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: Bad Forbidden, Good Forbidden - Lloyd, Lay Witnesses, and Expert Witness Disclosure

Forbidden Warrior.

Forbidden expert.

Bad films make good law.

United States v. Lloyd, 2015 WL 7873401 (9th Cir. Dec. 4, 2015), decision available here.

Players: Decision by visiting S.D. Texas DJ Lee Rosenthal, joined by Judges Berzon and Clifton. Hard-fought battle by CD Cal AFPD Kathryn Young, former CD Cal FPD Sean Kennedy, and others.

Facts: Lloyd and his co-D’s ran telemarketing “boiler rooms,” using false promises to solicit investments in movie productions (Like the classic “From Mexico with Love” and the fan favorite “Forbidden Warrior.”) Id. at *1. 

During the fraud trial, the government called witness “Agler;” a man who had worked in boiler rooms. Id. at *18. Agler opined about the information and knowledge that telemarketers have when they cold-call investors. Id. Although Agler’s opinions smacked of FRE 702 “expert” testimony, the government failed to provide the defense with pretrial expert notice.  Id. (citing Fed. R. Crim. P. 16(a)(1)(G)).   

Issue(s): “[Appellants] argue that Agler's testimony impermissibly opined on what the telemarketers who solicited and closed investments, including themselves, knew about what they were selling and about what the investors were doing and thinking. They argue that to the extent Agler expressed a lay opinion, he relied on speculation and hearsay, and to the extent he expressed an expert opinion based on specialized knowledge gained from working in boiler rooms, the government failed to give the notice required under Rule 702 of the Federal Rules of Evidence and Rule 16 of the Federal Rules of Criminal Procedure.” Id. at *20.

Held: “Under [FRE] 701, a lay witness may testify ‘in the form of an opinion’ if it is ‘(a) rationally based on the perception of the witness; (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge.’ . . . . Rule 701(a) contains a personal knowledge requirement. . . . In presenting lay opinions, the personal knowledge requirement may be met if the witness can demonstrate firsthand knowledge or observation. A lay witness's opinion testimony necessarily draws on the witness's own understanding, including a wealth of personal information, experience, and education, that cannot be placed before the jury. . . But a lay opinion witness ‘may not testify based on speculation, rely on hearsay or interpret unambiguous, clear statements . . . .” Id. at *20.

“Agler had extensive personal experience working as a telemarketer in boiler rooms soliciting and closing investments . . . . But his testimony that investors did not understand the risks, that all telemarketers knew of and took advantage of this ignorance, and that telemarketers knew that investors never made any money, was largely based on statements he heard from unidentified telemarketers and investors, well beyond his own personal experience with investors. Our cases make clear that Rule 701 prohibits opinions based on such a foundation. . . Id. at *20

"Agler's testimony was not admissible as lay opinion testimony under Rule 701.” Id. (quotations and citations omitted).

Of Note: The government first gives plain error a shot (unsuccessfully, thankfully). Id. at *19. The paragraph starting at *19 is worth a close read, as a reminder for the defense to object early and often. The Ninth finds the defense objections were preserved here – but a little more specificity would have helped.

How to Use: “But,” the government sputtered, “any error is harmless. Agler would have qualified as a FRE 702 expert.” Id. at *1. 

"Nyet" notes the Ninth, “No notice!” Id. at *21 (“The record does not present a basis to excuse the failure to provide the defense timely notice of Agler's Rule 702 expert testimony by holding it admissible as lay opinion testimony under Rule 701.”) 

Lloyd adds welcome bite to our arguments that the government can’t use experts that were not properly disclosed.

                                               

For Further Reading: The ND Ill. has a nice, sharp and clear district rule for civil expert disclosures. See rule here. 

Wouldn’t it be nice if district courts were equally persnickety about expert disclosures in criminal cases? It’s the same FRE 702, after all. 

Maybe Santa will bring us criminal district-wide expert disclosure rules in 2016?

"Forbidden Warrior” Movie poster from https://upload.wikimedia.org/wikipedia/en/6/69/Forbidden_Warrior.jpg

“Santa Clause Barrister" from http://www.reasonstobelieve.com/Merchant2/merchant.mvc?Screen=PROD&Product_Code=kac7317&Category_Code=fabriche

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

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