Case o' The Week: A Snitch in Time? "No," Says Nine - Obagi and Brady / Giglio Remedies

  Gov’t snitch lies? 

The Hon. Judge John Owens

  Case retries.

United States v. Obagi, 2020 WL 4033849 (9th Cir. July 17, 2020), decision available here.

 Players: Decision by Judge Owens, joined by D.J. Molloy. Dissent by Judge Bumatay. Big win for former CD Cal AFPDs Craig Wilke and Davina Chen.  

 Facts: Obagi and his co-D were tried on charges related to mortgage fraud. Id. at *1. The government relied heavily on cooperators. Id. at *2. To bolster its case, the government called witness “Saad,” who testified against the defendants. Saad assured the jury that she had received no consideration from the government. Id. The AUSA “relied heavily” on Saad’s confirming testimony in closing, as a non-compromised and corroborating government witness. Id.

   A different AUSA was watching the closing arguments. He informed the Obagi prosecutor that Saad was actually cooperating, and had received immunity in a separate mortgage investigation. Id. at *3.

   The court discussed options: a mistrial, recalling Saad to be crossed, or an instruction. Id.

   The court decided on a curative jury instruction, and both co-D’s were convicted. Id.  

 Issue(s): Because the details of Saad’s cooperation was Brady evidence, was a curative instruction given after the government’s closing argument a sufficient remedy?

 Held: “Had the information impeaching Saad been disclosed prior to the close of evidence, this presumption and the normal rules concerning curative instructions likely would govern here.” Id. at *4.

  “Given the difficulty the jury faced in reaching a verdict, we cannot say with confidence that the undisclosed impeachment did not affect the jury’s judgment. Nor can we conclude that the district court’s instruction fully cured the prejudice that resulted from the government’s Brady violation.” Id. at *5.

  “Because there is a reasonable likelihood that the undisclosed evidence impeaching Saad could have affected the judgment of the jury, we are compelled to reverse the convictions and remand the case to the district court for further proceedings.” Id.

Of Note: It is unfathomable: how did CD Cal AUSAs not figure out that were calling a (lying) cooperator, and affirmatively assure the jury that she was not a cooperator, when the snitch had in fact been given a no-pros deal in a mortgage fraud case (apparently in the same U.S. Attorney’s office?) This is particularly outrageous in California, where ethical rules require prosecutors to affirmatively hunt down and disclose such information. See Cal. R. Prof. Conduct 3.8, available here. 

   In N.D. Cal, the vast majority of D.J.’s have granted Brady / 3.8 disclosure orders, setting deadlines for disclosure before trial. If such a pretrial order had been in place in Obagi, the government would have been more careful when checking on its own witnesses – and toothier remedies would have been available when this violation came to light. Obagi illustrates yet again why no case should go to trial in California, without a stout Brady / Rule 3.8 disclosure cut-off order in place.

 How to Use: Judge Bumatay’s dissent ably highlights the value of this decision for the defense. See id. at *5 (Bumatay, J. dissenting). He complains that the opinion essentially means de facto reversal anytime there is a Brady disclosure after closing arguments. Id. Judge Bumatay is also irked by the fact that the trial defense counsel declined the district court’s offers to recall the cooperator, Saad, to the witness stand, or to revisit closing arguments – yet the defendants still prevail on appeal. Id. at *6.

  Arguing for the broad scope of Obagi’s Brady holding? Start with the dissent’s helpful outline supporting that proposition.                                               

For Further Reading: In a grim milestone, last week the first COVID-19 death was reported out of Santa Rita Jail, when Deputy Oscar Rocha succumbed to the disease. See article here. 

  Over 100 inmates have now tested positive for COVID-19 at the jail. Though ninety-three of the inmates are deemed “asymptomatic,” in a deeply troubling interview, one allegedly “asymptomatic” inmate in the jail reports what that designation really means (or rather, what it doesn’t mean). See Infected Santa Rita inmate describes jail life amid COVID-19 outbreak, available here. 

 

 

Image of the Honorable Judge John Owens from https://www.law.com/therecorder/almID/1202638438346/Obamas+Judge+Picks+Advance+in+PostFilibuster+Senate%3Fmcode=1202617072607&curindex=4/?germane=1202638438346&id=1202625862932

 

Graph of comparative infection rates by Chief Assistant Candis Mitchell, available at: https://www.ndcalfpd.org/

 

 

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

 

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Case o' The Week: On Dueling Epidemics - Garrison and Brady / Giglio Violations

  What happens when the epidemic of opioid addiction meets the epidemic of  Brady violations?

United States v. Garrison, 2018 WL 1938523 (9th Cir. Apr. 25, 2018), decision available here.

