Case o' The Week: Bacon Fried Old Expert Rule - Bacon and Remedies for Daubert Expert Error

Barabin burned by Bacon.   

United States v. Bacon, 2020 WL 6498258 (9th Cir. Nov. 5, 2020) (en banc), decision available here.

 Players: Decision by CJ Thomas, joined by Judges Paez, Berzon, Rawlinson, Callahan, Murguia, Hurwitz, Owens, Miller, Bade and Lee.   

 Facts: Bacon and his co-D, Ray, were charged with assault in a federal prison. See blog entry on Ray, available here (describing facts in greater detail). Before trial Bacon gave notice of an insanity defense and a shrink. The district court barred the insanity defense, and the defense mental health expert.

  The three-judge panel held on appeal that the district court abused its discretion in excluding the expert testimony. See United States v. Ray, 956 F.3d 1154 (9th Cir. 2020). The panel (reluctantly) remanded for the DJ to consider the expert again and for a new trial – regardless of whether the district court found the expert admissible. Id. at 1161. In a concurrence, Judge Watford complained about this outcome and criticized the older Barabin rule. Id.

  The case went en banc.

 Issue(s): “We voted to rehear this case en banc to consider what the proper remedy is on appeal when we conclude that a district court has erred under Daubert . . . ., by admitting or excluding expert testimony on one ground, but when we cannot tell from the record whether the admission or exclusion was nevertheless correct on other grounds.” Bacon, 2020 WL 6498258 at *1.

 Held: “Recognizing that there are different circumstances involved in every case, we conclude that a bright-line rule requiring a specific remedy is inappropriate. Instead, each panel should fashion a remedy ‘as may be just under the circumstances.’ 28 U.S.C. § 2106. The remedy may include remanding for a new trial or remanding for the district court to first determine admissibility, then requiring a new trial only if that admissibility determination differs from that in the first trial. We remand this case to the three-judge panel so that the panel may, in its discretion, determine the appropriate remedy in this case.” Id.

   “[A]pplying section 2106, we hold that when a panel of this Court concludes that the district court has committed a non-harmless Daubert error, the panel has discretion to impose a remedy as may be just under the circumstances . . . . Circumstances may require a new trial in some instances; circumstances may dictate a limited remand in others. Of course, the discretion of a panel is not unfettered. The normal rules of appellate review of evidentiary decisions still apply. And nothing in our decision removes Daubert’s important gatekeeping function. But our holding today restores Daubert errors to the usual realm of appellate review and remedy, rather than keeping them in a separate, special category.” Id. at *4.

 Of Note: There’s no good spin: this new rule is bad for the defense. CJ Thomas recounts the history of the old automatic-retrial rule, and the en banc battles during the last decade to overrule it. See id. at *2-*3. This “retrial” rule, that had been created in the civil context, was extended to criminal cases in United States v. Christian, 749 F.3d 806, 813-814 & n.4 (9th Cir. 2014).

There were good reasons for the old rule: the new approach of post-verdict analysis “does not protect the purity of the trial, but instead creates an undue risk of post-hoc rationalization. This is hardly the gatekeeping role the Court envisioned in Daubert and its progeny.” Id. at *2, citing Mukhtar v. Cal. State Univ. Hayward, 319 F.d 1073, 1074 (9th Cir. 2003).

  Unfortunately, however, the tide has shifted in the Ninth: this new Bacon rule gained the support of a unanimous en banc court, with nary a dissent.

 How to Use: It is a brave new world, for Daubert error on appeal, and there’s precious little guidance in Bacon to Ninth three-judge panels, on which remedy is appropriate. Don’t give up on retrial after Bacon: CJ Thomas makes it clear that that option is still on the table. Id. at *4.                                             

For Further Reading: See any interesting news, this weekend? 

  As election results sink in, time to start wondering about Biden’s appointments – and specifically, on the A.G. to replace Barr at the DOJ. For an interesting discussion of this horse race, see Meet the Contenders for Biden’s Cabinet, available here. 

 

 

Image of bacon from https://www.thekitchn.com/archive/2018/02/15

 

 

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

 

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Case o' The Week: A Western Gunn battle -- Ornelas and Mens Rea for Federal Attempted Robbery

   A Ninth Circuit panel, the defendant, and an Officer all wrestled over dangerous Gunn.

Mr. Jesus Eder Moreno Ornelas

   

 (No one badly hurt, thankfully).

