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: JDA is A-OK -- Gonzalez and Joint Defense Agreements

In good times and in bad, in sickness and in health, through habeas claims of ineffective assistance of counsel: what defense agreements have joined let no district court put asunder.

United States v. Gonzalez, 2012 WL 206266 (9th Cir. Jan. 25, 2012), decision available here.

Players: Big win by ND Cal AFPD Dan Blank and Research and Writing Attorney Steven Koeninger. Decision by Judge Hawkins, joined by Judge M. Smith and DJ Duffy.

Facts: Gonzalez and his wife were both charged of an insurance scam relating to a car, and with burning the car to further the scheme (a 10-year mand-min). Id. at *1. Their trials were severed. Id. Gonzalez, who went first, was convicted of the fraud and beat the burning-of-the car charge. Id.

Gonzalez offered to testify on his wife’s behalf at her trial; her counsel demurred, and the wife was convicted of all counts. Id. The wife filed a habeas alleging ineffective assistance of counsel ("I.A.C.") for failing to offer Gonzalez’s testimony. During the habeas litigation, the government sought subpoenas of the wife’s original defense counsel. Id. Gonzalez’s defense counsel, AFPD Blank, sought quashal of the subpoenas and depositions of the wife’s trial defense counsel. This motion to quash was based on an oral  joint defense agreement (“JDA”) between Gonzalez and his wife made before the original trials. Id. at *2. The district court denied the motions to quash, holding that a habeas claim of I.A.C. trumped any JDA, and that all information to and from trial counsel bearing on the I.A.C. claim was discoverable. Id. Gonzalez filed an interlocutory appeal. Id.

Issue(s): “On appeal, the government does not advance the rationale proffered by the district court. Rather, it argues that (1) Gonzalez did not sufficiently establish on the record that a JDA actually existed, (2) that such an agreement could not exist in the circumstances here, where Gonzalez’s defense was adverse to [his wife’s], and (3) even if one existed, the court correctly held that [the wife’s] section 2255 claim acted as a unilateral waiver of the privilege in these circumstances.” Id. at *3 (note omitted).

Held: 1 & 2: Existence of JDA: “Here, there was sufficient evidence in the record to support the existence of a JDA, at least to a point.” Id. at *4. “If their mutual interest is defined more narrowly [as to the wife’s innocence relating to the use-of-fire count], then it is possible that their other adverse positions did not undermine their joint defense privilege on this specific issue.” Id. at *5. 

3. Waiver by Habeas Claim: “[A]llowing unilateral waiver of confidential communications by a single codefendant without the consent of the others would likely severely undermine the rationale for the joint defense privilege in the first place . . . [W]e conclude the district court’s analyses regarding privilege versus work product and unilateral waiver by filing the section 2255 petition were in error.” Id. at *8 (citation omitted).

Of Note: Gonzalez joins United States v. Henke, 222 F.3d 633 (9th Cir. 2000) as a lead Ninth JDA decision. (Interestingly, Henke also arose out of the ND Cal). Mine Gonzalez heavily for its many JDA gems: these agreements can be oral, they can be evidenced by attorney conduct, they can be count-specific in the midst of other adverse defenses, and – most importantly – they cannot be unilaterally waived by a co-defendant asserting an I.A.C. claim.

That is a terrifically important holding: imagine a JDA that is only as good as long as all defendants remain happy and no one goes after their attorneys on a post-conviction habeas. That JDA would be worthless, making the defense of complex and multi-defendant cases impossible. Judge Hawkins, thankfully, well-understands the broader significance of the Gonzalez decision, and carefully explains why unilateral waiver of JDAs by IAC petitioners would make JDAs meaningless. Id. at *7-*8.

How to Use: As Judge Hawkins emphasizes, the defense can have an oral or an implicit JDA (and many times, it makes sense to do so). Nonetheless, sometimes the clarity of a written agreement can moot the government’s whining when the case later implodes. There are many flavors of written JDAs – from limited shared work-product agreements with minimal protections, to full “Henke” agreements with cross-duties of loyalty and confidentiality. Defense counsel interested in these various types of written JDAs can contact the ND Cal FPD for samples.               
                  
For Further Reading: JDAs are wonderfully complicated beasts that spawn ethical issues by the bushel. For a concise outline of these knotty ethical questions, see here.




Image of burning car from http://electricmini.blogspot.com/2011/06/electricity-producers-launch-free-study.html


Steven Kalar, Senior Litigator ND Cal FPD. Website at www.ndcalfpd.org



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