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: Expert Win Means Try it Again - Ray and Defense Psych Experts

   Retrial win, to panel’s chagrin.

United States v. Ray, 2020 WL 2029260 (9th Cir. Apr. 28, 2020), decision available here.

Players: Per curiam decision, joined by Judges Watford, Bennett, and visiting District Judge Radkoff.

  (Disgruntled) concurrence by Judge Watford, joined by Jude Bennett and District Judge Radkoff.

Facts: Ray and his co-D, Bacon, were incarcerated at Victorville. Id. at *2. Security cameras recorded Ray and Bacon exchanging a book, Bacon extracting something from it, and then Bacon stabbing an inmate with a shank. Id. 

  The men were charged with federal assault counts. Before trial Bacon gave notice under Fed. R. Crim. Proc. 12.2 of his intent to assert an insanity defense. Id. In support of this defense, Bacon noticed a forensic clinical psychologist. The district court barred the testimony, finding it not relevant. Id. The court then barred Bacon’s insanity defense. Id. at *3. The pair were convicted after a two-day trial. Id. at *2.   

Issue(s): “On appeal Bacon argues that the district court should have allowed his forensic clinical expert psychologist, Dr. Karim, to testify, which would have allowed him to present his insanity defense to the jury.” Id. at *1.

Held: “We hold that the district court abused its discretion in excluding Dr. Karim’s testimony because the testimony was relevant to Bacon’s defense. Because this error was not harmless, and we cannot tell from the record whether the testimony was reliable, we must vacate Bacon’s conviction and remand for a new trial.” Id. at *1 (footnotes omitted).

  “[T]he district court abused its discretion by precluding Dr. Karim’s testimony because he did not opine that Bacon was unable to appreciate the nature and quality of his acts at the time of the assault. This was the wrong legal standard. Instead, the district court should have focused on whether Dr. Karim’s testimony would have assisted the jury ‘in drawing its own conclusion as to a ‘fact in issue,’ —the impact of any serious mental health disease or defect on Bacon’s ability to appreciate the nature and quality of his acts. If otherwise admissible, Dr. Karim’s expert testimony ‘would have been highly probative’ of Bacon’s mental state and ‘unlikely to cause significant confusion with the jury if properly constrained by compliance with the rules of evidence.’ . . . Thus, even if the district court had explained the Rule 403 exclusion, it likely would have abused its discretion. With no explanation, it clearly did so.’ Id. at *4 (citation and quotations omitted).

Of Note: The Ninth remands to the district court to consider the expert again, and for a new trial – regardless of whether or not the district court finds the defense expert admissible. That outcome is a burr under Judge Watford’s saddle, who complains about the Ninth’s “new trial” rule in a concurrence. Id. at *5 (Watford, J., concurring). The origins of this welcome ‘new trial’ rule? The Ninth’s decision in Estate of Barabin, extended to criminal trials in 2014 in United States v. Christian. 

  Academics will continue to debate the circuit split caused by Barabin and Christian – but for us in the trenches, the lesson is that we may get a full-trial ‘do-over’ when the district court guesses wrong and erroneously excludes a defense expert witness. Remind the DJ of this likely outcome when its FRE 702 / 704 analysis is hot and hostile to your defense expert.

How to Use: Ray is an accessible case on the proper analysis for the admissibility of experts. Here, the DJ goofed by rejecting the relevance of the shrink’s ultimate conclusion, instead of the relevance of the psych eval and medical diagnosis. Id. at *3. Read Ray when pitching a defense shrink: it provides a helpful blueprint.

                                               

For Further Reading: The Fed’s Terminal Island incarcerates over 1,000 men. Over 600 inmates are now COVID-19 positive: four have died. See ABC Article here.

  Widespread testing at Lompoc likely to start tomorrow: brace for skyrocketing numbers from that prison as well.

Image of “Psychiatric Expert Witness” from http://psychiatricexpertwitness.org/

Image of Terminal Island and COVID-19 measures from https://abc7.com/inmates-terminal-island-prison-deaths/6141335/

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

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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: No 702 => 192: Spangler, Defense Experts, and FRE 702 Relevance

Appellant Mark Spangler

Former IRS employee. 

