Case o' The Week: Backward-looking Brady Blues - Bruce II and Brady Obligations

 “Prosecutors cannot turn a blind eye to their discovery obligations.” 

United States v. Bruce II, 2018 WL 2021 WL 98242 (9th Cir. Jan. 12, 2021), decision available here.

Players: Decision by Judge Christen, joined by Judge Hawkins and visiting DJ Gritzner.

Facts: Suspects visiting Atwater prison were interrogated, and agreed to cooperate against “Officer Johnson” in an alleged drug-smuggling scheme. Id. at *2.

The cooperators described the officer’s build and noted he wore a Steelers hat – when shown a Facebook photo of defendant (and prison guard) Bruce in a Steelers hat, a cooperator identified Bruce immediately. Id.

The cooperators went to Atwater in an arranged meet: Bruce circled the lot and was then arrested. Id.

Before Bruce’s trial, the government filed an ex parte motion for in camera review of materials relating to prison guard and supervisor Paul Hayes. Id. Hayes was the subject of dozens of inmate complaints, was under active investigation for drug smuggling in another prison, and had been at the stop and arrest of Bruce. Id. The court granted the government’s motion not to disclose this information to the defense. Bruce was convicted at trial. Id. at *3. 

Shortly after Bruce’s verdict, the government indicted Hayes – but the district court denied Bruce’s motion for a new trial alleging a Brady violation

Issue(s): “Bruce argues he is entitled to a new trial because the government violated the discovery obligations imposed by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In particular, Bruce argues the government violated his right to due process because it failed to disclose evidence of another prison guard’s alleged malfeasance.” Id. at *1.

Held: “We agree with Bruce that at least some of the withheld evidence was exculpatory, but conclude it was not material within the meaning of Brady. The district court did not err by denying Bruce's motion for a new trial.” Id.

Of Note: The first issue in Bruce II is a challenge to the suggestive identification. Id. at *4. Sadly, the Ninth rejects a strong defense challenge to the use of a Facebook photo – of Bruce wearing a Steelers hat – as the picture that was shown to the cooperators. Id. at *5.

It is a disappointing analysis, but one that merits reading (and distinguishing) if raising a suggestive ID challenge.  

How to Use: Although the defense Brady challenge ultimately fails on prejudice, the opinion does have a very helpful discussion of what is “exculpatory.” Id. at *8. Judge Christen rejects the government’s attempts to conflate the “materiality” and “exculpatory” analyses, and chastises the government for failing to “acknowledge its broader ethical responsibility” to search out information relating to Hayes. Id. Even if the government did not intend to call Hayes as a witness, it still “bore the burden of investigating whether potentially exculpatory evidence existed.” Id.

While this opinion begins with a suggestive-ID loss and ends with a prejudice whimper, mine its middle for useful gems on Brady obligations.                              

For Further Reading: In October of 2020 the Due Process Protection Act (“DPPA”) created advisement requirements to remind the government of its Brady obligations. See article here. 

Would a DPPA advisement have prevented the deeply troubling Brady violations that were chastised in Bruce II? Nope. A pretrial Brady order with more teeth than the DPPA is needed – and one that promises to enforce California Rule of Professional Conduct 3.8 if there are violations. See Rule 3.8 here. 

An admirable model Brady order has long been in use in D.C. – something to emulate out here in the West. See D.C. Standing Order here. 

 

 

“Turning a blind eye” illustration, of Lord Nelson, from https://stumblingandmumbling.typepad.com/stumbling_and_mumbling/2017/03/david-daviss-strategic-ignorance.html

 

 

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

 

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Case o' The Week: (Her) Honor and a Privilege - Fomichev and FRE 501 Marital Communication Privileges

 Till death (or interrogating federal agents) do us part.

United States v. Fomichev, 2018 WL 3748658 (9th Cir. Aug. 8, 2018), decision available here.

Players: Decision by Judge Christen, joined by Judges Wardlaw and Owens.

Facts: Fomichev, born in Russia, came to the States. Id. at *1. He met a woman, Pogosyan, and they married soon after. Id.

  Pogosyan applied for a visa for him, Homeland Security found the marriage bona fide, and Fomichev obtained conditional residence. Id.

