Case o' The Week: Convictions Fine, Though Cops Opine - Perez, law enforcement opinion testimony, and FRE 701

No disagreement to report, between Judges Tallman and Berzon.

Hon. Judges Tallman and Berzon

 (Unfortunately).

  United States v. Perez, 2020 WL 3089261 (9th Cir. June 11, 2020), decision available here.

Players: Decision by Judge Tallman, joined by Judges Berzon and R. Nelson.  

Facts: Perez and his co-defendants went to trial on charges arising out of their alleged participation in a violent gang. Id. at *1. The government called four law enforcement witnesses: a BOP investigator, two FBI agents, and a L.A. detective. Id. at *6. The BOP investigator analyzed tattoos, associations, visitations, fund deposits in prison, and communications with incarcerated gang members. Id. He also opined as to the “Mayan roots” of the gang. Id. at *7. The FBI agents matched gang members to monikers, translated gang jargon, and identified indicia of drug trafficking. Id. The agents also interpreted the meaning of graffiti, and opined on the interpretation of wiretaps. Id. The detective went as far as paraphrasing a gang member’s conversation in a way that “made their incriminating nature more clear.” Id. at *8. None of these witnesses were designated as Federal Rule of Evidence 702 experts.

Issue(s): “The four officers opined on a variety of subjects. Appellants claim that some of this testimony, including their opinions on ‘code words, phone calls, graffiti, and tattoos,’ was not permissible lay-opinion testimony.” Id. at *6.

Held: “The district court diligently patrolled the line between lay and expert testimony. In those few instances in which admission of these four witnesses’ testimony was error, Appellants suffered no prejudice. We decline to disturb Appellants’ convictions on this basis.” Id. at *9.

Of Note: The clash between non-expert cop testimony and FRE 701 is a hot area of federal law. Notably, one of the three judges on this panel, Judge Berzon, has raised serious concerns about this dangerous practice. See United States v. Gadson, 763 F.3d 1189, 1223 (9th Cir. 2014) (Berzon, J., concurring and dissenting); see also Ninth Circuit Blog, on Gadson, here. 

  In Gadson, Judge Berzon surveyed the Ninth Circuit’s authority and warned, “These cases well identify the dangers of allowing a police officer—who is not an ordinary lay person—to testify based on masses of information not described in any detail to the jury. When our circuit held in Kevin Freeman that an agent’s ‘interpret[ation of] ambiguous statements based on his general knowledge of the investigation’ was permissible lay opinion testimony, it did not address these risks at all.” Id. at 1226. Despite Gadson, you’ll search in vain for Judge Berzon’s dissent in Perez. An unfortunate silence in the FRE 701 debate.

How to Use: How did Perez differ from Gadson? More pointedly, why did Judge Berzon dissent in the latter but not in the former? Maybe plain error review. Judge Tallman concedes in Perez that some of the testimony “approaches the line that Judge Berzon warned about in her partial concurrence in Gadson . . . .” Id. at *8. Judge Tallman concludes, however, that “A thorough examination of the transcripts of . . . phone conversations reveals they do not so much as mention any Appellant’s name or moniker, nor do they pertain in any way to [the defendants’] roles in [the gang]. There was no plain error in allowing this testimony.” Id. at *8. Judge Tallman concedes times that admission of the testimony might have been erroneous -- but the Court avoids the issue and decides the case on plain error (or, at times, harmless error) review. See e.g. id. (“Even granting, for sake of argument, that any error in admitting [the detective’s] opinions should have been plain to the district court, [the Appellants] cannot show that allowing the jury to hear those opinions affected their substantial rights or the fairness of the proceedings.”)

  Fight to limit Perez as a FRE 701 opinion that we should be cabined to its error analysis, and reject it as a broad endorsement cop psuedo-expert testimony.

                                               

For Further Reading: Gut tell you that our criminal justice system is racist?
  Trust your instincts. 
  For a compelling article gathering statistical proof, see, Radley Balko, There’s overwhelming evidence that the criminal justice system is racist. Here’s the proof.,” available here. (“A 2013 study found that after adjusting for numerous other variables, federal prosecutors were almost twice as likely to bring charges carrying mandatory minimums against black defendants as against white defendants accused of similar crimes.”)