Former Criminal Investigator. 

Forensic Accountant.

Defense Expert.

Excluded.

   United States v. Spangler, 2016 WL 191997 (9th Cir. Jan.15, 2016), decision available here.

Players: Decision by Sr. DJ Lefkow, joined by Judges McKeown and Tallman.

Facts: Spangler (pictured above) was an investment advisor who created two “normal” investment funds. Id. at *1. Investors were told that these funds would hold stock from publically-traded companies, and investment decisions would be made by an outside investment manager. Id.

 Spangler also created a high-risk investment fund dedicated to start-up companies. Id. Spangler himself diverted money from the “normal” investment funds to support the (unsuccessful) high-risk fund, without clearly explaining to the “normal fund” investors what was happening. Id. at *2.

The scheme fell apart, and Spangler was charged with wire fraud, money laundering, and investor fraud. Id. at *1. Id.

Before trial, Spangler noticed expert witness John Keller, a forensic accountant and former IRS criminal investigator. Id. at *3. The court excluded this expert as not relevant. Spangler was convicted and sentenced to 192 months. Id.

Issue(s): “Spangler . . . argues that the district court erred in precluding his expert witness, John Keller, from testifying.” Id. at *3. “Spangler argues that Keller’s testimony would have been relevant to his intent to defraud his clients.” Id. at *4.

Held: “Spangler’s ability to challenge the ruling excluding expert testimony is governed by Federal Rule of Evidence 702.” Id. at *3.  

“Given the government’s theory, any testimony that the client’s financial statement accurately reflected the amount of money invested in each . . . fund would have been irrelevant. Rather, the government’s point was that, while the financial statements were technically accurate, they failed to disclose the reality behind Spangler’s investment decisions. . . . 

Nor was Keller’s proposed testimony about the prudence of Spangler’s investment decisions relevant to fraudulent intent . . . That in hindsight Spangler’s investments in startup companies were arguably prudent does not negate his fraudulent intent.” Id. at *4.

Of Note: Spangler is a case to distinguish. One important fact is that Spangler had three other experts that the district court deemed admissible – yet the defense didn’t call them at trial. In both the harmless error analysis, id. at *4, and the Sixth Amendment analysis, id. at *5, the Ninth emphasized that Spangler did not call these (permitted) experts to testify. An unusual fact to seize upon when fighting a harmless error analysis. 

(And note a small bright spot – the Ninth rejects the government’s argument that the entire expert-appeal was precluded because Spangler presented no defense at trial. See id. at *3 (distinguishing Luce, , 469 U.S. 38 (1984)).   

How to Use: You’ve dissected the indictment and have found a flaw. Eureka! Now, do you move to dismiss pretrial (allowing the AUSA to trot back to the grand jury to get a superseding), or do you wait and bring the motion after the petit jury is sworn in?  

Spangler discusses this conundrum. (Spangler brought a challenge to the indictment ten days into trial). “Although the failure of an indictment to state an offense cannot be waived, a tardy challenge – that is, one made during trial or after the verdict – suggests a purely tactical motivation and is needlessly wasteful because pleading defense can usually be readily cured through a superseding indictment before trial.” Id. at *7. 

The defense family wrestled with this timing question during the early Apprendi era – Spangler’s discussion is a depressing refresher on how a “tardy challenge” is likely to be viewed on appeal.

                                               

For Further Reading: FRE 702 needs a re-write. So argues Defending Daubert: It’s Time to Amend Federal Rule of Evidence 702, 57 Wm. & Mary L. Rev. 1 (2015), available here.

Here’s a teaser: “Many commentators have bemoaned the “lackadaisical” approach that some courts have taken in screening out unreliable forensic evidence in criminal prosecutions. Public defenders offices have argued that more vigilant ‘gatekeeping’ is especially important in criminal cases, where innocent defendants can lose their liberty based on faulty forensic evidence, and adversarial testing is less likely to curb the impact of ‘bad science.”’