  Years later, IRS agents confronted Pogosyan about where she and Fomichev lived and their tax returns. Id. She said she wanted to “come clean” and admitted she had only agreed to marry Fomichev so he could secure US citizenship – he’d pay her rent in return. Id.

  She made a recorded call to Fomichev, and he made incriminating statements (urging her to “not set him up.”) Id.

  They divorced, and Fomichev went to trial on immigration and tax charges. Id. at *2. Fomichev moved to suppress the recordings with his ex-wife, arguing that they were protected under the marital communications privilege. Id. The court extended the “sham marriage exception” to the privilege, and denied the motion. Id.

  Fomichev was convicted. Id. at *3.

Issue(s): “Fomichev’s challenge . . . primarily relies on the marital communications privilege, arguing that the district court erred by admitting statements he made to Pogosyan in confidence during the course of their legally valid marriage.” Id. “The government recognizes that we have applied the sham marriage exception only to the spousal testimonial privilege, but it argues that there is no principled reason not to extend the exception to the marital communications privilege, and that allowing a defendant to hide behind the marital communications privilege while engaged in marriage fraud fails to balance the privilege against society’s strong interest in the administration of justice.” Id. at *3.

  “[T]he government is free to try to prove that Fomichev falsely certified that he did not marry for the purpose of obtaining an immigration benefit . . . . The question before us is limited to whether the government should be allowed to use Fomichev’s private marital communications in order to prove its case.” Id. at *4.

Held: “We are not persuaded that the exception should be extended.” Id. at *3.

Of Note: Fomichev is an important win for FRE 501 privileges -- the marital communications privilege will not be weakened by a new exception urged by the government. The opinion is also a thoughtful recognition that marriages come in all cultural stripes and flavors -- Judge Christen is appropriately reluctant to wade into this intensely private aspect of our lives, and opine on what is and isn't a "sham" marriage. See id. at *5 & n.3.

  However, there are complications. 

  The Ninth notes well-established law holding that the marital communications privilege does not extend to communications that take place after the “marriage becomes irreconcilable.” Id. at *5. The district court in this case made no findings about whether this marriage was “irreconcilable” when Fomichev made his statements to his wife. The Ninth therefore remands the case to the district court to rule on “irreconcilability.” Id.

  Given the district court’s previous musings on the “sham marriage,” “irreconcilability” may be a tough row to hoe, on remand.

How to Use: The government had an additional (worrisome) argument on appeal: that Fomichev’s statements to his wife were not entitled to the privilege, because they were made “in furtherance of a joint criminal activity.” Id. That “well-recognized exception,” id. at *3 & n.2, might have carried the day for the government. The Ninth, however, found that this argument was “raised for the first time on appeal, so we do not address it.” Id. 

  This declination comes despite the fact that the government argued in the district court that the statements amounted to witness tampering. Id. at *3 & n.2. The government, explains Judge Christen, “failed to cite any authority [in the district court] supporting such an exception.” Id.

  Fomichev is a commendable and honest application of appellate waiver against the government: tuck this waiver discussion away for use in future appeals.

                                               

For Further Reading: This panel of three active Ninth Circuit judges was an unusual draw, of late. No visiting District or out-of-circuit judges, no Senior Circuit judges -- a statistical anomaly.

  It was also notable because two of the three jurists had been drawn to replace former judges on the panel (Judges Kozinski and Reinhardt). If you have access to the Daily Journal, Nicolas Sonnenburg has written an interesting article on these delicate judicial switches: 9th Circuit case reassignment policy raises tricky questions, SF Daily Journal Friday Aug. 10, 2018.

Image of bridge, groom, and gavel from http://www.theweddinglawyer.co.uk/home/ .

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

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Case o' The Week: Mistakes Were Made - Minor Role Adjustments and Amendment 794

  Errors not cool, for cocaine mule.

United States v. Aguilar Diaz, 2018 WL 1220508 (9th Cir. Mar. 9, 2018), decision available here.

Players: Decision by Judge Christen, joined by Judges Graber and Murguia. Welcome win for AFD Samuel Eilers, Federal Defenders of San Diego, Inc.  

Facts: Aguilar Diaz pleaded guilty to importing kilos of cocaine and heroin from Mexico. Id. at *1.

 At sentencing, the defense explained that he had only been involved in two prior crossings: trial runs for this offense. Id. He was only going to get paid a grand for his role as a courier. Id. at *2.