Image of the Honorable Judges Tallman and Berzon from https://www.youtube.com/watch?v=VIkCqoDMZV4

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

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Case o' The Week: Timing Is(n't) Everything - Thornhill and the Admission of Sex Priors

Hon. Judge N.R. Smith

  “After” means after.

 (Unless it happens before).

United States v. Thornhill, 2019 WL 5152584 (9th Cir. Oct. 15, 2019), decision available here.

Players: Decision by Judge Tallman, joined by Judge Ikuta. 

 Well-reasoned concurrence by Judge N.R. Smith.  

Facts: A call lead the FBI to Thornhill. They found child porn on his phone, and a handwritten list of porn search terms. Id. at *1. He was charged with receipt of child porn and went to trial. Id. 

  Before trial, the government noticed its intent to introduce evidence of Thornhill’s prior state conviction for sexual abuse of a minor (his eleven-year old daughter.). Id. At trial, Thornhill stipulated that the images were actual minors and were produced outside of the state of Alaska, that the phone was his, and that the search-term list was in his handwriting. Id. at *2. Before any witness testified, the district court deemed the prior admissible. Id. at *8-*9 (N.R. Smith, J., concurring). 

  The government called one witness, an agent. The government introduced Thornhill’s prior, and the agent explained the prior had involved Thornhill’s daughter. Id. at *2. 

  Thornhill was convicted after two days of deliberation, and sentenced to 262 months (on a receipt case!) Id. at *2.  

Issue(s): “The question before us is whether the district court abused its discretion when it admitted evidence of Thornhill’s prior Alaska state conviction for sexual abuse of a minor in the second degree.” Id. at *1.

Held: “We conclude that it did not, and we affirm.” Id.

Of Note: This appeal is about the interplay of FRE 414 (permitting evidence of similar crimes in child molestation cases), FRE 403 (the “probative v. prejudicial” balancing test) and United States v. LeMay, 260 F.3d1018 (9th Cir. 2001) (the Ninth’s explanation of how these rules have to interact).

  The 2001 LeMay opinion set out five factors used to determine admissibility. The fifth factor is “the necessity of the evidence beyond the testimonies already offered at trial.” Id. at *3 (emphasis added). But wait -- in Thornhill, the D.J. didn’t wait to hear the testimony offered at trial. Instead, the court ruled that the prior was admissible before any witnesses testified. So how does the majority reconcile the non-discretionary language of LeMay, with the premature admission in Thornhill? 

  It doesn’t, opines Judge N.R. Smith. 

  In a compelling concurrence, Judge N.R. Smith expresses his “concern” with the majority’s “casual disregard” of the “non-discretionary language” of LeMay. Id. at *7 (N.R. Smith, J., concurring). The concurrence correctly explains that child molestation priors are the easiest for the government to get in, yet they have a “profound impact” on juries. Id. at *8. Because of the jury antipathy these priors evoke, it is particularly important that a district judge balance the admission of a child molestation prior against the testimony the jury has already heard. Id. at *8. In Judge Smith’s view, the Thornhill panel changed Ninth law (LeMay) with no intervening Supreme Court decision: a Miller v. Gammie faux pas. Id. at *8.

How to Use: Judge N.R. Smith concurred in the affirmance of the conviction, despite the majority’s approach, because he viewed the trial error as harmless. Id. at *9 & n.3 (N.R. Smith, J., concurring). A different fact pattern may have cost the government its conviction, after the premature admission of a sex prior. Id.

  Even Judge Tallman, writing for the majority, concedes that “a more complex case might warrant reserving a final ruling until after testimony has been elicited.” Id. at *6. In the majority opinion Judge Tallman emphasizes the simplicity of the Thornhill trial in an effort to avoid LeMay’s “after testimony” rule. 

  Remember that the LeMay fifth factor still exists, and target Thornhill as ripe for distinction: few trials will ever be as simple as this one-witness, many-stip affair.

                                               

For Further Reading: Lousy rules of sex-crime evidence rely on assumptions about recidivism. Turns out, however, that sex offenders are at a lower risk of general recidivism. “Among violent offenders, the annual recidivism rates of prisoners sentenced for homicide or sexual assault were lower than those sentenced for assault or robbery across the 5-year period.” 

  For this intriguing DOJ study on recidivism, see report here. 