  United States v. Ornelas, 2018 WL 5289024 (9th Cir. Oct. 25, 2018), decision available here.

Players: Decision by Judge Friedland, partial concurrence and partial dissent by C.J. Thomas.

  Compelling dissent by DJ Zilly, on defense-expert disclosure issue.

  Yet another notable win for former CD Cal AFPD Carl Gunn.

Facts: Mr. Moreno Ornelas and Forest Service Officer Linde got into dramatic fight after a routine stop near the Mexican border. Id. at *1. 

  According to Officer Linde, Moreno attacked him and knocked him out, grabbed his gun, and tried to shoot the officer. Id. at *2. Moreno then tried to steal Linde’s Forest Service truck. Linde testified that he ultimately prevailed and arrested Moreno at gunpoint. Id. 

  According to Moreno, he compiled with Linde’s orders to sit and be handcuffed, but the officer kept a gun trained on him with a finger on the trigger. Id. Fearing for his life, Moreno wrestled for the gun, emptied the chamber by firing into the air, then ran for the truck to escape. Id. 

  Among many other crimes, Moreno was charged with attempted robbery of the Officer's gun and the Forest Service truck. Id. (18 USC Sec. 2112). 

  Although the defense requested mens rea instructions, it did not object when the court instructed the jury and failed to require the specific intent to steal. Id. at *3. 

  Moreno was convicted by the jury on most counts, including the Section 2112 attempted robbery, and sentenced to 43 years. Id.

Issue(s): “On appeal, Moreno maintains that the district court plainly erred in two ways in instructing the jury on the elements of attempted robbery under § 2112: 

  (i) by failing to instruct that Moreno must have possessed the specific intent to steal; and 

  (ii) by failing to instruct that Moreno must have formed such intent by the time he used force, not just by the time he tried to take the property in question.” Id. at *3.

Held: “We agree with the first contention but reject the second.” Id. “Although the district court was correct not to instruct the jury that Moreno must have formed the specific intent to steal by the time he used force, the court was wrong—and plainly so—to omit an instruction on specific intent altogether.” Id. at *4.

  “Congress’s use of the common law terms ‘robbery’ and ‘attempted robbery’ in § 2112 imported the common law meanings of those terms. The district court therefore should have instructed the jury that, to convict Moreno of attempted robbery, it needed to conclude beyond a reasonable doubt that he had formed the specific intent to steal the gun and truck by the time he tried to take them, though not necessarily by the time he used force against Linde. And, given the well-settled elements of common law robbery as well as Carter’s clear indication that § 2112 incorporates the common law, failing to instruct the jury on specific intent was an obvious omission.” Id. at *5.

Of Note: Another issue in this complex appeal was the preclusion of a late-disclosed defense expert. Id. at *9.

  Suffice it to say, don’t be late. Id. at *11 (“Because he did not come close the meeting the district court’s reasonable deadline, Moreno was properly left to proceed without his desired expert testimony.”) 

  Somewhat lost in this bigger opinion is a compelling dissent by WD Wa. District Judge Zilly. Id. at *12. Judge Zilly - who is in the district court trenches every day - has the better argument. If caught in this exclusion bind, take a look at Judge Zilly's dissent while attempting to distinguish this Ornelas outcome.  

How to Use: Moreno earned a reversal on the mens rea instruction, but lost on another instruction challenge. At trial, he sought a specific theory-of-the-defense instruction on self-defense. The district court refused, and gave the Ninth’s general self-defense instruction. In a detailed analysis, Judge Friedland concludes that this was not error. Id. at *7-*8.

  Along the way, Judge Friedland delivers a decision of first impression on the general adequacy of the general self-defense instruction. Id. at *8.

  Eyeball Ornelas if considering a self-defense or justification theory: the opinion is likely to impact your run at specific theory-of-the-defense instructions.

                                           

For Further Reading: On October 18, Judge Ryan D. Nelson became the second Trump appointee to join the Ninth Circuit. See Ninth Circuit jurist listing here. 

The Hon. Judge Ryan D. Nelson

For a general background on the Ninth’s newest jurist, see blog post here. 

  President Trump has also nominated three additional nominees to the Ninth (to the considerable chagrin of a pair of powerful California Senators). See CNN article here. 

Image of Mr. Moreno from https://arizonadailyindependent.com/2014/08/25/us-forest-service-worker-encouters-illegal-immigrants/

Image of the Honorable Judge Ryan D. Nelson from https://www.idahostatejournal.com/news/local/melaleuca-attorney-s-nomination-to-th-circuit-squeaks-through-panel/article_a9fa823f-7fc4-5357-a328-a3b19a7da666.html .

