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: If not found we can rely, reverse conviction and re-try! - Valencia-Lopez, FRE 702, Daubert, and gov't "expert" reliability

Pick a peck of pot and peppers . . . .

 

and try the case again.

 United States v. Valencia-Lopez, 2020 WL 4814139 (9th Cir. Aug. 19, 2020), decision available here.

Players: Decision by Judge Bennett, joined by Judge Hawkins. Dissent by Judge Owens. 

 Admirable win and very important FRE 702 victory for D. Arizona AFPD J. Ryan Moore.

Facts: Valencia-Lopez was stopped at the border when he drove a commercial truck into the US. Id. at *1. Hidden among the cargo of bell peppers was 6,000 kilos of marijuana. Id. Valencia-Lopez explained that he was seized at gunpoint in Mexico, told to drive (re-loaded) truck across the border, and that he and his family would be killed if he did not comply. Id. at *2. 

  The government noticed ICE “Expert” Hall for trial, who was provisionally allowed over the defense’s pretrial objection. Id. 

  At trial, the district court denied the defense’s renewed objection, and refused defense voire dire. Id. The court made no reliability findings. ICE “Expert” Hall testified that the likelihood that a drug trafficking organization would trust a large load to a threatened driver was “[a]lmost nil, almost none.” Id. 

  Valenicia-Lopez also testified, and was convicted. Id. at *3.

 Issue(s): “Valencia-Lopez argues that the district court abused its discretion by admitting Agent Hall's testimony without adequately performing its gatekeeping role under Daubert and [FRE] 702. . . . Valencia-Lopez does not challenge the district court’s finding that Agent Hall's testimony was relevant. We thus look only to whether the district court appropriately determined that the testimony was reliable.” Id.

 Held: “It did not.” Id. at *4.

  “The issue is not whether Agent Hall had knowledge and experience sufficient to allow him to testify as an expert on the modus operandi of drug cartels. He did. Nor is the issue whether he had sufficient ‘background for his opinions.’ Rather, the issue is whether he provided a reliable basis for his opinion that the likelihood of drug cartels using coerced couriers is ‘[a]lmost nil, almost none.’ As explained above, he did not.” Id. at *6.

  “We . . . vacate Valencia-Lopez's convictions and remand for a new trial.” Id. at *8.

 Of Note: Valencia-Lopez is an extraordinary “experts” decision. The opinion confirms what we’ve been shouting since the Daubert Trilogy hit: “qualifications ain’t reliability.” 

  In fact, Judge Bennett goes so far as to emphasize that this core reliability finding is arguably more important when dealing with cop experts, such as this case: “Daubert and Kumho Tire may be harder to apply when the expert testimony is ‘experience-based’ rather than ‘science-based.’ But any such difficulty cannot simply lead to a ‘that goes to weight, not admissibility’ default, as here. Indeed, we see a strong argument that reliability becomes more, not less, important when the ‘experience based’ expert opinion is perhaps not subject to routine testing, error rate, or peer review type analysis, like science-based expert testimony. The Supreme Court has made it abundantly clear that reliability is the lynchpin—the flexibility afforded to the gatekeeper goes to how to determine reliability, not whether to determine reliability.” Id. at *4.

  Valencia-Lopez is a thoughtful, well-supported opinion, and one of the most important FRE 702 decisions in years: a must read.

 How to Use: Judge Bennett gives a big thumbs-up to Daubert voir dire at trial. Id. at *5 & n.6. The Ninth doesn’t (yet) hold whether a district court must hold an evidentiary hearing or permit voir dire. Id. The Court does, however, give a hearty nod of approval to trial voir dire as “a recommended method for the district court to conduct a reliability determination.” Id. 

  D.J.’s routinely dodge pretrial Daubert pretrial evidentiary hearings or trial voir dire of government “experts.” Use Valencia-Lopez to advocate for these critical gatekeeping procedures.                                           

For Further Reading: It was a week of very different memos, in Washington D.C.

Last week, thirty-two black, D.C. AUSAs signed a ten-page memo sent to U.S. Attorney Michael Sherwin, seeking changes to increase fairness and minimize nonlegal influences and biases. See Washington Post Article here. 

By contrast, a very different OMB memo last week conveys President Trump’s direction to federal agencies to “cease and desist” funding for certain types of race and diversity training. See ABC news article here. 