Players: Decision by Judge Gould, joined by Judges Murguia and Chief District Judge Christensen.

Facts: Garrison was a physician’s assistant. Id. at *1. His clinic used “patient recruiters” to bring in homeless people and generate OxyContin. Id. at *2. “Patients” were relieved of pills, and the Oxy sold illegally. Id.

  Garrison went to trial with others charged with a conspiracy to illegally distribute drugs. Id. “Before and during trial, the government made grave mistakes in its prosecution of the case by repeatedly failing to timely disclose information to the defense, as was required by law.” Id. at *3. For example, two government cooperators helped a third witness fabricate a false medical report and submit it to a probation officer and a judge. Though the government knew, it didn’t disclose notes of this conduct to the defense. Id.

  Another violation was a cooperating co-D that was given a “special” deal, that allowed her to continue to work in the medical field. This unusual deal wasn’t disclosed to the defense (or court) even after the cooperator testified on direct. Id.

  The court gave several curative instructions, but denied Garrison’s motion for dismissal. Id. at *4.

  Because of still more problems surrounding JDA breaches, the government dismissed charges against the co-d’s. Garrison was left with a guilty verdict and a 10-year sentence. Id. at *5, *6.  

Issue(s): [Garrison] “contends that because the government repeatedly failed to timely disclose evidence revealing weaknesses in its case, there is ‘little doubt’ that, if that evidence been timely disclosed, Garrison would have been acquitted.” Id. at *6.

Held: “We disagree . . . .” Id. “There is no dispute here that the government failed to comply with the requirements of Brady and Giglio when it disclosed evidence late regarding [the cooperators] falsifying records for [another witness], and failed to timely disclose the side deal with [one of the cooperators]. All of the late disclosed evidence, however, was given to the jury. And the district court gave a jury instruction telling the jury that the government had disclosed evidence late and that the jury could draw adverse inferences from that late disclosure. From the instruction it is clear that the jury was empowered to exonerate Garrison because of the government's misconduct, if it chose to do so. But the jury instead found Garrison guilty. In light of the extensive evidence against Garrison, we cannot conclude that any prejudice stemmed from the late disclosure.” Id.

Of Note: The first paragraphs of Garrison read like a sentencing judge’s rebuke on the dangers of opioids and the responsibilities of medical professionals. Id. at *1. This early exegesis on the “epic crisis of deadly opioid abuse and overuse,” id., means the die is cast: there will be no Brady reversal of this Oxy conviction.

  A troubling decision, Garrison reveals deep, repeated discovery violations in a CD Cal prosecution. Yet there is no outrage expressed; no demand for training or reform.

  Five years ago, five jurists correctly opined: “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.” United States v. Olsen, 737 F.3d 625, 626 (9th Cir. 2013) (dissenting from denial of rehearing en banc).   

  Three of those jurists are now gone. The epidemic, however, remains.

How to Use: Tucked into Garrison is an interesting Joint Defense Agreement (“JDA”) discussion. Id. at *3. Counsel for one defendant in a JDA disclosed protected information to the government. Id. That JDA breach and disclosure was part of the reason for dismissals for two co-Ds. Id.

  This discussion in Garrison is worth a very close read, if you are mulling a JDA (and an even closer read if a JDA participant has breached your deal).

                                               

For Further Reading: A famously enlightened analysis of meaningful pretrial Brady / Giglio obligations is United States v. Sudikoff, 36 F. Supp. 2d 1196, 1198-99 (C.D. Cal. 1999).  Sudikoff tackles our current federal discovery model, that illogically analyzes discovery obligations at trial through a retrospective appellate lens.

  Sudikoff’s author? The Honorable District Judge Dean Pregerson – the presiding judge in Garrison! 

  Read Sudikoff and Garrison together, for a potent and ironic illustration of the depth of our structural discovery problems. In the 1999 Sudikoff case, prescient Judge Pregerson was anticipating the exact problems that now plague the 2018 Garrison case. 

  The answer? Well, here in the Golden State, California Rule of Prof. Conduct 5-110 is a very promising start. Had Garrison been tried after 5-110's effective date, would these discovery violations trigger bar referrals for the AUSAs?

  A plain reading of the rule suggests, "yes."

Image of Oxycontin from https://www.cbsnews.com/news/purdue-oxycontin-maker-to-stop-promoting-drug-to-doctors-amid-opioid-epidemic/

Image of the Honorable Judge Dean Pregerson from http://www.receivers.org/recnews/ArticlePage.php?id=303&keywords= 

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

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Case o' The Week: A Potent prescription, for an epidemic -- Brady and Giglio Violations

“There is an epidemic of Brady violations abroad in this land. Only judges can put a stop to it.” United States v. Olsen, 2013 WL 6487376 (9th Cir. Dec. 10, 2013) (ord. denying reh'g en banc), (C.J. Kozinski, dissenting), decision available here.