Image of Mark Spangler from http://www.investmentnews.com/article/20140314/FREE/140319938/former-napfa-chairman-spangler-gets-16-years-for-fraud-must-pay-19

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

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Ninth Not Crazy for Limitations on Defense Shrink: Christian and Defense Experts

Hon. Raymond C. Fisher

  A shrink finds a defendant suffers from psychosis, has probable delusions, and a borderline personality disorder, but the psych can’t testify as a defense expert on diminished capacity.

  Crazy? The Ninth thinks so, too. United States v. Christian, 2014 WL 1491887 (9th Cir. Apr. 17, 2014), decision available here.

Players: Decision by Judge Fisher, joined by Judge Berzon. (Good) concurring and dissenting decision by Judge Alarcón. Id. at *10-*11.

Facts: When Christian’s car was repossessed he was displeased with the inability of the police department to help. Id. at *2. So displeased, in fact, that he emailed threats to a police officer and to a prosecutor. Id. He was tried before a jury for emailing threats, in violation of 18 USC § 875(c). Id. at *3. 

  Before this federal trial (near the time the emails were sent), Christian had been evaluated by a psychologist for competency in unrelated state proceedings. Id. That psych considered Christian incompetent, diagnosed him with a psychosis, and recommended that he be sent to a facility for therapeutic care and treatment. Id. 

  Federal defense counsel noticed this psych as an expert to testify on diminished capacity. Id. The district court refused to allow this testimony, because of the different legal standards for competency and dim cap. Id. 

  With no psych evidence, a dim cap instruction was denied, and Christian was convicted. Id. at *2, *3.

Issue(s): Christian “argues that the district court should have allowed his expert, a psychologist who had earlier examined him for competency to stand trial, to testify regarding his diminished capacity defense and that he was entitled to a jury instruction on diminished capacity even without such expert testimony.” Id. at *1.

Held: “[T]he district court abused its discretion by excluding Christian’s expert solely because he examined Christian for competency rather than for diminished capacity. Instead of focusing exclusively on the different legal standards governing the conclusions the expert was asked to draw, the district court should have evaluated whether the substance of the expert’s testimony would have helped the jury decide whether Christian could form the specific intent to threaten the recipients of his emails . . .” “[T]he court should not have excluded such testimony without conducting a voir dire or otherwise giving the expert an opportunity to explain how he could provide meaningful and relevant testimony on diminished capacity from the competency evaluation that he had conducted . . . We . . . vacate Christian’s conviction and remand. . .” Id. at *2.

Of Note: Judge Fisher provides a thoughtful analysis of the true focus of the inquiry in this case – the relevance of the omitted testimony. Id. at *5-*7. Christian is one of the best opinions on defense expert witnesses to come out of the Ninth: it is well worth a close read. In addition to the valuable core holding, Judge Fisher sets forth a great new rule for the Ninth: “We . . .  hold that the rule requiring a new trial when a district court erroneously admits prejudicial expert testimony in a civil trial, . . . also applies to the erroneous exclusion of expert testimony from a criminal trial.” Id. at *2. (internal citation and quotations omitted). There is, admittedly, a caveat or two to this new rule. See id. at *7 & n.3. Nonetheless, very welcome new law.

How to Use: There are few things more aggravating than a court who won’t allow a clean defense offer of proof. That happened here: “the district court several times interrupted defense counsel’s attempt to make a more complete offer of proof.” Id. at *4. 

  Fortunately, the Ninth dislikes this practice, too. In Christian, the interruptions helped the defense dodge the tough plain error standard on appeal. Id. This passage is a handy little trial tool to shoehorn in a defense offer of proof.

                                               

For Further Reading: What really determines a federal sentence? The offense? The judge? Or the largely unfettered power of AUSAs? Prosecutors “have immense discretion to decide which charges to prosecute and what charging concession to offer in the course of plea bargaining, yet a paucity of empirical research exists on these consequential decisions.” Assoc. Prof. Brian Johnson, “The Missing Link: Examining Prosecutorial Decision Making Across Federal Courts.” 

   This interesting new 150+ page empirical report, relying on data from the DOJ, is now available here. 

Image of the Hon. Raymond Fisher from http://www.swlaw.edu/swlawonline/winter04/bigchill.htm

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

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