  

Image of bell peppers and marijuana from https://wayofleaf.com/cannabis/101/is-cannabis-a-vegetable-or-fruit

 

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

 

 

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: 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: 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: A Western Gunn battle -- Ornelas and Mens Rea for Federal Attempted Robbery

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

Mr. Jesus Eder Moreno Ornelas

   

 (No one badly hurt, thankfully).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

                                           

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

The Hon. Judge Ryan D. Nelson

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

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

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

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

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

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Case o' The Week: Ninth Tuts Hut Scuttlebutt - Wells and FRE 404(b) Evidence

What happens on Attu, stays on Attu . . .

United States v. James Michael Wells, 2017 WL 6459199 (9th Cir. Dec. 19, 2017), decision available here.

Attu Island, Alaska

Ed. note: A slow week for decisions is a good opportunity to revisit the Ninth's recent Wells decision, for its analysis of FRE 404(b). 

Players: Decision by visiting DJ Walter, joined by Judges Tashima and Nguyen. Concurrence by Judge Nguyen. Partial concurrence and dissent by Judge Tashima. 

  Impressive victory for former CD Cal AFPD Davina Chen.

Facts: Wells worked at an Alaskan Coast Guard facility on Kodiak Island. Id. at *2. In April 2012, two of Wells’ co-workers were found, murdered, at the facility.

  On the morning of the murders, Wells had left voicemails on the victims’ phones, explaining he’d had tire problems. Id. Surveillance footage, a history of workplace disputes, and suspicions about the damaged tire and alibi eventually lead to Wells’ indictment for the murders.

  At trial, the government introduced testimony that Wells had disobeyed a direct order from a supervisor in 2003, and had hauled back a fiberglass hut that was having problems, from Attu, a remote island on the Aleutian Chain. Id. at *20.

  The government argued that this 2003 “hut” episode was the best example of Wells’ “narcissistic traits” and was “the height of ego” – consistent with personality-profile testimony the government’s “expert” had offered. Id. The court found this “hut” episode was “inextricably intertwined” with the charged events, “relevant to motive,” and “help paint a picture of the work environment.” Id.

  Wells was convicted.

Issue(s): “Wells challenges a significant amount of testimony as impermissible character and other act evidence, under Federal Rules of Evidence 404(a) and 404(b), respectively. . . .” Id. at *17.

Held: “For the reasons that follow, we find that the district court erred in admitting the 2003 incident, as it was neither inextricably intertwined nor permissible motive evidence under Rule 404(b)(2).” Id. at *20.

  “[United States v.] Dorsey, [677 F.3d 944 (9th Cir. 2012)], illuminates the difference between finding that evidence is inextricably intertwined, and therefore not subject to Rule 404(b) analysis, and finding that evidence falls under one of Rule 404(b)’s permissible uses, namely to prove motive. In determining whether particular evidence is necessary to the prosecution's “coherent and comprehensible story,” we ask whether the evidence bears directly on the charged crime. 677 F.3d at 952 (internal quotation marks omitted). “There must be a sufficient contextual or substantive connection between the proffered evidence and the alleged crime to justify exempting the evidence from the strictures of Rule 404(b).” . . . Here, none of the other acts evidence bears ‘directly’ on the charged crimes, or has the requisite “contextual or substantive connection” to be categorized as inextricably intertwined. It was error for the district court to admit it as such . . . (second citation omitted).” Id. at *21.

Of Note: As noted in an earlier COTW, this is a dense decision with many valuable nuggets to mine. Not discussed here is another great holding, finding a government shrink’s testimony about Wells’ personality “profile” was erroneous. Id. at *16. That expert error, combined with this FRE 404(b) error, earned a reversal on a double-homicide conviction.

  An important decision well worth a close read, on many fronts.

How to Use: Wells is a welcome limitation on that dangerously mushy “inextricably intertwined” FRE 404(b) theory used to smuggle in a defendant’s prior bad acts.

  The decision also rejects the government’s reliance on this workplace dispute to show Wells’ motive (another 404(b) theory of admission). There was “no logical basis,” the Ninth observes, to explain how a beef with a different supervisor, bearing no relation to either victim, from a decade before the murders, showed Wells’ intent for these homicides. Id. at *21. Instead, the government’s “motive theory was couched in the broadest possible terms in order to sidestep evidentiary hurdles.” Id.

  Turn to the great language in Wells to fight the government’s inevitable blunderbuss barrage of FRE 404(b) theories.

For Further Reading: Ten Ninth judges appointed by Democrats (out of 29 authorized judgeships), are currently eligible for senior status.

  For a fascinating (albeit slightly right-leaning) analysis of President Trump’s potential impact on the Ninth (and other federal courts of appeal), see the National Review article here. 

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Steven Kalar, Federal Public Defender, Northern District of California. 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.

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

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