Image of Judge N.R. Smith from https://www.youtube.com/watch?v=NsL1lZjj_vY

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

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Case o' The Week: Ninth Shrugs, and Swallows Questionable Beers - Ruvalcaba and Explicit Reliability Findings for Federal Experts

 Under Daubert the Court of Appeals acts as a gatekeeper that evaluates the reliability and admissibility of the testimony of expert witnesses in federal court.

   

  (Not a typo).

United States v. Ruvalcaba-Garcia, 2019 WL 2063373 (9th Cir. May 10, 2019), decision available here.

Players: Per curiam decision with Judges Graber and Bybee, and District Judge Harpool. 

  Admirable advocacy by Ass’t Fed. Defender Kara Hartzler, Federal Defenders of San Diego, Inc.   

Facts: Ruvalcaba-Garcia was charged with illegal reentry, based on a 2015 removal order. Id. at *1. His trial defense was that he was not the person removed in ’15. Id. The government introduced a 2015 “Verification of Removal” form, that had a signature, a photograph, and a fingerprint of the removed person. Id.

  FBI fingerprint “expert” David Beers testified for the government. On cross, he conceded that he had not taken continuing education courses in fingerprint analysis, admitted that he was not a member of two important working groups for fingerprint “experts,” and revealed that he did not strictly follow the “ACE-V” method of analysis. Id. at *2. The defense objected to the admission of Beers as an expert: that objection was overruled, but there was no express finding of reliability of the expert’s testimony. Id.

  Beers testified, identified the 2015 print as Ruvalcaba’s, and the jury hung.

  On retrial, Beers went through a similar drill, the defense objection was again overruled, and Ruvalcaba-Garcia was convicted. Id. at *3.   

Issue(s): “Ruvalcaba argues on appeal that the district court abused its discretion by admitting the expert’s testimony without first finding it ‘relevant’ and ‘reliable.’ Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993); see Fed. R. Evid. 702.” Id. at *1.

  “The issue here is ‘reliability,’ which requires that the expert’s testimony have a reliable basis in the knowledge and experience of the relevant discipline. . . . The district court must assess whether the reasoning or methodology underlying the testimony is scientifically valid” and “properly can be applied to the facts in issue, . . . with the goal of ensuring that the expert employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field, . . . The test ‘is not the correctness of the expert’s conclusions but the soundness of his methodology,’ and when an expert meets the threshold established by Rule 702, the expert may testify and the fact finder decides how much weight to give that testimony.” Id. at *3 (internal citations and quotations omitted).

Held: “We agree that the district court’s failure to make these gateway determinations was an abuse of discretion.” Id. at *1. 

  “Here, the district court abused its discretion by failing to make any findings regarding the reliability of Beers’s expert testimony and instead delegating that issue to the jury.” Id. at *4. “To satisfy its ‘gatekeeping’ duty” under Daubert, the court must make an explicit reliability finding. . . . The district court’s failure to make an explicit reliability finding before admitting Beers’s expert testimony in this case constituted an abuse of discretion.” Id. at *4 (internal citations and quotations omitted; emphasis added).

Of Note: Ruvalcaba is a thoughtful analysis of the district court’s gatekeeping responsibilities, when considering the admission or exclusion of expert witnesses. 

  Unfortunately for Ruvalcaba, the Ninth then denies relief, after a harmless error analysis. See id. at *5.

  Note the frustrating “findings” by the Ninth in the context of this harmless error review – the panel marches through cold-record gatekeeping and concludes that Beers' "expertise" was good enough for Daubert. Id. at *6; see also "For Further Reading" below.  

How to Use: The defense objected – repeatedly – to Beers’ testimony, over two trials. 

  Despite these objections below, the government argued on appeal that because the defense did not specifically make a “gatekeeping” objection, the review should be for plain error (instead of harmless error). Id. at 3 & *2. 

  The Ninth avoided that question, but let footnote 2 be a warning: expert objections should be specific. Objections should include the magic FRE 702 litany of reliability, relevance, and the court’s gatekeeping function.

For Further Reading: In Ruvalcaba, the Ninth acted as a second Daubert gatekeeper. That procedure is controversial – at least five active Ninth jurists think remand and a post-hoc Daubert hearing would be appropriate when this problem arises. 

  For an accessible piece on the en banc Barabin case that created this odd appellate approach (and that prompted a major en banc split), see article here.  