Players: Three-judge panel decision by Senior DJ Friedman, joined by Judges Schroeder  (above left) and Gould. Dissent from denial of rehearing en banc by CJ Kozinski (above far left), joined by Judges Pregerson, Reinhardt, Thomas and Watford.

Facts: Olsen was an IT guy. At work he stashed printed materials on poisons and methods of revenge. 704 F.3d 1172, 1176 (9th Cir. 2013) (panel decision). Investigation also revealed test tubes and chemistry paraphernalia. Id. A Sheriff collected everything and sent it to a crime lab, where it was examined by forensic scientist Arnold Melnikoff. Id. Melnikoff found items associated with ricin, allergy pills, and other medicine. Melnikoff sent the material to the FBI, which confirmed ricin in the tubes and jars. Id. 
  At trial, Olsen conceded a strange interest in morbid things, but denied that he possessed ricin “for use as a weapon” in violation of 18 USC § 175. Id. at 1177. The AUSA argued that the presence of ricin in the allergy pills proved Olsen intended to deploy the chemical. Id. 

  Olsen was convicted; his conviction was upheld on appeal. Id. at 1178. 

  Olsen later discovered that Melnikoff had been under investigation for incompetence, that his work had resulted in a number of flawed convictions, and that in Olsen’s case he had mishandled the allergy pills in a way that could contaminate them with ricin. Id. at 1178-79. Though the trial AUSA was aware of the investigation, he did not follow up to learn the details of the Melnikoff inquiry – he thus did not disclose the full scope of this Brady / Giglio material. Id. at 1180-81. 

  Olsen filed a Brady habeas claim, the district court denied it, and the three-judge panel affirmed.

Issue(s): En banc review?

Held: Denied, over a potent dissent by CJ Kozinski. He writes, “The panel's ruling is not just wrong, it is dangerously broad, carrying far-reaching implications for the administration of criminal justice. It effectively announces that the prosecution need not produce exculpatory or impeaching evidence so long as it's possible the defendant would've been convicted anyway. This will send a clear signal to prosecutors that, when a case is close, it's best to hide evidence helpful to the defense, as there will be a fair chance reviewing courts will look the other way, as happened here.” Ord. Denying Reh’g En Banc, 2013 WL 6487376, *5 (Kozinski, C.J., dissenting).

Of Note: The Chief pens a cynical, cost-benefit analysis of why AUSAs choose not to investigate and disclose Brady: no platitudes, no bland assurances of DOJ’s integrity, no reassurances that it won’t happen again. 

  It is great. 

  Chief Judge Kozinski explains that the toothless penalties for Brady violations “create a serious moral hazard for those prosecutors who are more interested in winning a conviction than serving justice.” Id. He observes, “Some prosecutors don’t care about Brady because courts don’t make them care.” Id. at *6 (emphasis in original). In just a few pages the CJ explains the systemic reasons for the “epidemic” of Brady violations – and warns of the consequences, with convictions of the innocent and the erosion of the public’s trust in the justice system. Id. at *6-*7. “We must send prosecutors a clear message: Betray Brady, give short shrift to Giglio, and you will lose your ill-gotten conviction.” Id. at *8.

  This dissent is a must read and deserves heavy citation in Brady battles.

How to Use: Read it carefully, and the three-judge opinion does hide a gem for the defense to mine. The government argued that the impeachment material was irrelevant because the administrative decisionmaker reviewing Melnikoff’s fate had not yet made any findings before the trial. 

  AUSAs often argue the same nonsense in the context of citizen complaints made against police officers. The panel flatly and squarely rejects the government’s attempt to hide behind administrative findings: “This position is untenable under Brady, and the government’s tenacious adherence to it is mystifying.” 704 F.3d 1172, 1182. 
  Cite Olden when the federal government hides dirty cops behind (suspect) administrative findings (or lack of findings) by police misconduct review boards.

                                               

For Further Reading: Jimmy Ray Bromgard served 14 years for a crime he didn’t commit, before he was exonerated. 

  The forensic examiner at Bromgard’s trial, who testified under oath about a (non-existent) microscopic hair-matching procedure? 

   Albert Melnikoff. 

   See Innocence Project article here.

Image of Chief Judge Kozinski, and (former) Chief Judge Schroeder, from http://www.huffingtonpost.com/2013/12/11/blistering-9th-circuit-di_n_4426802.html

Steven Kalar, Federal Public Defender N.D. Cal.

