Case o' The Week: Evidentiary Errors Just the Tip of the Berg - Preston, Lay Witness Testimony, FRE 404(b), and Prosecutorial Misconduct

 "Preston raises over fifteen individual trial errors, across seven different categories."

 (But three suffice).

United States v. Preston, 2017 WL 4638022 (9th Cir. Oct. 17, 2017), decision available here.

The Honorable Judges Alex Kozinski and Stephen Reinhardt

Players: Decision by visiting District Judge Berg, ED Mich., joined by Judge Reinhardt. Concurrence by Judge Kozinski.

  Big win for appellate counsel AFPD M. Edith (“Edie”) Cunningham, for trial counsel AFPD Jay Sagar, and Jon Sands, Federal Public Defender, District of Arizona.

Facts: As an adult, Mitchell Rosenberg alleged that he had been molested by the defendant, Preston, 14 years before while on a reservation in Arizona. Id. at *2. Preston was charged with aggravated sexual abuse of a child in federal court. Id. 

  During the jury trial, Rosenberg’s testimony was the only direct evidence for the government. Id. A therapist, Bussert, who had worked with Rosenberg testified: over defense objection, she opined on whether Rosenberg was telling the truth about the allegations of sexual abuse. 

  Preston was convicted and sentenced to 162 months. Id.

Issue(s): “On appeal, Preston argues that the district court and the prosecutor committed a variety of errors and that these errors – either independently or cumulatively – deprived him of his right to a fair trial.” Id. at *2.  

Held: “Preston raises over fifteen individual trial errors, across seven different categories. We reverse based on the cumulative effect of the following: (1) improper witness testimony that bolstered Rosenberg's credibility and offered opinion on the credibility of sex abuse allegations in general; (2) prejudicial propensity evidence in the form of Preston's ex-wife's testimony regarding a child incest fantasy Preston allegedly had in 2003; and (3) prosecutorial misconduct, namely: commenting on Preston's decision not to testify, witness vouching, and misstating the evidence in summation.” Id. at *3.

  “In addition to improper opinion testimony indicating that she believed Rosenberg individually, Bussart gave improper opinion testimony as a lay witness about whether sex abuse victims generally tell the truth.” Id. at *5.

  “In sum, the district court abused its discretion in (1) allowing the government's line of questioning that led to Bussart's three improper statements indicating that she believed Rosenberg's allegations, and (2) permitting a juror's question to be asked regarding whether Rosenberg demonstrated his emotions in a manner consistent with sex abuse victims generally. In addition, it was plainly erroneous for the district court to allow Bussart to state that allegations of sexual abuse in her patients had normally been true.” Id.

   “The cumulative effect of these [and additional] errors rendered Preston’s trial fundamentally unfair, and his conviction must therefore be reversed and the case remanded for a new trial.” Id. at *12.

Of Note: This debacle of a trial spawned enough error holdings on appeal for a dozen Case o’ The Week memos. It is a must-read.

  In addition to the above “lay witness” holding, the Court also delivers an important FRE 404(b) holding. Id. at *7. Preston’s ex-wife testified – over defense objection – that she had caught Preston masturbating to an image of his eight-year old stepson, years after the alleged crime. Id. The Ninth holds the district court abused its discretion in admitting this testimony under both FRE 404(b) and 403.

  Preston offers a thoughtful and valuable FRE 404(b) / FRE 403 discussion, that recognizes the extraordinarily prejudicial impact of “collateral” sexual evidence in these cases. Add it to your trial arsenal for in limine battles.  

How to Use: Lay witness errors, evidentiary errors - but wait, there’s more. Prosecutorial misconduct also infests this cornucopia of trial problems. The AUSA improperly commented on the lack of defense testimony, and vouched for the government witness, Rosenberg. Id. at *10-*11. Other holdings aside, Preston would still be a very important decision solely for its discussion of prosecutorial misconduct during closing argument. Id. at *10.

                                               

For Further Reading: Two particularly well-known jurists (and famed friends) were on Preston: Judges Reinhardt and Kozinski. 

  For a thoughtful piece mentioning both judges, and discussing some core facts in the morass of myth surrounding the Circuit split brouhaha, see Has the 9th Circuit gone ‘bananas?’ And can Trump break it up?, available here.

Image of Judge Kozinski and Judge Reinhardt from https://www.flickr.com/photos/aclu_socal/5927007238/in/photostream/ .

