Case o' The Week: The First v. The Sixth in the Ninth - Carpenter and public disclosure of defense duress proffers

  Ninth mulls Seal balancing.

United States v. Carpenter, 2019 WL 2049818 (9th Cir. May 9, 2019), decision available here.

Players: Decision by Judge M. Smith, joined by Judge Hawkins and DJ Vratil.  

Facts: Carpenter and her co-D’s kidnapped Angel Gonzalez. See generally article here.

  Gonzalez was suspected of stealing marijuana from a Mexican cartel: the plan was to give him up in exchange for payment. Id. at *1.

   They hit Gonzalez with a cattle prod, duct-taped his hands and feet, and stashed him in a car trunk. Id. at *2. Carpenter drove Gonzalez across the border, but in Mexico Gonzalez managed to escape. Id. Carpenter ditched the car and was arrested when she tried to reenter the States. Id.

  Before the kidnapping trial, Carpenter submitted an offer of proof on her duress defense (based on her fear of the Mexican cartel). Id. The court refused to seal her duress offer of proof, but allowed the defense at trial. Id. Carpenter was convicted. Id.  

Issue(s): “We consider . . . Carpenter’s claim that the district court

abused its discretion in denying her motion to seal her duress defense proffer . . . .” Id. “Carpenter laments being forced to have ‘preview[ed] all of the evidence and all of her own testimony supporting her duress defense,’ and argues that the public disclosure was unconstitutional.” Id. at *5.

Held: “Even though we have long required that defendants proffer evidence of their duress defense, we have never held—nor indicated—that these proffers are entitled to secrecy or additional confidentiality. Instead, our early cases demonstrate that courts often dealt with the threshold inquiry of the prima facie showing through unsealed motions in limine. . . . Open court offers of proof were also utilized . . . .” Id. at *4.

  “The district court considered Carpenter’s concerns that the disclosure of her evidence to the government would be unfair and would conflict with the ethical rules that counsel against revealing information related to the representation of client, and found that she had not stated a compelling reason to seal the proffer. We agree with the district court.” Id. at *5.

  “[O]ur conclusion today does not establish a compulsory rule that defendants must disclose their testimony to present a duress defense. The public’s common law right of access to these offers of proof is a qualified right—one that a defendant can overcome by making the requisite showing. [I] n the balancing test the district court is required to consider the competing rights of the defendant and the public. We hold today only that the common law right of access attaches to pre-trial offers of proof for a duress defense, and that because Carpenter failed to provide a compelling reason to overcome this presumptive right of access, the district court did not abuse its discretion in denying Carpenter’s motion to seal her proffer.” Id. (internal citations and quotations omitted).

Of Note: This disappointing duress decision is slightly offset with a good holding on evidence of drug use. Id. at *7. Judge Smith explains that evidence of a co-D’s meth use during the kidnapping was inadmissible “other acts” evidence, that should not have survived FRE 403 balancing. Id. at *7-*8 (although this was ultimately held to be harmless error). Id. at *8.

  A good FRE 404(b) / 403 decision for our clients who use, in the course of their other mischief.

How to Use: Unbelievably, the AUSAs did not bother to read Carpenter’s duress proffer! Id. at *3. That remarkable fact colored the Court’s new rule. Id. at *5. Arguably this new duress-disclosure rule should thus be limited to cases where prosecutors agree not to read the proffer. The Court emphasizes that this disclosure is a balancing test, not a “compulsory rule that defendants must disclose their testimony to present a duress defense.” Id. at *5.

  Invoke the Sixth Amendment and fight to seal duress proffers – read properly, Carpenter’s holding should be a narrow rule indeed.

Mr. Daniel Collins

                                               

For Further Reading: Mr. Daniel Collins, President Trump’s sixth confirmed Ninth nominee, joined the Circuit last week. See article here. 

Image of Daniel Collins from https://www.sfchronicle.com/news/article/Trump-s-sixth-appointee-to-Ninth-U-S-Circuit-13867904.php

Image of balancing (sea lion, to be accurate) from https://www.quora.com/Are-there-seals-pinnipeds-that-are-intelligent-and-how-smart-are-they

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

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

 As you SODDI, so shall you reap.

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

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

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

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

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

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

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

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

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

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

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

                                               

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

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

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

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

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

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Case o' The Week: 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. 