  Aguilar Diaz sought § 3B1.2(b) minor role adjustment articulating the five factors in the Commission’s clarifying Amendment 794. Id. The district court adopted the government’s argument “with little elaboration and denied the minor-role adjustment.” Id.

Issue(s): “[Aguilar Diaz] appeals the . . . denial of a minor role adjustment for his sentence pursuant to . . . § 3B1.2(b).” Id. at *1.

Held: “[W]e vacate and remand for resentencing.” Id. “Although the district court has considerable latitude in ruling on minor-role adjustments . . . on this record we must remand for re-sentencing because the decision to deny the adjustment rested on incorrect interpretations of the § 3B1.2 Guideline and Amendment 794. The difficulty is that the district court adopted the government’s argument with little elaboration, and the government’s argument included an incorrect interpretation of § 3B1.2 and Amendment 794. First, the government relied on the fact that Aguilar Diaz agreed to accept money in exchange for transporting drugs, but ignored that his compensation was relatively modest and fixed. There was no evidence that Aguilar Diaz had a proprietary interest in the outcome of the operation or otherwise stood to benefit more than minimally. Second, though the government correctly identified [two other participants in the smuggling] as the comparison group, it did not account for Aguilar Diaz’s limited understanding of the overall ‘scope and structure of the criminal operation.’” Id. at *6.  

Of Note: The old minor role adjustment guideline had created a circuit split. Id. at *3. Amendment 794, effective November 1, 2015, resolved that split by specifying the pool of folks to whom the defendant is to be compared: other participants in the same criminal scheme, not hypothetical typical offenders. Id. In a careful analysis, Judge Christen clearly lays out the history of the guideline and Amendment, and discusses the (non-exhaustive) list of five factors a district court is to consider when deciding whether to grant a minor-role adjustment. Id.

  Aguilar Diaz is worth a close read when arguing for minor role – particularly the Ninth’s favorable recitation of the Commission’s lament that “minor role adjustments had been applied inconsistently and more sparingly than the Commission intended.” Id. at *4 (quoting USSG § 3B1.2 cmt. n.3(C)) (emphasis added).

How to Use: Wait - how did this reversal happen, when it is black letter law that a district court doesn’t have to “tick off the factors on the record to show that it considered them?” Id. at *4. The defense got a significant assist from the AUSA in this appellate win. At sentencing, the government incorrectly characterized the guideline and amendment’s application. The sparse sentencing transcript didn’t make clear that the District Court understood those errors and rejected them. Id. at *6.

  This holding isn’t exactly a new rule, but it is welcome precedent that highlights a path to appellate victory. When the government bumbles the guidelines and the district court doesn’t expressly reject the mistake, use Aguilar Diaz as your hook for reversible appellate error.

                                               

For Further Reading: President Trump has nominated four Sentencing Commissioners. Like prisoners in a chain gang, the fates of these candidates are linked -- we are told that the full slate for this bipartisan commission will rise or fall together in their Senate confirmations.

  Judge “Hang ‘em High” Hudson and Adjunct Professor William Otis are two Commission candidates that have elicited strong views. The pair “could make it harder for the full slate of four to win swift U.S. Senate confirmation.” See article here. 

  Recall that it takes four Commissioners to dance the Guideline tango: we’re currently one Commissioner shy. See USSG Web Page here. 

  With a kipped quorum, and controversial candidates complicating confirmations, the Commission’s main work may be earnest studies and frequent Tweets, for awhile. See USSG Twitter page, available here.  

Image of mule from https://en.wikipedia.org/wiki/Mule#/media/File:Juancito.jpg, By w:User:Dario u / User:Dario urruty (Own work (w:User:Dario u / User:Dario urruty)) [Public domain], via Wikimedia Commons

Image from “O’ Brother Where Art Thou” from http://deepintomovies.blogspot.com/2011/05/o-brother-where-art-thou-2000.html

Steven Kalar, Federal Public Defender, Northern District of California. Website at www.ndcalfpd.org

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Case o' The Week: Ninth Digs "Other Dude" Dirt - Urias Espinoza, FRE 404(b), and Third Party Culpability Evidence

 As you SODDI, so shall you reap.

United States v. Espinoza, 2018 WL 493194 (9th Cir. Jan. 22, 2018), decision available here.