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

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Case o' The Week: Catch a Tigar by the Tale - Sixth Amendment Structural Error and Limits on Defense Closing Arguments

  There are many rights that can be stomped upon, with convictions

salvaged by that damnable “harmless error.”

  And there are some, that cannot.  

United States v. Brown, 2017 WL 2509230 (9th Cir. June 12, 2017), decision available here.

Players: Important decision by N.D. Cal. District Judge Jon S. Tigar, joined by Judge Paez. 

 "Vigorous" dissenting opinion by Judge Bybee. Id. at *5.

Facts: Daniel Brown was a member of a closed online bulletin board where members shared child porn. Id. at *1. He was charged under 18 USC § 2251(d)(1), which prohibits knowingly advertising or giving notice of the availability of child porn. Id. 

  Before closing arguments, the government moved the court to prohibit the defense from arguing that this particular closed board did not constitute “advertising” or “giving notice.” Id. at *2. Over defense objection, the district court agreed and prohibited that defense argument. Id. Brown was convicted and sentenced to fifteen years. Id. at *1.

Issue(s): “Brown challenges his conviction on the ground that the district court violated his Sixth Amendment right to present his defense to the jury when it precluded him from arguing the government had not met its burden to show that the . . . board involved a “notice” or an “advertisement,” given the closed nature of the bulletin board.” Id.  

Held: “By refusing to allow Brown to present his defense in closing argument based on the closed nature of the . . . bulletin board, the district court “violated [Brown's] fundamental right to assistance of counsel and right to present a defense, and it relieved the prosecution of its burden to prove its case beyond a reasonable doubt. . . .  A deficient closing argument lessens the Government’s burden of persuading the jury, and causes the breakdown of our adversarial system . . . . 

  Since preventing a defendant from arguing a legitimate defense theory constitutes structural error, we must reverse Brown's conviction accordingly.” Id. at *5 (internal quotations and citations omitted).

Of Note: What do the majority jurists, Circuit Judge Paez and District Judge Tigar, have in common? 

  Many decades of trial court experience. 

Hon. District Judge Jon S. Tigar

  Both men served on California county courts for years, and both jurists have served as federal district court judges. By contrast, dissenting Judge Bybee’s first judicial post was to the Ninth. 

  It is admittedly too simplistic to attribute the split in votes solely to the jurists’ courtroom experience. Nonetheless, the wisdom of the trenches does flavor the opinion. See, e.g., id. at *4 & n.5 (explaining the “simple” process of permitting a defense factual argument to the jury, then denying a post-conviction Rule 29 against defense challenge. “That is exactly what criminal trial judges have always done.”) 

  Finally, as a practical matter, it won’t exactly be easy for us to argue the factual technicalities of “advertising” and “notice” to a jury horrified by the child porn images that they’ve just viewed in trial. There’s a good chance that courtroom reality occurred to the veteran trial judges.

How to Use: “Structural error:” an increasingly rare, and ever sweet, phrase. How strong was the AUSA’s case in this prosecution? Who cares? It just doesn’t matter -- when counsel is prevented from presenting a legitimate defense in closing argument, the conviction is reversed – period, full stop. Id. at *5. 

  Great stuff for an appeal, but potent medicine for the district court, too. When an AUSA presumes to constrict the scope of your closing argument, remind the Worthy Opposition and the District Court that limits on this core Sixth Amendment right mean a Ninth-mandated “Do Over” should the jury convict.

                                               

For Further Reading: The Supreme Court is thinking about Structural Error (rarely good news). Weaver v. Massachusetts involves a defense counsel who whiffed on objecting to a closed courtroom during trial.

  (NB: Closed courtroom + timely defense objection = structural error reversal).

   Circuits are split on whether the defense must first show Strickland ineffectiveness before earning a structural error reversal. For an interesting piece on this intriguing conundrum, see “Supreme Court to Decide if One Structural Error Cancels Out Another, available here.

Image of the Honorable District Judge Jon Tigar from http://www.cand.uscourts.gov/assets/images/judges/Judge_Jon_S_%20Tigar.colorresized.jpg

Image of “Don’t Tread on Me” flag from http://finfeetwing.org/images/rattle_n_carolina_gadsden.jpg

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

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Case o' The Week: Venue, Anew - Hsuing and Venue in Federal Criminal Trials

  “Better late than never.”

  True, if you’re the government, and you’re arguing venue.

United States v. Hsuing, 2015 WL 400550 (9th Cir. Jan. 30, 2015) (Ord. amend.), decision available here.

