on the legality of license plate readers: it is a standing decision, focused on rental cars that are kept beyond their return date (and a pretty fact-bound holding, at that).

How to Use: In his concurrence, Judge Bea would have found standing, then held that license-plate harvesting does not implicate Fourth Amendment / Carpenter concerns. Id. In Judge Bea’s view, the (comparatively) few license-plate captures does reveal personal movements to the same degree as the cell phones in Carpenter. Id. at *11. The voracious “LEARN” database of “Vigilant Solutions” cries out for another vigorous Fourth attack – if that happens in your case, reach out to the Yang amici while in the district court, and consider the Bea concurrence when thinking about how to extend Carpenter to license plate databases.

                                               

For Further Reading: Last week we flagged the six hundred Terminal Island inmates that were COVID-19 positive, and warned to “brace for skyrocketing numbers” from Lompoc as tests were administered.

   We didn’t brace hard enough.

   Nearly 850 inmates and staff have tested positive for COVID-19 in Lompoc: 68% of the prison’s population. See CBS Article here; see also LA Times Article here.    

Image of “LEARN” license plate “intelligence platform” from https://www.minerelectronics.com/vigilant-solutions/learn.htm

Image of family members of Lompoc inmate from https://santamariatimes.com/news/local/crime-and-courts/protesters-want-lompoc-federal-prisons-to-reinstate-communications-with-inmates/article_07221939-5ccf-5bf2-89d0-5974a04d61e6.html

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

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Case o' The Week: Expert Win Means Try it Again - Ray and Defense Psych Experts

   Retrial win, to panel’s chagrin.

United States v. Ray, 2020 WL 2029260 (9th Cir. Apr. 28, 2020), decision available here.

Players: Per curiam decision, joined by Judges Watford, Bennett, and visiting District Judge Radkoff.

  (Disgruntled) concurrence by Judge Watford, joined by Jude Bennett and District Judge Radkoff.

Facts: Ray and his co-D, Bacon, were incarcerated at Victorville. Id. at *2. Security cameras recorded Ray and Bacon exchanging a book, Bacon extracting something from it, and then Bacon stabbing an inmate with a shank. Id. 

  The men were charged with federal assault counts. Before trial Bacon gave notice under Fed. R. Crim. Proc. 12.2 of his intent to assert an insanity defense. Id. In support of this defense, Bacon noticed a forensic clinical psychologist. The district court barred the testimony, finding it not relevant. Id. The court then barred Bacon’s insanity defense. Id. at *3. The pair were convicted after a two-day trial. Id. at *2.   

Issue(s): “On appeal Bacon argues that the district court should have allowed his forensic clinical expert psychologist, Dr. Karim, to testify, which would have allowed him to present his insanity defense to the jury.” Id. at *1.

Held: “We hold that the district court abused its discretion in excluding Dr. Karim’s testimony because the testimony was relevant to Bacon’s defense. Because this error was not harmless, and we cannot tell from the record whether the testimony was reliable, we must vacate Bacon’s conviction and remand for a new trial.” Id. at *1 (footnotes omitted).

  “[T]he district court abused its discretion by precluding Dr. Karim’s testimony because he did not opine that Bacon was unable to appreciate the nature and quality of his acts at the time of the assault. This was the wrong legal standard. Instead, the district court should have focused on whether Dr. Karim’s testimony would have assisted the jury ‘in drawing its own conclusion as to a ‘fact in issue,’ —the impact of any serious mental health disease or defect on Bacon’s ability to appreciate the nature and quality of his acts. If otherwise admissible, Dr. Karim’s expert testimony ‘would have been highly probative’ of Bacon’s mental state and ‘unlikely to cause significant confusion with the jury if properly constrained by compliance with the rules of evidence.’ . . . Thus, even if the district court had explained the Rule 403 exclusion, it likely would have abused its discretion. With no explanation, it clearly did so.’ Id. at *4 (citation and quotations omitted).

Of Note: The Ninth remands to the district court to consider the expert again, and for a new trial – regardless of whether or not the district court finds the defense expert admissible. That outcome is a burr under Judge Watford’s saddle, who complains about the Ninth’s “new trial” rule in a concurrence. Id. at *5 (Watford, J., concurring). The origins of this welcome ‘new trial’ rule? The Ninth’s decision in Estate of Barabin, extended to criminal trials in 2014 in United States v. Christian. 

  Academics will continue to debate the circuit split caused by Barabin and Christian – but for us in the trenches, the lesson is that we may get a full-trial ‘do-over’ when the district court guesses wrong and erroneously excludes a defense expert witness. Remind the DJ of this likely outcome when its FRE 702 / 704 analysis is hot and hostile to your defense expert.

How to Use: Ray is an accessible case on the proper analysis for the admissibility of experts. Here, the DJ goofed by rejecting the relevance of the shrink’s ultimate conclusion, instead of the relevance of the psych eval and medical diagnosis. Id. at *3. Read Ray when pitching a defense shrink: it provides a helpful blueprint.

                                               

For Further Reading: The Fed’s Terminal Island incarcerates over 1,000 men. Over 600 inmates are now COVID-19 positive: four have died. See ABC Article here.

  Widespread testing at Lompoc likely to start tomorrow: brace for skyrocketing numbers from that prison as well.

Image of “Psychiatric Expert Witness” from http://psychiatricexpertwitness.org/

Image of Terminal Island and COVID-19 measures from https://abc7.com/inmates-terminal-island-prison-deaths/6141335/

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

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