Image of “Gatekeeper” from https://www.chronicle.com/blogs/linguafranca/2012/11/26/no-more-gatekeeping/

Steven Kalar, Federal Public Defender Northern District of California. Website 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: Gov't Adores our Opened Doors - Kootswatewa and Hearsay on Rebuttal

  Opened doors can be scary.

United States v. Kootswatewa, 2018 WL 1439610 (9th Cir. Mar. 23, 2018), decision available here.

Players: Decision by Judge Watford, joined by Judge Wallace and visiting DJ Sands. Hard fought appeal by D. Az. AFPD Michael Burke.

Facts: Kootswatewa was charged with sexual abuse of a child. Id. at 2. The child, K.C., was a developmentally disabled 11 year old girl that lived on the same reservation as the defendant. Id. After the assault, K.C. made statements to a police officer. Id.

  At trial, the defense questioned K.C.’s reliability, describing her motives to fabricate the story and exploring coaching by K.C.’s mother. Id. at *4. In the government’s rebuttal case, the court allowed testimony from the officer about statements K.C. had made to him shortly after the abuse. Id. at *4.

  Kootswatewa was convicted and sentenced to forty years. Id. at *2.

Issue(s): “We turn . . . to Kootswatewa’s objection to the admission of the officer’s testimony concerning the statements K.C. made to him shortly after the abuse occurred. . . . The district court admitted K.C.’s statements under Rule 801(d)(1)(B)(i), which renders admissible a prior statement that is consistent with the declarant’s in-court testimony and is offered ‘to rebut an express or implied charge that the declarant recently fabricated [her testimony] or acted from a recent improper influence or motive in so testifying.’” Id. at *4, quoting Fed.R. Evid. 801(d)(1)(B)(i).

Held: “The district court properly exercised its discretion in admitting K.C.’s statements to the officer.” Id. at *4. “K.C.’s prior statements to the officer were admissible to rebut defense counsel’s suggestion that K.C.’s in-court testimony had been tainted by a ‘recent improper influence or motive’ – namely, K.C.’s mother alleged coaching.” Id. at *4.

Of Note: Kootswatewa is a disappointing, but important, decision on the admission of hearsay testimony under Federal Rule of Evidence 801(d)(1)(B)(i). Appellate counsel admirably slugged away at each requirement of this “rebuttal” hearsay evidence, and the Ninth addresses the rule in depth.

  First, to be admissible, this evidence has to have occurred before the alleged motive to fabricate arose. Id. at *4. Judge Watford finds that requirement met here, because the statements to the officer happened before K.C. spoke to her mother.

  Kootswatewa also argued that the defense had a different theory on K.C.’s motive to lie: that she had gone where she was told not to go by her mother, and fabricated the assault to cover for herself and avoid discipline. Id. at *4. That motive to lie pre-dated the statements to the officer, so why were the cop-statements admissible? Judge Watford concludes that prior statements for rebuttal don’t have to address all of the defense theories: it is enough that the statements properly went to one of them (here, the theory that K.C. was coached). Id. at *5.

  “Opening the door” is often a dangerous possibility for the defense – and here, the Ninth allowed a barn door to be opened with these statements to the officer. Study Kootswatewa when weighing the risks and dangers of attacking the credibility of government witnesses, and mulling the government’s rebuttal case.

How to Use: Maybe there was error, here: facts in K.C.’s statements to the cop, and her testimony at trial, were not consistent. Id. at *5. The Ninth looks at the evidence in this case, and concludes that “any error in admitting the statement was harmless.” Id.

  This passage of Kootswatewa is worth a close read – inconsistent facts in the pretrial statement and the trial testimony may help keep 801(d)(1)(B)(i) evidence out of your trial.

                                        

For Further Reading: In 2016, Professor Kilkpatrick forcefully warned that amendments to FRE 801 would improperly expand the use of prior statements as substantive evidence in rebuttal. See Kirkpatrick, Laird C., Prior Consistent Statements: The Dangers of Misinterpreting Recently Amended Fre 801(D)(1)(B)* (2016). 24 Trial Evidence 12 2016; GWU Law School Public Law Research Paper No. 2016-40; GWU Legal Studies Research Paper No. 2016-40. Available at SSRN: http://ssrn.com/abstract=2836114

  Read this short piece, and read Kootswatewa: the Prof was, sadly, spot on.