Players: Decision by Judge McKeown, joined by Chief Judge Thomas and District Judge Kendall. Appeal of convictions from trial before Northern District of California District Judge Susan Illston.

Facts: Foreign companies and foreign-national executives were tried for price-fixing under the Sherman Act, for TFT-LCD technologies (flat panel screens). Id. at *1. (The colorful image to the left is the tech under a microscope).

   The defendants met repeatedly in Taiwan, and there fixed prices to charge US customers. Id. During closing arguments, the defense argued that the government had not proved venue. Id. at *3. In rebuttal, the government addressed venue for the first time, arguing defendants’ negotiations of fixed- priced technologies with HP in Cupertino was sufficient to prove venue. Id. at *3. Defense objections that this misrepresented the evidence were overruled. Id.

Issue(s): “[T]he defendants appeal on the basis of improper venue. Four issues are subsumed in the venue challenge (i) our standard of review (ii) the proper standard for proof at trial (iii) whether the government’s representation in closing arguments constituted prosecutorial misconduct, and (iv) whether the government proved venue.” Id. at *4.

Held: “[W]e review de novo whether venue was proper.” Id. at *4. 
  “It is well established that a preponderance of the evidence is the proper standard of proof for venue.” Id. 
  “The defendants accuse the government of sandbagging by relying on ‘late-breaking theories’ of venue in rebuttal. However, the defense invited a response by raising the venue issue in the first place. A prosecutor may respond in rebuttal to an attack made in the defendant’s closing argument.” Id. “[T]he prosecutor did not commit misconduct by making these statements during closing argument, and the district court properly overruled the defendant’s objection.” Id. 
  “Finally, the evidence referenced by the government was sufficient to establish venue by a preponderance of the evidence.” Id. at *5.

Of Note: Read the opening brief by able appellate counsel – one gets the sense that the government’s venue theory was late and, to be charitable, the proof, thin. 2013 WL 526193 at *64. Some of the govt’s venue theories were first “unfurled in post-trial briefing.” Id. The brief rejection of the venue argument in Hsuing also fails to wrestle with an interesting defense argument for a “reasonable doubt” standard (notably, the states are nearly evenly split on whether venue must be proven beyond a reasonable doubt, id. at *81 & n.15).

How to Use: An odd beast, venue. Proof of venue is the government’s burden, but as noted above, need only be shown by a preponderance. Id. at *4. Failure to prove venue can lead to a Rule 29 victory, but the district court can find venue as a matter of law (even when the jury did not find venue proper!). Id. at *4 (citing United States v. Lukashov, 694 F.3d 1107, 1120 (9th Cir. 2012)). Some impressive defense talent slugged away at venue in Hsiung; it is a disappointing decision, but the appellate briefing is well worth a read when mulling a venue attack.

                                               

For Further Reading: Practice tip. If these are the facial expressions of your panel during a Ninth Circuit argument, things are not going well.

   This screen shot is from the argument in Johnny Baca v. Derral Adams. If you have not yet watched the video of this remarkable Ninth habeas argument, do so now - it is available here.  

   In Baca, outraged Judges Kozinski, W. Fletcher, and Wardlaw wonder why California judges were not cracking down on prosecutorial misconduct. See L.A. Times article here.  

   By the end of the argument, Judge Kozinzki – encourages – the Deputy AG to make AG Harris aware of the prosecutorial misconduct in the case within 48 hours. Id.; video at 30:11. The AG’s office quickly folded its tent: Mr. Baca will get a new trial. See Prosecutorial Accountability blog article, here. 

   Recall that in 2013, (then) Chief Judge Kozinski warned, "There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it." See CJ Kozinski's 2013 dissent in Olsen, available here; Huff post here; see also recent McDavid Brady / Giglio debacle in the ED Cal. 

    Prescient.

Image of TFT-LCD technology from "Dell axim LCD under microscope" by Deglr6328, Gabelstaplerfahrer - Transferred from en.wikipedia to Commons.. Licensed under CC BY-SA 3.0 via Wikimedia Commons - http://commons.wikimedia.org/wiki/File:Dell_axim_LCD_under_microscope.jpg#mediaviewer/File:Dell_axim_LCD_under_microscope.jpg

Image of (skeptical) Judges Wardlaw, Reinhardt, and W. Fletcher, in Baca v. Adams, from https://www.youtube.com/watch?v=2sCUrhgXjH4

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

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