Players: Decision by Judge Paez, joined by Judges Berzon and Christen. Admirable win for AFD Michael Marks, Fed. Defenders of San Diego, Inc.  

Facts: Urias Espinoza, a Mexican national, was stopped as she tried to legally cross the border. Id. A search of her car revealed that the rear seats had been hollowed-out and filled with twelve kilos of meth. Id. 

  At the trial for importation charges, the government introduced messages on her cell about delivery of a “product.” Id. at *2. Urias Espinoza’s “blind mule” theory was that her neighbor in Mexico packed her car with meth without her knowledge. Id. She tried to introduce evidence that her neighbor was an admitted drug dealer, with a prior conviction for drug distribution, and a prior deportation (showing why he couldn’t reenter). Id. 

  Most of this proffered evidence of third-party liability was excluded by the district court. Urias Espinoza was convicted and sentenced to ninety months. Id. at *3.

Issue(s): “We consider whether the district court abused its discretion in excluding evidence of third-party culpability.” Id. at *1. “The case centers on the threshold requirement for the admissibility of third-party culpability evidence under the Federal Rules of Evidence.” Id. at *3 (emphasis added).

Held: “We conclude that the district court necessarily abused its discretion by applying an incorrect legal standard to determine whether third-party culpability evidence should be admitted.” Id. at *3.

Of Note: The broad FRE 404(b) sweep in this case is great – for this defendant, trying to introduce bad acts committed by her neighbor. Judge Paez explains that the neighbor’s conviction should have come in, despite the fact that the neighbor’s prior was a decade old, was for pot (not meth), and was for distribution, not importation. Id. at *7. 

  Should we worry a “sauce for the goose, sauce for the gander” flip of this broad FRE 404(b) net against a defendant in future cases? Nope. Judge Paez carefully distinguishes this expansive FRE 404(b) analysis for third-party liability evidence, from the government’s limited use of 404(b) evidence against a defendant. The government faces a higher 404(b) hurdle – defendants deserve more protection than other potential witnesses from “bad acts” evidence. Id. at *7 (“We caution, however, that our ruling that the conviction documents were admissible here is not transferable to a situation in which the government seeks to introduce similar evidence with respect to a defendant's prior crimes under Rule 404(b). . . . This is because the standard of admissibility when a criminal defendant offers similar acts evidence as a shield need not be as restrictive as when a prosecutor uses such evidence as a sword.”)

How to Use: The Court here relies on its 1980 Armstrong decision, which had held that evidence of third-party culpability is relevant and admissible unless barred by another evidentiary rule. Id. Notably, the Court works through – and rejects -- the district court’s interpretation of latter Ninth authority reportedly constraining that broad Armstrong reading. Id. at *4. 

  A great outcome in this case, but beware that Urias Espinoza is deeply grounded in the Federal Rules of Evidence. For habeas folks eyeing state convictions, note that the Court carefully avoids the constitutional “right to present a defense” challenge in this case. Id. at *1 & n.1. (The Ninth also distinguishes – but does not reject – previous Ninth authority finding no constitutional bar to state limits on third-party culpability evidence). Id. at *4.   

                                               

For Further Reading: SODDI – “Some Other Dude Did It:” a time-honored defense. See Imwinkelried article here.

  When the “other dude” is dirty, shouldn’t a defendant be permitted to share that dirt with the jury? The Ninth in Urias Espinoza thinks so, and reverses this conviction despite the high "harmless error" bar. Id. at *10.

  The Ninth is spot on: old-school limitations on third-party liability evidence are outdated and unfair. For an interesting piece discussing this area of law, see Professor David Schwartz and Chelsey Metcalf, Disfavored Treatment of Third-Party Guilt Evidence, available here. 

Judge Judy SODDI image from http://excellentquotations.com/Images-EQ/quotesImages/39354-ExcellentQuotations.com-Judge-Judy.jpg

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

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Case o' The Week: Expert Case A Bitter Pill to Swallow - Diaz and Expert Testimony on Ultimate Legal Issue

  A doc prescribes 5 million opiate pills in four years.

  (Yet the government still needs an expert to opine on the ultimate legal issue: that this was “outside the usual course of professional practice?”)

United States v. Julio Diaz, 2017 WL 6030724 (9th Cir. Dec. 6, 2017), decision available here.

