Case o' The Week: A Snitch in Time? "No," Says Nine - Obagi and Brady / Giglio Remedies

  Gov’t snitch lies? 

The Hon. Judge John Owens

  Case retries.

United States v. Obagi, 2020 WL 4033849 (9th Cir. July 17, 2020), decision available here.

 Players: Decision by Judge Owens, joined by D.J. Molloy. Dissent by Judge Bumatay. Big win for former CD Cal AFPDs Craig Wilke and Davina Chen.  

 Facts: Obagi and his co-D were tried on charges related to mortgage fraud. Id. at *1. The government relied heavily on cooperators. Id. at *2. To bolster its case, the government called witness “Saad,” who testified against the defendants. Saad assured the jury that she had received no consideration from the government. Id. The AUSA “relied heavily” on Saad’s confirming testimony in closing, as a non-compromised and corroborating government witness. Id.

   A different AUSA was watching the closing arguments. He informed the Obagi prosecutor that Saad was actually cooperating, and had received immunity in a separate mortgage investigation. Id. at *3.

   The court discussed options: a mistrial, recalling Saad to be crossed, or an instruction. Id.

   The court decided on a curative jury instruction, and both co-D’s were convicted. Id.  

 Issue(s): Because the details of Saad’s cooperation was Brady evidence, was a curative instruction given after the government’s closing argument a sufficient remedy?

 Held: “Had the information impeaching Saad been disclosed prior to the close of evidence, this presumption and the normal rules concerning curative instructions likely would govern here.” Id. at *4.

  “Given the difficulty the jury faced in reaching a verdict, we cannot say with confidence that the undisclosed impeachment did not affect the jury’s judgment. Nor can we conclude that the district court’s instruction fully cured the prejudice that resulted from the government’s Brady violation.” Id. at *5.

  “Because there is a reasonable likelihood that the undisclosed evidence impeaching Saad could have affected the judgment of the jury, we are compelled to reverse the convictions and remand the case to the district court for further proceedings.” Id.

Of Note: It is unfathomable: how did CD Cal AUSAs not figure out that were calling a (lying) cooperator, and affirmatively assure the jury that she was not a cooperator, when the snitch had in fact been given a no-pros deal in a mortgage fraud case (apparently in the same U.S. Attorney’s office?) This is particularly outrageous in California, where ethical rules require prosecutors to affirmatively hunt down and disclose such information. See Cal. R. Prof. Conduct 3.8, available here. 

   In N.D. Cal, the vast majority of D.J.’s have granted Brady / 3.8 disclosure orders, setting deadlines for disclosure before trial. If such a pretrial order had been in place in Obagi, the government would have been more careful when checking on its own witnesses – and toothier remedies would have been available when this violation came to light. Obagi illustrates yet again why no case should go to trial in California, without a stout Brady / Rule 3.8 disclosure cut-off order in place.

 How to Use: Judge Bumatay’s dissent ably highlights the value of this decision for the defense. See id. at *5 (Bumatay, J. dissenting). He complains that the opinion essentially means de facto reversal anytime there is a Brady disclosure after closing arguments. Id. Judge Bumatay is also irked by the fact that the trial defense counsel declined the district court’s offers to recall the cooperator, Saad, to the witness stand, or to revisit closing arguments – yet the defendants still prevail on appeal. Id. at *6.

  Arguing for the broad scope of Obagi’s Brady holding? Start with the dissent’s helpful outline supporting that proposition.                                               

For Further Reading: In a grim milestone, last week the first COVID-19 death was reported out of Santa Rita Jail, when Deputy Oscar Rocha succumbed to the disease. See article here. 

  Over 100 inmates have now tested positive for COVID-19 at the jail. Though ninety-three of the inmates are deemed “asymptomatic,” in a deeply troubling interview, one allegedly “asymptomatic” inmate in the jail reports what that designation really means (or rather, what it doesn’t mean). See Infected Santa Rita inmate describes jail life amid COVID-19 outbreak, available here. 

 

 

Image of the Honorable Judge John Owens from https://www.law.com/therecorder/almID/1202638438346/Obamas+Judge+Picks+Advance+in+PostFilibuster+Senate%3Fmcode=1202617072607&curindex=4/?germane=1202638438346&id=1202625862932

 

Graph of comparative infection rates by Chief Assistant Candis Mitchell, available at: https://www.ndcalfpd.org/

 

 

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

 

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