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

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Case o' The Week: Ninth, Conflicted - Walter-Eze and "Actual" Conflicts of Interest

Actual conflict = actual presumed prejudice?

Actually, not this time.  

United States v. Sylvia Ogbenyeanu Walter-Eze, 2017 WL 3648511 (9th Cir. Aug. 25, 2017), decision available here.

Players: Decision by visiting D NY DJ Amon, joined by CJ Thomas. Concurrence (only in judgement) by Judge Nguyen.

Facts: Walter-Eze was charged with health care fraud. Id. at *2. Court-appointed counsel received three trial continuances. Id.

  Two weeks before trial, retained counsel appeared. Id. The district court allowed the substitution after receiving commitments to proceed on an agreed-upon trial date. Id. Nonetheless, on the first day of trial, counsel filed an emergency motion to continue, explaining they were not prepared. Id. at *3.

   The court agreed to continue if counsel agreed to pay witness and jury fees. Id. Defense counsel worried that this might get reported to the California State Bar, so agreed to proceed to trial. Id.

   On appeal, Walter-Eze chronicled defense counsel’s failure to review government exhibits, failure to prepare jury instructions, complete a PowerPoint presentation in time for closing, failure to secure attendance of defense witnesses, or give the government a timely list of witnesses or experts. Id. at *10.

  Walter-Eze was convicted and sentenced to ninety-seven months. Id.

Issue(s): “Walter-Eze raises challenges to her conviction . . . [on the ground that] a conflict of interest created by the district court when it conditioned an adjournment on counsel’s paying jury costs and witness fees violated her Sixth Amendment right to counsel.” Id. at *2.

Held: “[F]or the purposes of Sullivan’s presumption of prejudice, we hold that under the circumstances present here, both the threat of fees and the threat of potential sanctions created a conflict of interest that adversely affected counsel’s performance.” Id. at *6.

  “In this case, the conflict was concretely manifest in real time, as Darden was called upon to choose between being fined and potentially facing a bar investigation or going to trial even though he and his co-counsel repeatedly indicated on the record that they were unprepared. For this reason, the government is wrong to assert that Darden was faced with only a ‘possible’ conflict. In fact, the existence and impact of the conflict could not have been clearer.” Id. at *7.

  “[U]nder the facts of this case, Walter-Eze must show that she was prejudiced by this actual conflict, and because she is unable to do so, we do not disturb the verdict.” Id. at *8.

Of Note: In the 1980 Sullivan decision, the Supreme Court presumed prejudice when defense counsel had an actual conflict – thereby avoiding the prejudice requirements of “normal” Strickland challenges. The real issue in Walter-Eze is whether the Ninth will presume prejudice after it finds an “actual conflict” on these particular facts.

  In an important (albeit confusing) holding, DJ Amon relies on the 2002 Mickens Supreme Court decision and concludes that – despite a clear finding of an “actual conflict” – prejudice will not be presumed in this case. Id. at *5.

  Judge Nguyen doesn’t understand this analysis: in her concurrence, she questions how the majority finds an actual conflict that does not trigger the presumption of prejudice. Id. at *18.

  Practically speaking, the Walter-Eze decision may effectively limit “presumed prejudice” to cases where defense counsel represents multiple clients in the same case. However, as Judge Nguyen complains, this outcome is a fact-entangled “rule” that seems ripe for further exploration.

How to Use: Whatever its shortcomings, Walter-Eze is an exhaustive discussion of conflicts. Id. at *5 -*7. Conflicts are a fuzzy field – at a minimum, the opinion is a helpful compilation of authority.

                                        

For Further Reading: Can you avoid a Ninth Circuit decision, just because mandate has been stayed? No – and neither can judges. As the Ninth just concluded, “Notwithstanding this high threshold, petitioners have demonstrated that the judges within the District of Arizona who found that Sanchez-Gomez was not binding on them committed clear error.” See Ord. here. 

  A remarkable win in the righteous shackling saga – congrats to D. Az. AFPD Dan Kaplan.

Image of “Conflict of Interest” from http://freedomradio91.com/wp-content/uploads/2016/05/Article-Conflict-of-Interest.jpg

Steven Kalar, Federal Public Defender, N.D. Cal. Website available here.

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