Players: Decision by Judge Christen, joined by Judges Kleinfeld and Graber. 

  Hard-fought appeal by former CD Cal AFPD Davina Chen.  

Facts: Dr. Diaz operated a clinic that served geriatric patients. Id. at *1. Over four years, he wrote 50,000 prescriptions and distributed over 5 million opiate pills – some patients were prescribed over 60 tablets a day. Id.

  He went to trial on 79 counts of unlawfully distributing controlled prescription drugs, in violation of 21 USC § 841(a)(1). Id. Among other things, that statute requires proof that the distribution of the drugs was “outside the usual course of professional practice and without a legitimate medical purpose.” Id. (citation omitted).

  At trial, a government expert testified without defense objection that Dr. Diaz’s prescriptions were written “outside the usual course of medical practice” and “without a legitimate purpose.” Id.

  Diaz was convicted on all counts, and sentenced to the maximum Guideline range: 327 months. Id.

Issue(s): “Diaz timely appeals, arguing that Dr. Chavez impermissibly offered opinion testimony as to a legal conclusion.” Id.  

Held: “We hold that if the terms used by an expert witness do not have a specialized meaning in law and do not represent an attempt to instruct the jury on the law, or how to apply the law to the facts of the case, the testimony is not an impermissible legal conclusion.” Id. at *3.

  “[The government’s expert’s] testimony passed muster under Rules 702 and 704, and the district court did not plainly err by admitting it into evidence.” Id. at *4.  

Of Note: Julio Diaz joins a long list of disappointing expert testimony cases. AUSAs will try to stretch the opinion to argue that “professional” experts can opine at will as to all legal conclusions. Judge Christen, however, strictly limits this “ultimate issue” testimony to a doc’s testimony on “legitimate medical purpose” – a term (we’re told) that does not have a “separate, distinct, and specialized meaning in law.” Id. at *3. The Ninth quotes favorably from a Fourth Circuit case, which distinguished this permitted physician testimony from – for example – testimony about “extortion, deadly force, fiduciary, and unreasonably dangerous.” Id. (quoting United States v. McIver, 470 F.3d 550,561-62 (4th Cir. 2006)). Invoke Diaz’s internal limitations to help prevent further erosion of the vulnerable bulwarks of FRE 702 and 704.

How to Use: While this is a plan error case, there is no plain error analysis in the opinion – just a cursory acknowledgement at the outset, id. at *2, and the “no plain error” holding at the end, id. at *4. Absent is any explanation of how the Court’s decision jives with the Olano plain error prongs. From ambiguity, opportunity. If the government offers similar doctor testimony in your trial, object and (try) to distinguish Julio Diaz as an extraordinarily deferential, plain error review decision.

                                               

For Further Reading: What a difference perspective makes. For those in the trenches of indigent criminal defense, the American Bar Association can sometimes seem like a conservative organization – filled with former AUSAs who sit on the ABA’s white collar and criminal justice committees. Senate Republicans, however, have a decidedly opposite view – they “have declared war on the American Bar Association.” See Republicans step up defense of ‘not qualified’ judicial nominees, available here at Politico.

   Four of President Trump’s judicial candidates have earned a “not qualified” rating from the ABA. The ABA’s role (or lack thereof) in judicial vetting will faces an upcoming test with a Senate procedural vote on Mr. Leonard Steven Grasz. Mr. Grasz is nominated for the Eighth Circuit Court of Appeals, and received a unanimous “not qualified” stamp from the ABAs evaluators. Id.

  Will be interesting to see what role (if any) the ABA plays in the Trump candidates for the vacant Ninth Circuit seats.

Image of opium pills from https://photo-viewbug.s3.amazonaws.com/media/mediafiles/2014/10/06/34361791_large.jpg

Steven Kalar, Federal Public Defender Northern District of California. Website at www.ndcalfpd.org

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Case o' The Week: Ninth Seals the Deal - Doe and Closed Dockets for 5K Sentencings

  “Snitches get stitches sealed dockets.”

 United States v. John Doe, 2017 WL 3996799 (9th Cir. Sept. 12, 2017), opinion available here.

 

Players: Decision by Judge Christen, (mostly) joined by Judge Watford and DJ Soto.

