1. US v. Valencia-Lopez, No. 18-10482 (8-19-20)(Bennett w/Hawkins; dissent by Owens). Note: This is an Az FPD case. The 9th vacated and remanded convictions for transportation and importation of marijuana. The defendant, a truck driver, argued he acted under duress; that the cartel forced him by threats to his family to transport 6000 k of marijuana. Over objections (pretrial and trial), the government called an agent to testify as an expert that the cartel does not operate that way and would never entrust this amount of drugs to a coerced driver.

Admission of the testimony was error and was not harmless. The 9th held that the district court did not properly fulfill its gatekeeping role under Daubert for two reasons: (1) it qualified an agent as an expert without explicitly finding that his proposed testimony about the likelihood of coercion was reliable, and (2) a “more important reason,” it admitted the agent’s testimony despite the government establishing no reliable basis for his expert testimony about the likelihood of duress in Mexico. The agent, in testifying that the chance that cartel would operate this way was “[a]lmost nil, almost none,” was without basis or expertise.  “Agent Hall never explained the methodology, if any, that he relied on to arrive at the near-zero probability of drug trafficking organizations using coerced couriers.” “It is one thing for a witness with Agent Hall’s expertise to testify as to the risks to a cartel of using a coerced courier. But that is a far cry from him essentially testifying that the cartel never does it.” “[G]iven his lack of experience within Mexico, and with no explanation of his methodology, “there is simply too great an analytical gap between” his experience and his conclusion.” The court could not just say it goes to the weight; the court must perform the Daubert reliability gatekeeper function. The errors were not harmless. 

Dissenting, Owens argues that the record for the agent’s background and experience was sufficient for reliability and Daubert admissibility. Thus, the lack of an explicit finding of reliability was harmless.

Congrats to Ryan Moore, AFPD, D. Arizona (Tucson) for the win. A shout out to the trial lawyers, AFPDs Elena Kay and Matei Tarail, for their pretrial and trial advocacy on the issue and making the record.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/19/18-10482.pdf

2. US v. Swenson, No. 18-30215 (8-19-20)(M. Smith w/Bress; partial dissent by N. Smith).  This is a garnishment case. Under MVRA, the gov’t garnished the SSN funds of a spouse of a defendant convicted of wire fraud. The 9th tells the gov’t: “hands off!” The SSN funds belong to spouse in a separate account. The defendant had no property rights to spousal SSN.  This delineation was recognized by the state court (Idaho), which had ruled that the SSN Act conflicted with the state’s community property law. The SSN Act preempted state law. The MVRA does not override SSN or make an exception. Partially dissenting (joining on a jurisdictional issue), N. Smith argues that the focus should be on state law, and state law allows the defendant to have property rights, and therefore makes the SSN benefits garnishable, even though the spouse is innocent. The MVRN seeks to make a victim whole, and it is the statute to be followed.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/19/18-30215.pdf

3. Kipp v. Davis, No. 15-99020 (Nguyen w/Paez and Murguia). The 9th affirmed the denial of capital habeas relief. The sentence imposed arose from murder, rape, and robbery. In considering the issues on appeal, the 9th kept returning to the overwhelming aggravated evidence, even, given the extensive mitigation case. Against this background, the 9th considered the claim that petitioner’s references to Satan in a letter reflected his beliefs, and that the introduction was solely to paint him as morally reprehensible. The 9th finds that the references to Satan in a letter were minor, and any error was harmless. Under AEDPA deference, the 9th held that a state court could reasonably have found no IAC. Last, the petitioner argued that extrinsic evidence was introduced when a juror brought a Bible into deliberations. The juror had read phrases (“an eye for an eye” for example). The test for extraneous evidence is whether extraneous evidence was introduced. If it was, then a two-step approach is whether it was possibly prejudicial; and then, if it possibly was (injurious to the defendant), there is a heavy presumption as to prejudice which the prosecutor has to rebut. Unexpectedly, and surprisingly, the circuits are split as to whether introduction of a Bible is extraneous contact. The 1st, 6th, and 11th Circuits have held it was extraneous evidence; the 4th said it was not (akin to quoting from memory. The 9th has sidestepped the issue previously, and did so here again. It considered the passages read not that inflammatory. The 9th also presumed the jury followed the court’s instructions. If there was any error, the error was harmless. 

Hard fought appeal by Deputy FPDs Celeste Bacchi, Mark Drozdowski, and Jennifer Turner , FPD Central District (LA).

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/19/15-99020.pdf

4. Kipp v. Davis, No. 16-99004 (8-19-20)(Paez w/Murguia; dissent by Nguyen). The 9th granted relief in this related case to #3. This was a separate murder and attempted rape. The 9th held that introduction of yet another unadjudicated  murder/rape  violated petitioner’s due process rights as the offenses were too dissimilar to be considered a pattern. Petitioner overcomes AEDPA deference because the state court misstated the facts as to the offenses and ignore petitioner’s evidence as to the differences between the offenses. Dissenting, Nguyen argues that the panel has no basis to consider the court ignored defendant’s evidence as to dissimilarity. Even if there was error, it was harmless.

Congrats on this win – a rare due process evidentiary issue under AEDPA deference -- by Deputy FPDs Celeste Bacchi, Mark Drozdowski, and Jennifer Turner, FPD Central District (LA).

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/19/16-99004.pdf