Image of Attu Island from https://i.pinimg.com/originals/f4/9d/4c/f49d4cd05431305559d319fb26d8d45a.jpg

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: A Touch of Evil on Ninth's Mind - Hernandez and Mens Rea + Actus Reus Match

 Bad mind, wrong crime?

 No time.

 United States v. Lucio Hernandez, 859 F.3d 817(9th Cir. June 15, 2017), decision available here.

Players: Per curiam decision with Judges Shroeder and Bybee, and Chief D.J. William Smith. 

  Admirable win for Deputy Federal Public Defender Alexandra Yates, Central District of California.

Facts: Hernandez drove from Arizona to California to transfer title on a car. Id. at 819. In Arizona, he (legally) purchased multiple weapons at a gun show, without any waiting period (things prohibited in California). Id. He listed Arizona as his current residence on the ATF form, though he lived in California. Id. 

  When the guns were later found by California cops in the possession of others, the ATF got a search warrant. Id. No Arizona guns were found in the search: some had been stolen, Hernandez explained, others buried in the desert. Id. 

  He was indicted with illegal transportation of firearms into his state of residence, in violation of 18 U.S.C. § 922(a)(3). Id. at 820. 

  At the government’s urging, the court gave an instruction based on Bryan, 524 U.S. 184 (1998) that may have permitted the jury to find Hernandez guilty “even if he did not know that his act of transporting guns into California was illegal.” Id. “The court rejected an instruction that would have connected the required willfulness to the act of transporting the guns into California.” Id. 

  During trial, the government introduced evidence about “straw purchasers,” and revealed several of the guns were recovered from others by police. Id. The government argued this evidence showed Hernandez’s “bad purpose;”the jury found Hernandez guilty.

Issue(s): “In order to convict Hernandez of this crime, the government was required to prove that his violation was ‘willful,’ i.e., that the defendant acted with knowledge that the charged conduct (transporting the firearms into his state of residence) was unlawful. Hernandez argues on appeal that the evidence was insufficient to prove that the specifically charged conduct was done ‘willfully.’ Moreover, Hernandez contends that because the district court allowed the government to introduce evidence of other (uncharged) criminal acts allegedly committed by Hernandez in connection with the firearms at issue, combined with a broad interpretation of the willfulness instruction contemplated by Bryan . . . ., the jury may have convicted him without finding the requisite level of culpability.” Id. at 819.

Held: “[W]e agree. We . . . reverse and remand for a new trial.” Id. at 819. “We conclude that, given the district court's broad jury instruction and the government’s theory of the case, it is not clear beyond a reasonable doubt that the jury actually found that Hernandez had willfully committed the charged conduct.” Id. at 821. “We hold that the broad jury instruction, combined with the evidence of the commission of later crimes and the government's argument to the jury, resulted in significant prejudice to Hernandez.” Id. at 824.

Of Note: This prosecution went awry when the district court rejected a defense instruction that would have required Hernandez to know his conduct was unlawful, and that he intended to disobey the law when he transported firearms purchased in Arizona to California. Id. at 823. Without that “concurrence of an evil-meaning mind with an evil-doing hand”, id. at 823, the jury could have convicted Hernandez for being an arms trafficker. As Hernandez helpfully observes, “It is a longstanding precept of the common law that a person cannot be convicted of one crime on the basis of an intent to commit another.” Id. at 823. 

  A rare and welcome mens rea win – particularly involving the comparatively low “willfulness” mental state.  

How to Use: Remember back in CrimLaw when we were taught that a crime required a match between the mens rea and charged actus reus? 

  Sometimes it feels AUSAs skipped that class. 

  Hernandez is a clean and emphatic endorsement of the proposition that the government has to prove more than intent to commit some crime or another -- there has to be intent to commit the crime charged. Id. at 823. Fair to assume Hernandez was up to various unlawful shenanigans with guns, which makes the Ninth's strict focus on the charged offense particularly potent (and per curiam to boot!). 

                                               

For Further Reading: After almost eighteen years on the Ninth, the Honorable Judge Richard Tallman is taking senior status. See Press Release here. 

  Judge Tallman replaced Judge Betty Fletcher, and will himself be replaced by one of the (now-five) Trump nominees for the Ninth.

  When will those shoes drop? Depends if Dem Senators are feeling blue (slips).  See article on nominations here.  

Image of “evil hand” t-shirt from https://rlv.zcache.com/warning_i_have_an_evil_hand_that_has_a_mind_t_shirt-recd06010b5eb4765937db6a9aadf3b81_k2gr0_324.jpg

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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