Facts: John Doe (name changed for security) cooperated to work down a meth importation sentence. Id. at *2. He gave info on a narcotics conspiracy; it lead to at least one arrest. Id. Doe received a § 5K1.1 departure at sentencing, and moved to strike the 5K references in the docket and seal entries relating to his cooperation and sentencing. Id. at *2. The district court refused, concluding Doe had failed to rebut the “presumption of openness that arises pursuant to the First Amendment.” Id. at *3.

Issue(s): “Doe argues that the public has neither a First Amendment right nor a common law right of access to § 5K1.1-related documents.” Id. at *4.

Held: “We assume without deciding that there is such a right, and conclude that the facts of this case rebut any resulting presumption of openness.” Id. at *4.

  “Nothwithstanding the lack of more specific threats to Doe and his family, the court erred when I failed to find a substantial risk to compelling interests under the facts of this case.” Id. at *6. “Absent closure, the record establishes that there is a substantial probability of harm to compelling interests in Doe’s case.” Id. at *5. “Here, closure is warranted.” Id. at *7.

   “Assuming that a qualified First Amendment right of public access attached to the § 5K1.1 documents in this case, Doe successfully rebutted the presumption of openness. Accordingly, we REVERSE the denial of Doe's motion to seal and denial of Doe's motion to strike and replace the docket entry text mentioning § 5K1.1. We REMAND for sealing in accordance with this opinion.” Id. at *9.

Of Note: Big issues, swirling about this brief opinion. The subtext is a 2016 report of the Judiciary’s Committee on Court Administrationand Case Management (CCACM). The Committee detailed the harms suffered by cooperators, and reported the “show me your docket” gauntlet that our clients have to run in federal prisons. Id. at *6. The Committee has admirable concern for cooperator safety, but CCACM has also cooked up some radical new proposals – including shifting to a sealed sentencing supplement for all cases (including non- cooperators). Id. at *8.

  CCACM has been pushing for adoption of its controversial proposals by district courts, even before they’ve been approved by the Judicial Conference. In Doe, Judge Christen lauds CCACM’s general intentions, but notes the Committee’s proposals won’t fly given Ninth Circuit First Amendment precedent. Id. at *8, discussing In re Copley Press, Inc., 518 F.3d 1022, 1026-27 (9th Cir. 2008)).

How to Use: As noted above, CCCACM’s “seal it all” proposal won’t work in light of Copley Press. However, Judge Christen explains, “nothing in our precedent prevents district courts from adopting some variation of the practices recommended by the CCACM Report, as long as district courts decide motions to seal or redact on a case-by-case basis. Without running afoul of Copley Press, district courts could include cooperation information in a sealed supplement if the presumption of openness is overcome. Our precedent also allows the presumptive sealing of documents attached to a motion to seal while district courts consider whether the documents should be made public.” Id. at *8.

   Anticipate district courts mulling Doe in cooperator cases – the opinion is a must read before a § 5K1.1 sentencing. 

  And if your client is the target of cooperation (and you’re skeptical of the government’s Brady / Giglio compliance), worry about what the Judiciary’s good-hearted efforts to protect cooperators will mean for your efforts to investigate the government’s witnesses against your client.

                                               

For Further Reading: Why does CCACMS’s obsession with sentencing secrecy make the defense bar nervous? 

  There are at least six million reasons . . .  See Matt Apuzo, “’I Smell Cash’: How the A.T.F. Spent Millions Unchecked – A pair of Informants got $6 million and agents spent freely. The Justice Department fought to keep records of the operation secret,” available here. 

   How did the NYT break such this remarkable story of federal law enforcement abuse, dirty informants (and, by all appearance, corruption)? “The Times intervened in an ongoing fraud lawsuit over the activity and successfully argued that a judge should unseal them.” Id. (emphasis added)

   A sobering reminder of why the First Amendment matters, and an (outrageous) example of the dangers of sealing.

Needlepoint picture from https://img0.etsystatic.com/000/0/6429247/il_570xN.342566852.jpg

Image of Big South Wholesale LLC from http://blog.al.com/spotnews/2011/04/business_gives_shelby_county_s.html

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

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Case o' The Week: Why Ask Why; Dodge Delicti? - Niebla and Corpus Delicti Rule in Drug Conspiracies

“Why hike Pozo Redondo Mountain?” 

(Maybe “Why! Hike Pozo Redondo Mountain!”)