Image of doors from https://www.gizmodo.com.au/2017/08/i-survived-a-trip-through-the-neibolt-street-house-from-stephen-kings-it/

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

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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: Never Made it to the Grand, But Throw Before Petit - Loftis, Uncharged Conduct, and FRE 404(b)

He’s making a list,

He’s checking it twice,

Now naughty’s admissible,

When fraudsters entice.

 United States v. Loftis, 2016 WL 7176657(9th Cir. Dec. 9, 2016), decision available here.

Left to right: The Hon. Judges Fisher, W. Fletcher, and N.R. Smith

Players:  Decision by Judge Fisher, joined by Judges W. Fletcher and N.R. Smith. Hard fought appeal by Montana AFPD John Rhodes.

Facts: Loftis is charged with wire fraud, for allegedly victimizing investors through falserepresentations. Id. at *1. Though the government posits a broad scheme, spanning six years and several states, charged transactions involved just three investors and all took place in Montana. Id.

  Before trial it became clear that the government intended to introduce evidence of crimes beyond the charged offenses. Loftis thus moved in limine for exclusion of uncharged conduct. Id.

  The district court granted the motion in part, finding some evidence excludable under FRE 404(b). While “[t]he extent to which the district court properly applied [the evidentiary] principles is not clear,” id. at *4, the court held that some evidence would be excluded under FRE 404(b) unless the government showed the uncharged conduct evidence was “inextricably intertwined” with the Montana scheme. Id. at *1.

  The government filed an interlocutory appeal; trial was stayed. Id.  

Issue(s): Did the district court properly exclude evidence of uncharged offenses, absent a showing from the government that the crimes were inextricably intertwined with the scheme employed in Montana?

Held: 1. FRE 404(b) and “other” acts: “We hold the evidence of uncharged transactions is not evidence of ‘other’ crimes or acts under Rule 404(b), because it is evidence of part of the crime charged in the indictment—the overall scheme to defraud.” Id. at *2 (emphasis in original, footnote omitted). ‘Because the evidence from other investors is charged conduct, the government is not required to rely on the inextricably intertwined doctrine to avoid Rule 404(b).” Id. at *4.

  2. “Inextricably intertwined:” “[However,] . . . even if the uncharged transactions at issue were not part of the crime charged, they would not be subject to exclusion under Rule 404(b) because they are ‘part of the same transaction’ as the charged transactions. The inextricably intertwined doctrine, therefore, affords a second basis for concluding the evidence should not be treated as ‘other’ crimes or ‘other’ acts evidence under Rule 404(b).” Id.

Of Note: While this is a disappointing outcome, Judge Fisher does take pains to emphasize why the evidence is admissible. Wire fraud’s first element requires the government to prove “the existence of a scheme to defraud.” Id. at *3. Hence, evidence from uncharged crimes is admissible as proof of that first element – it is not, by definition, “other crimes” and is not precluded under FRE 404(b). Id.

 This doesn’t mean that in a fraud case the government can throw everything at the barn to see what sticks – “these holdings apply only when the charged and uncharged transactions can fairly be characterized as parts of a single fraudulent scheme.” Id. at *4 (emphasis added).

  Put differently, when our creative clients have other, different scams running, those crimes fall outside of Loftis – they don’t bear on the first element of the charged wire (or mail) fraud.

How to Use: Fish gotta swim, birds gotta fly, AUSAs gotta overprove their case: it’s the nature of things.

  What are you supposed to do when a gung-ho prosecutor invokes Loftis and smuggles in a mountain of inflammatory junk to “prove” a fraudulent scheme (a scheme that is often painfully clear from the charged offenses?) Counter-invoke Judge Fisher’s explicit caveat: Loftis doesn’t address exclusion of this evidence on other bases, such as FRE 403. Id. at *4. (And remind the DJ that excluding cumulative evidence will shave weeks off an interminable fraud trial . . . .)  

                                               

For Further Reading: What about snitches running their own “uncharged conduct” schemes? Under Loftis, aren’t their shenanigans evidence of fraud crimes (and hence their motive for falsely incriminating your poor client to earn that 5K break?) For an interesting rift on this theme, see Jessica Broderick, Reverse 404(b) Evidence: Exploring Standards When Defendants Want to Introduce Other Bad Acts of Third Parties, at 79 U. Colo. L. Rev. 587 (2008), available here. 

Image of the Honorable Judges Fisher, W. Fletcher, and NR Smith (the Loftis panel) from http://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000010315

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

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