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Case o' The Week: It Pays to Discover - Sedaghaty and Brady Violations

  An embarrassing Brady violation in a high profile and expensive

federal prosecution in the Pacific Northwest will surely send the message, and finally put DOJ on the path of real discovery reform.

   So we said after Ted Stevens.

  Déjà vu all over again. United States v. Pirouz Sedaghaty, 2013 WL 4490922 (9th Cir. Aug. 23, 2013), decision available here.

Players: Decision by Judge McKeown, joined by Judge Schroeder. Dissent by Judge Tallman. Big win by D. Oregon FPD Steven Wax.

Facts: The defendant, known as Pete Seda, lived in Ashland and was active in causes promoting the understanding of Islam. Id. Seda was the secretary of the U.S. branch of a Saudi aid organization, Al-Haramain. Id. at *3. The government suspected that Al-Haramain also funded mujahideen fighters in Chechnya. Id. at *3. At one point, foreign funds were put in Al-Haramain’s account in Ashland, an Al-Haramain officer came to the US, went to an Ashland bank with Seda, and together the officer and Seda withdrew over $140,000 in cashier’s checks. Id. The government argued those funds later went to the mujahideen. Id. at *4. Later, this same officer returned to Ashland and used $300,000 in travelers checks for the purchase of a prayer house. Id.  

  In 2001, Seda signed an IRS Form 990 – required for tax exempt organizations – that inaccurately reported some of the above transactions. Id. Seda was indicted for, among other things, filing a False Form 990. Id. 

  “The central issue at trial was whether the errors on the Form 990 were willful.” Id. at *5. The government characterized one witness, “Barbara Cabral,” as “critical” to its efforts to prove willfulness. Cabral’s was the only direct testimony linking Seda to efforts to fund the mujahideen. Id. at *8. 

  Seda was convicted at trial, and then the government revealed “a significant amount of evidence relating to” witness Cabral. Id. This undisclosed evidence included payments to Cabral’s husband, an offer of payment to Cabral herself shortly before trial, and undisclosed reports, draft reports, and interview notes. Id. 

  The district court found a discovery violation, but held it was not material to the conviction. Id.

Issue(s): “[T]he government concedes . . . that the withheld information is favorable to Seda and that it should have been turned over before trial. Our Brady analysis therefore hinges on materiality.” Id. at *9.

Held: “Viewing the suppressed evidence holistically in light of the other evidence, the withheld evidence undermines confidence in the outcome of the trial. . . . We conclude that Cabral's testimony was important enough that a changed perception of her credibility creates a reasonable probability of a different verdict. . . .  In light of the importance of allowing a full and fair cross examination of government witnesses whose testimony is important to the outcome of the case, Seda has established a Brady violation that merits a new trial.” Id. at *12 (internal quotations and citations omitted).  

Of Note: Here are some Sedaghty points gleaned for your next Brady argument.

• Materiality is evaluated “in terms of the suppressed evidence considered collectively, not item by item.” Id. at *9. 

• “Payments to a government witness are no small thing.” Id. at *10.

• The “uncertain nature” of an informal payment promise is particularly material, because it creates a greater incentive to please the promisor. Id.

• Exclusion of other impeachment evidence can increase the materiality of non-disclosed Brady material. Id. at *11.

How to Use: Sedaghty is a long opinion brimming good defense holdings. One important Fourth challenge relates to the overbreadth of computer searches. Judge McKeown asks, “May a broad ranging probable cause affidavit serve to expand the express limitations imposed by a magistrate in issuing the warrant itself?” Id. at *22. The Ninth’s view is clear: “We believe the answer is no. The affidavit as a whole cannot trump a limited warrant.” Id. . . . “We have never held that an affidavit could expand the scope of a legitimate warrant beyond its express limitations nor do we do so here.” Id. It’s a new Ninth rule, and a great one at that – a welcome addition to the line of Fourth Amendment law on overbroad computer searches.

                                               

For Further Reading: In an important development, A.G. Holder has warned in an editorial that the impact of sequestration on indigent defense undermines the right to a fair trial. See editorial here.

“Hello, my name is Brady” image from https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjq_IthaW4kdNZ3c2GshQq5GgLkHISqxU2tm81l_HbwNXhf0-BnAX57ohsLcdvgOwIzk_pq7gMQ6k1H1zZjUaR1Uu1gDjz4VNp602Q_qFsqFSjWIAbOFnJGs6SYi9e7vZ2qO-jTwQ/s320/hello-my-name-is-brady.jpg

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