United States v. Niebla-Torres, 2017 U.S. App. LEXIS 1699 (9th Cir. Jan. 31, 2017), decision available here.

Players: Decision by Judge Christen, joined by Judges W. Fletcher and Friedland.

Facts: Niebla was arrested on Pozo Redondo mountain (see map below, showing mountain and town of "Why"). This mountain is near the Arizona-Mexico border: a purported smuggling corridor. Id. at *2. 

  According to the government’s expert witness at trial, drug trafficking organizations control that route: individuals can only cross if they pay, backpack-in drugs, or act as a scout. Id. at *3. Scouts watch for law enforcement from mountaintops, as backpacking smugglers cross the easier flatlands. Id. Agents had seen men acting furtively on this mountain for two days. Id. When a helicopter then detected possible scouts, agents hiked up and found Niebla and another man. Id. at *4.

 In a satchel worn by Niebla they found cell phones and radio batteries. Id. In a nearby cave they found hand-held radios and binoculars. Id. Both men were wearing camo. Id.

  In a Mirandized interview Niebla admitted he was working as a scout, for presumed marijuana smuggling (no marijuana was ever seen or seized). Id. At the trial for conspiracy to distribute a controlled substance, the government introduced Niebla’s confession, his prior scouting conviction in the same area, and testimony from the aforementioned expert. Id.

  Niebla’s Rule 29 was denied, and he was convicted. Id. at *8.

Issue(s): “[Niebla] argues that the conviction must be vacated under the corpus delicti doctrine because the government did not present sufficient evidence to corroborate his confession.” Id. at *8.

Held: “[E]ven if we define the core of the offense very specifically, as an agreement to possess and distribute marijuana, the government satisfied its corpus delicti burden.” Id. at *12.

  “We conclude that the government satisfied the first prong of the Lopez-Alverez corpus delicti test by introducing sufficient corroborating evidence that the core conduct of Niebla’s crime actually occurred.” Id. at *17.

Of Note: Those infernal stash house cases are doubly damnable: they unfairly hammer our clients in the cases themselves, and they create bad law that then infects other areas of jurisprudence. See generally blog entries here. 

  Here, the question for the corpus delicti analysis was whether there was sufficient evidence to corroborate a conviction for conspiracy to smuggle marijuana. However, there was no evidence (outside of the confession) that marijuana was ever actually smuggled. Id. at *14. 

  Judge Christen notes that the Ninth has affirmed stash house drug-conspiracy convictions, when the “drugs” involved were just the products of the agents’ active imaginations. Id. at *14-*15. So too in Niebla: the fact that this was a conspiracy to smuggle (potentially non-existent) marijuana doesn’t impact the corpus delicti analysis.

How to Use: The first prong of the corpus delicti analysis asks if there was sufficient corroborating evidence to establish the criminal conduct at the core of the offense. Id. at *10. So, what is the “core of the offense,” for “conspiracy to distribute a controlled substance?” That simple question is remarkably complicated: the parties argued for three different definitions during the litigation, sometimes flipping back and forth. Id. at *12.

  The Ninth sidesteps the issue, assumes the most defense-friendly version, and decides against Niebla on that theory. Id. This “core of the offense” issue remains unsettled law – start there if dealing with a corpus delicti case.  

                                               

For Further Reading: Last July, the Ninth decided Lindsey: a frustrating mortgage fraud case that rejected lender negligence as a defense and created some unwelcome new law on fraud materiality. See blog here. 

  The Ninth just granted Lindsey’s petition for rehearing. See order here. 

  Why the change of heart? Maybe Universal Health Serv. Inc. v. United States ex rel. Escobar, 579 U.S. __ (2016), decided just before Lindsey. Knock wood for a better materiality outcome in Lindsey, Take Two.

Image of the Pozo Redondo Mountains from https://www.google.com/maps/place/Pozo+Redondo+Mountains/@32.1840835,-112.8765615,82491m/data=!3m1!1e3!4m5!3m4!1s0x812aabee6bfa0a1f:0x68b5f39de1d6d81c!8m2!3d32.3114492!4d-112.6984805

Image of “Why, Arizona” by Ken Lund - Flickr: Why, Arizona (2), CC BY-SA 2.0, https://commons.wikimedia.org/w/index.php?curid=16396941

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

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